Madhya Pradesh High Court
Ganga Yadav vs Govindd Prasad Yadav on 22 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22 nd OF MAY, 2024
SECOND APPEAL No. 2261 of 2023
BETWEEN:-
1. GANGA YADAV S/O LATE MOLAI YADAV, AGED
ABOUT 75 YEARS, R/O/O VILLGAE KANSA TEHSIL
AND DUSTRUCT ANUPPUR (MADHYA PRADESH)
2. RAMRASHISH S/O LATE RAMMEELAN YADAV,
AGED ABOUT 53 YEARS, R/O VILLAGE KANSA
TEHSIL AND DISTRICT ANUPPUR (MADHYA
PRADESH)
3. BARDI YADAV S/O LATE RAMMILAN YADAV,
AGED ABOUT 49 YEARS, R/O VILLAGE KANSA
TEHSIL AND DISTRICT ANUPPUR (MADHYA
PRADESH)
4. RAMU YADAV S/O LATE SUKHI YADAV, AGED
ABOUT 48 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
5. SUKHI YADAV S/O LATE RAMMEELAN YADAV,
AGED ABOUT 46 YEARS, R/O VILLAGE KANSA
TEHSIL AND DISTRICT ANUPPUR (MADHYA
PRADESH)
6. KASHI YADAV S/O GANGA YADAV, AGED ABOUT
45 YEARS, R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
7. RAJU YADAV S/O GANGA YADAV, AGED ABOUT 49
YE A R S , R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
8. RAJAN YADAV S/O GANGA YADAV, AGED ABOUT
46 YEARS, R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
9. DUASIYA S/O LATE RAMMEELAN YADAV, AGED
ABOUT 72 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 5/24/2024
6:13:54 PM
2
.....APPELLANTS
(BY SHRI SOMESH SHUKLA -ADVOCATE)
AND
1. GOVINDD PRASAD YADAV S/O MANULAL YADAV,
AGED ABOUT 62 YEARS, R/O VILLAGE KANSA
TEHSIL AND DISTRICT ANUPPUR (MADHYA
PRADESH)
2. SMT. SAROJ YADAV W/O BAGWANSWARUP D/O
GOVIND YADAV, AGED ABOUT 36 YEARS, R/O
VILLAGE KANSA TEHSIL AND DISTRICT
ANUPPUR (MADHYA PRADESH)
3. KAMLESH YADAV S/O GOVIND PRASAD YADAV,
AGED ABOUT 40 YEARS, R/O VILLAGE HARRI PS
SOHAGPUR DISTRICT (MADHYA PRADESH)
4. PRAKASH YADAV S/O GOVIND PRASAD YADAV,
AGED ABOUT 34 YEARS, R/O VILLAGE HARRI PS
SOHAGPUR DISTRICT (MADHYA PRADESH)
5. AMARNATH YADAV S/O GOVIND PRASAD YADAV
R/O VILLAGE HARRI PS SOHAGPUR DISTRICT
(M.P)
6. JAMUNA YADAV S/O LATE MATRU YADAV, AGED
ABOUT 68 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
7. SITARAM S/O DAVIYA YADAV, AGED ABOUT 49
YE A R S , R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
8. SIYARAM S/O DAVIYA YADAV, AGED ABOUT 45
YE A R S , R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
9. RAMKUMAR S/O DAVIYA YADAV, AGED ABOUT 45
YE A R S , R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
10. BELA W/O SATTU YADAV D/O LATE RAMMEELAN
YADAV R/O VILLAGE KODAILI POST RAMPUR P.S.
TEHSIL AND DISTRICT ANUPPUR (M.P)
11. KAPSIYA W/O CHATRADHARI D/O LATE
RAMMEELAN (DEAD) THROUGH LRS.
