Rodya vs Mulya Bai
2024 Latest Caselaw 12176 MP

Madhya Pradesh High Court

Rodya vs Mulya Bai on 1 May, 2024

                           1

    IN THE HIGH COURT OF MADHYA PRADESH
                AT G WA L I O R
                         BEFORE
    HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
                ON THE 1ST OF MAY, 2024
              SECOND APPEAL No. 80 of 2007

BETWEEN:-
     RODYA S/O SHRI JAGANNATH ,
     AGED   ABOUT    64  YEARS,
     OCCUPATION: AGRICULTURIST
     R/O VILL. JOGIRADA TEH.
     KUMBHARAJ, DISTT. GUNA
     (MADHYA PRADESH)
                                          .....APPELLANT
(BY MS. SIMRON KOTHARI- ADVOCATE)
AND
1
    MULYA BAI W/O BHOLARAM
    OCCUPATION:       R/O    VILL.
    JOGIRADA,    TEH.    KUMBHRAJ
    DISTT. GUNA (MADHYA PRADESH)

2 BADRICHAND S/O RAMKISHAN,
  AGED     ABOUT    64   YEARS,
  OCCUPATION:      R/O     VILL.
  MOIKHEJDA, TEH. CHACHODA,
  DISTT. GUNA. (MADHYA PRADESH)
3 RAMSWAROOP S/O BANSILAL,
  AGED    ABOUT      34  YEARS,
  OCCUPATION:       R/O   VILL.
  JOGIRADA,    TEH.   KUMBHRAJ,
  DISTT GUNA. (MADHYA PRADESH)
                                      2

4. PHOOL SINGH S/O JAMNALAL
   MEENA , AGED ABOUT 44 YEARS,
   OCCUPATION:      R/O   VILL.
   JOGIRADA,   TEH.   KUMBHRAJ,
   GUNA. (MADHYA PRADESH)
     LR's OF RESPONDENT NO.4
     1. SMT BHAGWATI BAI W/O LATE
     SHRI PHOOL SINGH, AGED 48
     YEARS,
     2. KALLU S/O LATE SHRI PHOOL
     SINGH AGED 20 YEARS,
     3. BADRI S/O LATE SHRI PHOOL
     SINGH AGED 18 YEARS,
     4. SANJU S/O LATE SHRI PHOOL
     SINGH AGED 16 YEARS,
     ALL R/O VILL. JOGIRADA, TEH.
     KUMBHRAJ,   GUNA.   (MADHYA
     PRADESH)
5. SHRI KISHAN S/O SHRI SITRAM,
   AGED    ABOUT     44  YEARS,
   OCCUPATION:      R/O    VILL.
   JOGIRADA,   TEH.   KUMBHRAJ,
   GUNA. (MADHYA PRADESH)
6 STATE OF M.P. THROUGH THE
  COLLECTOR, GUNA, DISTRICT
  GUNA (MADHYA PRADESH)
                                                        .....RESPONDENTS
(SHRI N.S. TOMAR - GOVERNMENT ADVOCATE FOR RESPONDENT No.6)

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       This appeal coming on for admission this day, the Court
passed the following:

                           JUDGEMENT

1. The present appeal under Section 100 of the C.P.C. is against

the judgment and decree dated 30.10.2006 passed by the Additional District Judge, Chachoda, District Guna (M.P.) in Civil Appeal No.34-A/2006 affirming the judgment dated 29.4.2006 passed by the Civil Judge, Class-I, Chachoda, District Guna in Civil Suit No.3-A/2002 whereby the suit for declaration and permanent injunction has been dismissed in respect of the suit land situated at village Jogirada survey No.35 area 0.209 hectre, survey No.40/2 area 2.978 hectre, survey no.41 area 0.105 hectre, survey no.55 area 3.051 hectre, survey no.85 area 0.272 hectre survey no.91 area 0.157 hectre, survey no.106 area 4.735 hectre, survey 144 area 0.052 hectre, survey no.198 area 0.021 hectre, survey no.199 area 2.654 hectre, survey no.202 area 0.909 hectre, survey no.219 area 0.063 hectre, survey no.293 area 0.585 hectre and survey no.129 and 302 area 0.031 hectre and survey no.299 area 0.167 hectre total area 15.988 hectre and ½ share in survey no.40/1 area 3.250 hectre (hereinafter shall be referred as " the suit land").

