Madhya Pradesh High Court
Arjun Kumar vs Ashok Kumar on 14 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 14th OF MAY, 2024
SECOND APPEAL No. 1876 of 2022
BETWEEN:-
ARJUN KUMAR S/O LATE SHRI TULSIRAM KAUSHAL, AGED
ABOUT 71 YEARS, OCCUPATION: LEGAL PROFESSION 82/1,
KHARI BAWADI (MADHYA PRADESH)
.....APPELLANT/DEFENDANT
(SHRI LOKESH MEHTA, ADVOCATE FOR APPELLANT)
AND
ASHOK KUMAR S/O LATE SHRI TULSIRAM KAUSHAL, AGED
1.
ABOUT 55 YEARS, KHARI BAWADI (MADHYA PRADESH)
KU. RADHABAI D/O LATE SHRI TULSIRAM KAUSHAL, AGED
2. ABOUT 61 YEARS, 82/1, KHARI BAWADI, TEHSIL AND
DISTRICT DEWAS (MADHYA PRADESH)
KU. VIDHYABAI D/O LATE SHRI TULSIRAM KAUSHAL, AGED
3. ABOUT 57 YEARS, 82/1, KHARI BAWADI, TEHSIL AND
DISTRICT DEWAS (MADHYA PRADESH)
SMT. SHAKUNTALABAI W/O AVDHESH GUPTA D/O
4. TULSIRAM, AGED ABOUT 62 YEARS, 82/1, KHARI BAWADI,
TEHSIL AND DISTRICT DEWAS (MADHYA PRADESH)
KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
DECEASED THROUGH LEGAL HEIRS SMT. BINUBAI W/O
5. KISHORE KUMAR (DECEASED) 36 LABOUR COLONY
BALGARH, TEHSIL AND DISTRICT DEWAS (MADHYA
PRADESH)
KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
DECEASED THROUGH LEGAL HEIRS AJAY KUMAR S/O
KISHOR KUMAR (DECEASED) THROUGH LEGAL HEIRS SMT.
6.
RACHANA W/O AJAY KUMAR, AGED ABOUT 40 YEARS, 36
LABOUR COLONY BALGARH, TEHSIL AND DISTRICT DEWAS
(MADHYA PRADESH)
7. KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 25-05-
2024 10:27:16
2
DECEASED THROUGH LEGAL HEIRS AJAY KUMAR S/O
KISHOR KUMAR (DECEASED) THROUGH LEGAL HEIRS
ADITYA KUMAR S/O AJAY KUMAR, AGED ABOUT 17 YEARS,
36 LABOUR COLONY, BALGARH, TEHSIL AND DISTRICT
DEWAS (MADHYA PRADESH)
KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
DECEASED THROUGH LEGAL HEIRS VIJAY KUMAR S/O
8. KISHOR KUMAR, AGED ABOUT 46 YEARS, 36 LABOUR
COLONY BALGARH, TEHSIL AND DISTRICT DEWAS
(MADHYA PRADESH)
KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
DECEASED THROUGH LEGAL HEIRS SMT. ANITA W/O
9. RAMESHCHANDRA D/O KISHOR KUMAR, AGED ABOUT 53
YEARS, 36 LABOUR COLONY, BALGARH, TEHSIL AND
DISTRICT DEWAS (MADHYA PRADESH)
KISHOR KUMAR S/O LATE SHRI TULSIRAM KAUSHAL
DECEASED THROUGH LEGAL HEIRS SMT. SUNITA W/O
10. DINESH D/O KISHORE KUMAR, AGED ABOUT 48 YEARS, 36
LABOUR COLONY, BALGARH, TEHSIL AND DISTRICT
DEWAS (MADHYA PRADESH)
.....RESPONDENTS/PLAINTIFFS
(NONE FOR THE RESPONDENTS)
This appeal coming on for orders this day, the court passed
the following:-
ORDER
Appellant/defendant has preferred this second appeal
under Section 100 of Code of Civil Procedure, 1908, against the
judgment and decree dated 07.07.2022 passed by Second
Additional District Judge, District Dewas (MP) in Regular Civil
Appeal No.46/2018 arising out of the judgment and decree dated
18.05.2018 passed in Regular Civil Suit No.3A/2010 by Third
Civil Judge, Class-I, Dewas (MP) by which the appellate court
has affirmed the judgment and decree passed by the trial court
and has dismissed the appeal filed by the defendant.
(2) The brief facts of the case are that the
respondents/plaintiffs No.1 to 4 have preferred a suit for
declaration and also for partition for the house situated at No.82
Gali No.1, Khari Bawadi, District Dewas (MP) and according to
respondents No.1 to 4 the said house is originally belong to the
Ramesh Kumar S/o Jeetmal Agrawal and on 01.06.1976, the
father of respondents No.1 to 4 had purchased the house in the
consideration amount of Rs.11000/- and the present respondents
No.1 to 4 being the legal heirs of the property is entitled to one
sixth share in the property.
(3) The respondents/plaintiffs No.2 filed the reply and also
filed the counter claim alleging that the house situated at 82
Khari Bawadi was purchased by him as he is the only earning
member in the family and at the time of purchase, his father was
not well as he was suffering from Asthama and at the time of
purchase he paid the first amount as he got his salary, gratuity
and PF. So it is his self acquired property.
(4) The trial court has framed the issue and on the basis of
pleadings and after taking the evidence has dismissed the
counter claim filed by the appellant/defendant.
(5) Being aggrieved from the aforesaid judgment and decree,
the appellant/defendant has filed the appeal before the first
appellate court and the first appellate has dismissed the appeal
filed by the defendant and has affirmed the judgment and decree
passed by the trial court. He further submits that both the courts
below have committed grave error in dismissing the suit and
appeal filed by the appellant/defendant. Thus, on the basis of
above grounds, substantial question of law arises for
consideration in second appeal and prays that appeal be
admitted for final hearing.
(6) Counsel for the appellant/defendant has argued that
appellant/defendant has purchased the suit house in the name of
his father and his father has purchased the same from his salary,
gratuity and PF so this is his self acquired property because he
had purchased the same from his own income and that is why it
is not the ancestral property.
(7) I have heard counsel for the appellant/defendant and have
perused the records of the case with due care.
(8) From the perusal of records of both the courts below, it is
apparent that it is a case of concurrent findings of facts i.e. both
the Courts below have dismissed the suit/appeal filed by the
appellant/defendant.
(9) On going through the trial court record and material
evidence on record and only to adduce the substantial evidence,
it was found that the suit property was purchased by him on his
own income and therefore on the basis of aforesaid evidence and
document, the trial court has given concurrent finding that the
appellant/defendant has failed to prove the fact that the property
was purchased by him on his own income and it is his self
acquired property. So the burden of proof lies upon the
appellant/defendant to show that he has purchased the property
on his own income.
(10) Thus, in view of aforesaid discussion, this Court is of the
considered opinion that the impugned judgments passed by trial
court and first appellate court are well reasoned and based upon
the due appreciation of oral as well as documentary evidence
available on record. The findings recorded by trial court and first
appellate court are concurrent findings of facts. The
appellant/defendant has failed to show that how the findings of
facts recorded by trial court and first appellate court are illegal,
perverse and based on no evidence. Thus, no substantial
question of law arises for consideration in the present second
appeal.
(11) Accordingly, the present second appeal sans merit and is
hereby dismissed.
(12) Certified copy, as per Rules.
(HIRDESH)
Arun/- JUDGE