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 5/24/2024
6:13:54 PM
3
CHATRADHARI S/O SONMAT YADAV, AGED
ABOUT 74 YEARS, R/O VILLAGE LODHI POST
JAMGAO PS KOTMA TEHSIL TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
12. HORILAL YADAV S/O CHATRADHARI YADAV,
AGED ABOUT 45 YEARS, R/O VILLAGE LODHI
POST JAMGAO PS KOTMA TEHSIL TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
13. RAVILAL YADAV S/O CHATRADHARI YADAV,
AGED ABOUT 38 YEARS, R/O VILLAGE LODHI
POST JAMGAO PS KOTMA TEHSIL TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
14. DOPATI YADAV D/O CHATRADHARI W/O LAXMI
YADAV, AGED ABOUT 50 YEARS, R/O PODI TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
15. RIYA BAI D/O CHATRADHARI W/O BADRI YADAV
R/O VILLAGE BIJOUDI TEHSIL AND DISTRICT
(M.P)
16. GUDDI YADAV D/O CHATRADHARI, AGED ABOUT
35 YEARS, R/O VILLAGE HARDI TEHSIL
SOHAGPUR DISTRICT (MADHYA PRADESH)
17. PREMILAL S/O DIVIYA, AGED ABOUT 45 YEARS,
R/O VILLAGE KANSA TEHSIL AND DISTRICT
ANUPPUR (M.P)
18. PARVATI W/O DAVIYA, AGED ABOUT 68 YEARS,
R/O VILLAGE KANSA TEHSIL AND DISTRICT
ANUPPUR (M.P)
19. PARVATI W/O DAVIYA, AGED ABOUT 68 YEARS,
R/O VILLAGE KANSA TEHSIL AND DISTRICT
ANUPPUR (M.P)
20. SAWAMEDIN S/O SARASADEEN YADAV, AGED
ABOUT 70 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
21. BUWANESHWAR S/O SARSADEEN YADAV, AGED
ABOUT 72 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
22. RAMKALI W/O LATE JAGDEESH YADAV, AGED
ABOUT 50 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 5/24/2024
6:13:54 PM
4
23. ANIL S/O LATE JAGDEESH YADAV, AGED ABOUT
28 YEARS, R/O VILLAGE KANSA TEHSIL AND
DISTRICT ANUPPUR (MADHYA PRADESH)
24. MADUWAN S/O LATE JAGDEESH YADAV, AGED
ABOUT 24 YEARS, R/O VILLAGE KANSA TEHSIL
AND DISTRICT ANUPPUR (MADHYA PRADESH)
25. SHILOCHANA W/O AWDESH YADA D/O LATE
JAGDISH YADAV, AGED ABOUT 26 YEARS, R/O
VILLAGE DHUWAR PS AND TEHSIL PALI
DISTRICT (M.P)
26. SHADNA W/O SHIVA YADAV D/O LATE JAGDISH
YADAV, AGED ABOUT 24 YEARS, R/O VILLAGE
AMULIHA PS AND TEHSIL PALI DISTRICT (M.P)
27. STATE OF M.P. THROUGH COLLECTOR ANUPPUR
DISTRICT ANUPPUR (M.P)
.....RESPONDENTS
(SHRI SOURABH SINGH THAKUR - ADVOCATE FOR THE RESPONDENTS
1-4 SHRI SATISH PATERIYA - PANEL LAWYER FOR RESPONDENT
21/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the appellants/defendants 1-5,
10-12 & 14 challenging judgment and decree dated 18.08.2023 passed by First
District Judge, Anuppur, District Anuppur, in RCA No.21-A/2022 affirming
judgment and decree dated 25.08.2022 passed by Second Civil Judge Junior
Division, Anuppur in RCS No.78-A/2020 whereby original plaintiff (Smt.
Sirwatiya, now dead, through LRs)' suit for declaration of title, permanent
injunction and for restoration of possession in respect of agriculture lands
described in relief clause, total area 4.021 hectare has been decreed and at the
same time, counter claim filed by the appellants has also been dismissed in
respect of land bearing Survey Nos.137/2 & 140/2.
2. In short the facts are that originally the land in question belonged to
parties' common ancestor namely Domari, who was succeeded by three sons,
namely Molai, Dadnuram and Matru. The plaintiff being daughter of Dadnuram
is claiming 1/3 share in the suit property. The appellants and other defendants
are claiming rights in the property through Molai and Matru. It is alleged in the
plaint that there was partition of the suit property on 26.03.2001 before the
Tahsildar in which, the suit lands fell in the share of plaintiff over which she
remained in cultivating possession but she was dispossessed lateron, hence civil
suit was filed.
3. In the suit filed on 05.09.2014 counter claim was filed by the appellants
in respect of the land bearing Survey Nos.137/2 & 140/2 alleging it to be their
self acquired property and prayed for relief of declaration of title and permanent
injunction. After evidence, trial Court decreed the suit filed by the plaintiff and
dismissed appellants' counter claim. Civil Appeal filed by the appellants has
also been dismissed by the impugned judgment.
