Ram Naresh Dwivedi vs Prakash Dwivedi
2024 Latest Caselaw 12158 MP

Madhya Pradesh High Court

Ram Naresh Dwivedi vs Prakash Dwivedi on 1 May, 2024

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                   HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
                                               ON THE 1 st OF MAY, 2024
                                           SECOND APPEAL No. 887 of 2011

                           BETWEEN:-
                           RAM NARESH DWIVEDI S/O SHRI LT. BABU LAL
                           DWIVEDI, AGED ABOUT 40 YEARS, OCCUPATION:
                           AGRICULTURIST NAKEDAR KRISHI UPAJ MANDI
                           SIHORA

                                                                             .....APPELLANT
                           (BY SHRI ARPAN SHRIVASTAV - ADVOCATE )

                           AND
                           1.    PRAKASH DWIVEDI S/O BABULAL DWIVEDI,
                                 AGED    ABOUT   38  YEARS, OCCUPATION:
                                 CULTIVATOR ASRAR BRATT CHORHAT TEH.
                                 RAMPUR BAGHELAN (MADHYA PRADESH)

                           2.    KHADIBAI W/O LATE SHRI BABULAL DWIVEDI,
                                 AGED    ABOUT    40   YEARS, OCCUPATION:
                                 CULTIVATOR VILL. ASRAR BRATT CHORHAT,
                                 TAH. RAMPUR BAGHELAN (MADHYA PRADESH)

                           3.    VIDYA PRASAD S/O LATE SHRI BABU LAL, AGED
                                 ABOUT 35 YEARS, OCCUPATION: AGRUCULTURE
                                 VILL. ASRAR BRATT CHORHAT, TAH. RAMPUR
                                 BAGHELAN (MADHYA PRADESH)

                           4.    BHUVENESHAR DWIVEDI S/O LATE SHRI
                                 RAMLOCHAN          DWIVEDI TAH.  RAMPUR
                                 BAGHELAN, DISTT. SATNA (MADHYA PRADESH)

                           5.    TEJBHAN DWIVEDI S/O RAMLOCHAN DWIVEDI,
                                 AGED    ABOUT    53   YEARS, OCCUPATION:
                                 CULTIVATOR VILL. ASRAR BRATT CHORHAT,
                                 TAH. RAMPUR BAGHELAN (MADHYA PRADESH)

                           6.    BADRI PRASAD S/O LATE SHRI VAKUNTH
                                 PRASAD, AGED ABOUT 46 YEARS, OCCUPATION:
                                 CULTIVATION VILL. ASRAR BRATT CHORHAT,
                                 TAH. RAMPUR BAGHELAN (MADHYA PRADESH)
Signature Not Verified
Signed by: AKANKSHA
MAURYA
Signing time: 02-05-2024
11:24:29
                                                              2

                           7.    ANADN SWAROOP S/O LATE RAM SEWAK
                                 DWIVEDI, AGED ABOUT 56 YEARS, OCCUPATION:
                                 CULTIVATOR & SERVICE VILL. ASRAR BRATT
                                 CHORHAT, TAH. RAMPUR BAGHELAN (MADHYA
                                 PRADESH)

                           8.    ANAND PRAKASH S/O LATE RAM SEWAK, AGED
                                 ABOUT 53 YEARS, OCCUPATION: CULTIVATION &
                                 SERVICE VILL. ASRAR BRATT CHORHAT, TAH.
                                 RAMPUR BAGHELAN (MADHYA PRADESH)

                           9.    JAY PRAKASH DWIVEDI S/O LATE RAM SEWAK,
                                 AGED    ABOUT    53   YEARS, OCCUPATION:
                                 CULTIVATOR & SERVICE VILL. ASRAR BRATT
                                 CHORHAT, TAH. RAMPUR BAGHELAN (MADHYA
                                 PRADESH)

                           10.   THAGIYA D/O LATE RAM SEWAK, AGED ABOUT 45
                                 YEAR S, VILL. ASRAR BRATT CHORHAT, TAH.
                                 RAMPUR BAGHELAN (MADHYA PRADESH)

                           11.   COLLECTOR / DISTRICT MAGISTRATE THE
                                 STATE OF MADHYA PRADESH SATNA (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI VINOD KUMAR MISHRA - ADVOCATE FOR THE RESPONDENTS
                           NO. 4, 5 , 8 AND 9 AND SHRI SURDEEP KHAMPARIYA - PL FOR THE
                           STATE )

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

Heard on admission.

Appellant/plaintiff is aggrieved by the judgment and order dated 16.7.2009 in civil suit No. 71A/2005 whereby suit of the appellant/plaintiff No. 2 for partition, declaration and permanent injunction has been dismissed but counter claim of defendant/respondent for partition and possession of 3/4 share of the disputed land at village Lalpur Tehsil Amarpatan District Satna Khasra No. 146/2 Rakwa 1.09, Khasra No. 156/2 Rakwa 0.43 and Khasra No. 157/2

Rakwa 0.33 has been decreed.

The above judgment and decree of trial court was assailed in first appeal No.67/2010 by judgment dated 19.11.2002 appeal was dismissed affirming the relief of partition and possession of 3/4 share in the disputed land situated at village Lalpur.

Learned counsel for the appellant submits that judgment and decree passed by learned courts below are perverse. They have not appreciated the documentary and oral evidence in right perspective. For this learned counsel has invited attention of this court towards sale deed 1.1.1966 (Ex.P/3) and sale deed dated 11.2.1970 (Ex.P/52) , partition deeds (Ex.D/1 and D/2). Learned counsel for the appellant has also invited attention of this court towards plaint, written statement para 1 and findings on issue no. 7 and 8 in paragraph No. 21 of the judgment dated 16.7.2009 of the trial court. He has also drawn attention of this court towards paragraph No. 28 and 29 of the judgment dated 19.11.2010 passed by first appellate court.

First appellate court in paragraph No. 28 and 29 of its judgment referring sale deed (Ex.P/52) has concluded that up to the year 1980 the properties were undivided property of joint hindu family. The disputed property is purchased through sale deed Ex.P/2 of dated 11.2.1970 when the joint hindu family was having undivided property. The joint hindu family has land near about 95 acres.

The consideration in sale deed (Ex.P/2) is only Rs.800/-. The agricultural land of HUF was more than enough to earn consideration amount of Rs.800/-. On this first appellate court concluded that there was sufficient property as nucleus of HUF to pay consideration of sale deed (Ex.P/52). Onus to prove that disputed property was self acquired property of the appellant/plaintiff was on him but he failed to discharge this burden. Therefore, disputed property cannot

be termed as self acquired property of the appellant. This finding of first appellate court is immaculate, impregnable and cannot be disturbed.

The findings given by the courts below are not shown to be perverse or contrary to the record. This court is not obliged to re-appreciate the evidence in second appeal. No substantial questions of law is involved. There is no justification in disturbing the findings recorded by the court below. The appeal fails and is hereby dismissed.

(BINOD KUMAR DWIVEDI) JUDGE Akm