2. It is submitted by the learned counsel for the appellant that the judgment and decree passed by the learned Courts below is not based on proper appreciation of the evidence and material on record ignoring the statements of Rodya (PW-1) and Ranglal (PW-2) who have clearly stated that defendant No.1 came with the appellant's mother Kasturi Bai as maid (Lemeta) at the time of her marriage, hence, the order passed by the Courts below is

liable to be set aside. Both the Courts below have failed to consider that the father of the plaintiff had died prior to year 1956 and right of the half share of the suit property cannot be created according to Succession Act. No relationship of brother and sister has been proved between the appellant/plaintiff and defendant/respondent No.1 and in absence of such relationship defendant No.1 is not entitled to get half share of the suit property because defendant No.1 is not born out of the wedlock between appellant's father and Kasturi Bai.

3. It is further submitted that the impugned judgment and decree is passed on the ground that name of the defendant No.1 has been mentioned in the Revenue record but that matter was remanded back to the Tehsildar, Teh Khumbraj by the Court of the Commissioner; therefore, on the basis of such entry, the finding of the learned Courts below cannot be confirmed; therefore, prayed to set aside the judgment and decree of the Courts below and to decree the suit filed on behalf of plaintiff for declaration and injunction.

4. Per contra, learned counsel for the State opposed the prayer by submitting that trial court as well as appellate court have rightly dismissed the suit and there is no ground for interference in this appeal.

5. It is not in dispute in the light of averments and evidence that the suit land was of the ownership of the plaintiff- Jagannath and

Jagannath was first married with Parvati Bai but Parvati Bai was issueless; therefore, Jaganath solemnized second marriage with Kasturi Bai. Jaganath and Kasturi Bai both have died.

6. It is submitted by the learned counsel for the appellant that defendant No.1 Mulya Bai came with Kasturi Bai as maid (Lameta) and therefore, she was not the daughter of Jaganath and Kasturi Bai and resultantly, she has no right in the suit property but she is claiming half portion of the suit land. That apart she has sold some part of the disputed land to defendants No. 2 to 5. Such sell is without any right and title and therefore, it is illegal and void. With regard to this pleadings, the burden of proof was on plaintiff but plaintiff has utterly failed in proving this fact. Though, Rodya (PW-

1) and Ranglal (PW-2) have deposed regarding these facts, but that has been contended by the defendant witnesses Mulya Bai (DW-1) and Kamarlal (DW-2). No other witness has been adduced by plaintiff who was present at the time of second marriage (Natra) between Jagannath and Kasturi Bai and who has witnessed Mulya Bai coming with Kasturi Bai as maid (Lameta). In this regard, independent witness qua resident of the same village or relative of Jagannath might be adduced on behalf of the plaintiff but in absence of such evidence and in absence of any proof that such evidence could not available with due efforts, the pleadings and stand of plaintiff cannot be said to be established.

7. It is well settled that plaintiff has to prove his case with cogent and reliable evidence. He cannot take the benefit of

weakness of defendant. Here, in this case also in absence of available best cogent and reliable evidence, plaintiff has failed to prove the contention as stated above. Neither trial Court nor appellate Court have committed any illegality or irregularity in arriving at the conclusion. The suit and the appeal have rightly been dismissed by the Courts below. There is no cogent ground to interfere with the findings of the court below. Learned counsel for the appellant has failed to establish that any substantial question of law arises in this appeal.

8. Consequently, the appeal fails and is hereby dismissed in limine.

                                                                                    (RAJENDRA KUMAR VANI)
  Ahmad*                                                                                    JUDGE

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

MOHD AHMAD ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=76cd720db57b34b7642c70ed7eaf9b624f80d89cea07317bb14d87e 882cf0d0f, postalCode=474001, st=Madhya Pradesh, serialNumber=F3F56CD397D8CD6A76865A062F285CC6010CB90C4A13B78 A9AEC4BA8C65B56BA, cn=MOHD AHMAD Date: 2024.05.08 14:29:41 +05'30'