Madhya Pradesh High Court
Babu Khan vs Jebun Bai (Legal Heir Of Munshi Khan) on 14 May, 2024
Author: Hirdesh
Bench: Hirdesh
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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. 4 of 2020
BETWEEN:-
BABU KHAN S/O SHAIKH AHMED, AGED ABOUT 72 YEARS,
OCCUPATION: AGRICULTURE VILLAGE KHAKHRI, TEHSIL
SHAMGARH, DISTRICT MANDSAUR /PRESENTLY AT RATNAWAT
COLONY, SHAMGARH, DISTRICT-MANDSAUR (MADHYA PRADESH)
.....APPELLANT
(SHRI SHASHWAT SETH, LEARNED COUNSEL FOR THE APPELLANT)
AND
1. JEBUN BAI (LEGAL HEIR OF MUNSHI KHAN) W/O MUNSHI KHAN,
AGED ABOUT 53 YEARS, REDAAS MARG, NEAR MASJID, TEHSIL
GAROTH (MADHYA PRADESH)
2. MAMMAD @ MANGU S/O MUNSHI KHAN, AGED ABOUT 35 YEARS,
R/O: REDAAS MARG, NEAR MASJID , TEHSIL GAROTH, DIST.
MANDASAUR (MADHYA PRADESH)
3. HASINA BI D/O MUNSHI KHAN, AGED ABOUT 18 YEARS, R/O:
REDAAS MARG, NEAR MASJID , TEHSIL GAROTH, DIST.
MANDASAUR (MADHYA PRADESH)
4. ALLANOOR S/O SHAIKH CHAND MOHAMMAD, AGED ABOUT 47
YEARS, OCCUPATION: AGRICULTURE R/O: VILLAGE KHAKRI ,
TEHSIL SHAMGARH , DIST MANDASAUR (MADHYA PRADESH)
5. RAGHU SINGH S/O SHANKAR SINGH, AGED ABOUT 56 YEARS, R/O:
VILLAGE KHAKRI , TEHSIL SHAMGARH , DIST MANDASAUR
(MADHYA PRADESH)
6. CHAIN SINGH S/O SHIV SINGH, AGED ABOUT 57 YEARS, R/O:
VILLAGE KHAKRI , TEHSIL SHAMGARH , DIST MANDASAUR
(MADHYA PRADESH)
7. HOKAM BAI W/O CHAIN SINGH, AGED ABOUT 54 YEARS, R/O:
VILLAGE KHAKRI , TEHSIL SHAMGARH , DIST MANDASAUR
(MADHYA PRADESH)
8. STATE OF MADHAYA PRADESH THROUGH DISTRICT COLLECTOR
COLLECTOR DEWAS (MADHYA PRADESH)
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.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
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This appeal coming on for admission this day, the court passed the
following:
JUDGMENT
Present second appeal has been filed by the appellant/plaintiff
under Section 100 of the Code of Civil Procedure, 1908 being aggrieved
by the judgment and decree dated 30.09.2019 passed by II Additional
District Judge, Garoth, District-Mandsaur in RCA No.1-A/2013
dismissing the suit filed for declaration and injunction, confirming the
judgment and decree dated 26.11.2012 passed by Civil Judge, Class-II,
Gartho, Mandsaur in civil suit No.22-A/2010.
2. Brief facts of the case are that Shaikh Ahmed, who is father of the
appellant/plaintiff resided in village-Khakri, Tehsil-Shamgarh, District-
Mandsaur and had two sons, plaintiff/appellant Babu Khan and Shaikh
Chand Mohammad and a daughter Hussaini Bai. Hussaini Bai was
married but lost her husband, therefore, returned to her paternal house.
Shaikh Ahmad bought a land from Mr. Dhura for his daughter Hussaini
Bai and asked his elder son Shaikh Chand Mohammed to get sale deed
executed in her favour but, Shaikh Chand Mohammed fraudulently
obtained sale deed in his own name and concealed this fact from the
family. At the time of mutation, after the death of Shaikh Chand
Mohammed in the year 1998, appellant came to know that instead of
procuring the land bearing survey No.435 (new) in the name of sister
Hussaini Bai, Shaikh Chand Mohammed obtained the land in his own
name. When this dispute arose, Husaaini Bai mentioned that she is
making use of the said land and, therefore, she would continue to do the
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same and after her death, the said land shall be divided equally between
the appellant and respondent Nos.1 to 4.
3. In the year 2002, during partition amongst appellant and legal heirs
of his brother Shaikh Chand Mohammed and his sister Hussaini Bai, it
was decided that the land bearing survey No.435 (new) would be kept by
Hussaini Bai till her death and thereafter, would be divided into half
between appellant and defendant. After the death of Hussaini Bai,
plaintiff asked for partition of the land of Hussaini Bai but defendants
refused it then he filed a suit for declaration, injunction and recovery of
possession.
4. Respondents filed their written statements and denied all
averments.
5. Trial court framed issues and after taking evidence dismissed the
suit by judgment and decree dated 26.11.2012 by holding that suit is
barred by limitation and appellant could not prove that respondents did
not have right to sell their share of property. Appellant filed an appeal
against the judgment of the trial court which was affirmed by the first
appellate court by dismissing the appeal vide judgment and decree dated
30.09.2019.
6. Being aggrieved by the judgment and decree passed by the first
appellate court, this second appeal was filed by the appellant and argued
that judgment and decree passed by both the courts below are illegal and
are not based on proper appreciation of evidence. Both the courts below
have failed to consider oral and documentary evidence produced by the
appellants and both the courts have committed error in dismissing the suit
preferred by the appellant. The findings of both the courts are perverse
and against the evidence available on record, hence, it is submitted that
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appeal deserves to be admitted on the substantial questions of law
proposed by the appellant.
7. Heard the learned counsel for the appellant and perused the entire
record of both the courts with due care.
8. From the perusal of the record of the trial court, it appears that
appellant filed a civil suit for declaration of title and permanent injunction
and pleaded that survey No.435 area 0.76 hectare was purchased by
father of the plaintiff and it was a joint family property. Learned counsel
for the appellant submits that father of the plaintiff bought a land from
Mr. Dhura for his daughter Hussaini Bai and asked his elder son Shaikh
Chand Mohammed for getting the sale deed executed in her favour but,
Shaikh Chand Mohammed fraudulently obtained the sale deed in his own
name and concealed this fact from the family. So it is the duty of plaintiff
to prove his case that suit land was basically purchased in the name of
Hussaini Bai and sale deed was executed fraudulently in favour of
Shaikh Chand Mohammed but, appellant/plaintiff is unable to adduce
substantial evidence that this property was purchased by his father and
money was paid by his father and father of defendants has fraudulently
executed the sale deed in the name of his own sister Hussaini Bai.
Plaintiff is unable to prove his burden, therefore, on the basis of the
documents adduced before the trial court and evidence before the trial
court, plaintiff is unable to prove that suit land is not joint family
property. So on the basis of the aforesaid evidence, trial court as well as
first appellate court have given concurrent finding that it was a joint
family property.
9. In light of the aforesaid discussion, this Court is of the considered
opinion that the impugned judgments passed by both the courts below are
well reasoned and based on due appreciation of oral as well as
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documentary evidence available on record. The findings recorded by both
the courts are concurrent finding of facts and appellant/defendant has
failed to show as to how the finding of facts recorded by the courts are
illegal, perverse and based on no evidence. Thus, no substantial question
of law arises in this appeal, hence, the present second appeal is dismissed
at admission stage itself.
(HIRDESH)
JUDGE
N.R.