4. Learned counsel for the appellants/defendants submits that although
partition took place before the Tahsildar on 26.03.2001, but the plaintiff did not
come in possession and she never cultivated the land and on the contrary the
appellants/defendants remained in cultivating possession of the entire land. He
submits that although the plaintiff came with the case that she was dispossessed
by the defendants but, the factum of dispossession has not been proved by
plaintiff in her evidence and even she has admitted that she never remained in
possession and the defendants were in possession of the entire land.
5. As such, he submits that Courts below have committed illegality in
decreeing the suit, inspite of the fact that the suit filed in the year 2014 being
filed after 12 years, was barred by limitation. He further submits that the land
bearing Survey Nos.137/2 & 140/2 is self acquired property of the
appellants/defendants, which has been proved by the appellants but Courts
below have committed illegality in dismissing the counter claim also. With these
submissions he prays for admission of the second appeal.
6. Learned counsel appearing for the respondents/plaintiffs supports the
impugned judgment and decree passed by Courts below and prays for
dismissal of the second appeal.
7. Heard learned counsel for the parties and perused the record.
8. Relationship amongst the parties as stated above is not in dispute and
according to the genealogical tree the plaintiff being daughter of Dadnuram is
having 1/3 share in the suit property. Order of partition dated 26.03.2001
(Ex.P/35) shows that partition took place amongst the parties whereby the
disputed land fell in the share of plaintiff. There is nothing on record that any of
the parties to the suit challenged the order of partition passed by Tahsildar
before superior revenue Courts or before the civil Court. The dispute being
raised by the defendants is to the effect that after partition of the land, the
plaintiff did not come in possession but the defendants remained in possession.
Perusal of written statement and judgment and decree of Courts below shows
that the defendants have not taken any plea of adverse possession in respect of
the suit lands.
9. As such, in the light of decision of Supreme Court in the case of
Indira vs. Arumugam and another (1998) 1 SCC 614, even if the plaintiff did
not come in possession of the land after partition, unless the defendants are able
to prove/establish their adverse possession, the plaintiff's suit cannot be said to
be barred by limitation.
Relevant paragraphs of the decision of Hon'ble Supreme Court in the
case of Indira (supra) are quoted as under:-
"4. The aforesaid reasoning of the learned Judge,
with respect, cannot be sustained as it proceeds on the
assumption as if old Article 142 of the earlier Limitation
Act was in force wherein the plaintiff who based his case
on title had to prove not only title but also possession
within 12 years of the date of the suit. The said provision
of law has undergone a metamorphic sea change as we
find under the Limitation Act, 1963 Article 65 which reads
as under:
Description of suit Period of Time from which period begins to
limitation run
65. For possession of immovable Twelve years When the possession of the
property or any interest defendant becomes adverse to the
therein based on title. plaintiff.
5. It is, therefore, obvious that when the suit is based
on title for possession, once the title is established on the basis
of relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the
plaintiff cannot be non-suited. Unfortunately, this aspect of the
matter was missed by the learned Judge and, therefore, the
entire reasoning for disposing of the second appeal has got
vitiated. Only on that short ground and without expressing any
opinion on the merits of the question of law framed by the
learned Judge for disposing of the second appeal, this appeal is
allowed. The impugned decision rendered is set aside and the
second appeal is restored to the file of the High Court with a
request to proceed further with the hearing of the appeal with
r e s pe c t to the substantial question aforementioned in
accordance with law No Costs."
10. So far as the argument in respect of exclusive ownership of the
defendants over the land Survey Nos.137/2 & 140/2, is concerned, there is no
document of title available on record to show exclusive ownership of
defendants over these two survey numbers, which were made part of partition
proceedings, started and completed before the Tahsildar.
11. Taking into consideration the aforesaid aspects of the matter as well
as the material available on record, learned Courts below have decreed the suit
for possession and dismissed the counter claim for declaration and permanent
injunction.
12. Upon due consideration of the material available on record, this
Court does not find any illegality in the judgment and decree passed by Courts
below.
13. Resultantly, for want of any substantial question of law, this second
appeal fails and is hereby dismissed.
14 . Misc. application(s), pending if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
