Madhya Pradesh High Court
Rajaram vs Nandkishore on 1 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:10220
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 1 st OF APRIL, 2025
SECOND APPEAL No. 3206 of 2024
RAJARAM
Versus
NANDKISHORE AND OTHERS
Appearance:
Shri Amit Raj, learned counsel for the appellant.
Shri Somesh Gobhuj, learned counsel for respondent No.1.
Ms. Mradula Sen, learned Panel Lawyer for respondents/State.
ORDER
1. Learned counsel for the appellant is heard on the question of admission.
2. This appeal under Section 100 of the CPC has been preferred by
defendant No.1 being aggrieved by the judgment and decree passed by the Courts
below whereby the claim of plaintiff has been partly decreed and his counter claim
has been dismissed.
3. As per the plaintiff, Nanuram, his father and of defendants No.1 and 3
was the owner of the suit lands. Upon his death in the year 1980 the same
devolved upon him, defendant No.1 and their mother Smt. Geetabai, who expired
on 08.04.2018. After her death plaintiff and defendant No.1 are joint owners of the
suit lands. Defendant No.1 has however got himself illegally mutated over the suit
lands in the revenue records. On such contentions the plaintiff instituted an action
for declaration of his half share in the suit lands bearing survey No.587, 588, 589,
590 and 591.
4. The defendant No.1 contested the plaintiff's claim by filing his written
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statement to the same. He also laid a counter claim stating that Nanuram had
certain lands in Gram Kadodiya also. It was in the name of plaintiff. On
26.01.2003 a partition had been effected between him, plaintiff and their mother in
Namantaran Panji in which 4.790 hectare of land was allotted to him and his
mother and survey No.591 area 0.180 hectare was given to plaintiff. Plaintiff is
also having survey No.251, 355, 369, 425 and 1260 belonging to the joint family
and survey No.366, 367, 370, 372 and 373 was got recorded in name of plaintiff
in lieu of which defendant No.1 had given land to Nahar Singh from whom the
aforesaid lands had been taken. Plaintiff does not have any share remaining in suit
lands bearing survey No.366, 367, 369, 370, 372 and 373. Relief was hence
claimed by him for declaration of his title to these suit lands. The counter claim
was contested by the plaintiff by filing his written statement to the same.
5. The Courts below have partly decreed the plaintiff's claim holding that
he, defendant No.1 and 3 are having 1/3rd share each in the suit lands bearing
Survey No.587, 588, 589, 590 and 591. However the counter claim of defendant
No.1 has been dismissed in respect of the remaining suit lands.
6. Learned counsel for defendant No.1 has submitted that survey No.366,
367, 369, 370, 372 and 373 were acquired from out of the income of the joint
Hindu family property in name of plaintiff in which defendant No.1 also has a
share. The entire suit lands are joint family lands of the parties. They were
acquired from out of funds of joint family. A partition had been effected in the
Namantaran Panji which has duly been proved by defendant No.1 but which has
not been acted upon by the Courts below. These suit lands were got recorded in
name of plaintiff only because of an arrangement having taken place in the family
in respect of other lands. It is hence submitted that the judgment and decree passed
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by the Courts below be set aside. Reliance has been placed by the learned counsel
for defendant No.1 on the decisions of the Apex Court in Appasaheb Peerappa
Changgade Vs. Devendra Perrappa Chandgade and others AIR 2007 SC 218,
Vinod Kumar Dhall Vs. Dharampal Dhall (Dead) Thr. Lr. (2018) 16 SCC 645,
Bhagwat Sharan (Dead) Thr. Lrs. Vs. Purushottam and others (2020) 6 SCC 387,
Reddy Radhakrishna Vs. Reddy Lakshmi and others AIR Online 2013 AP 135,
Ramkrishna Maniram Lende Vs. Vithalrao alias Baboo 1978 MPLJ 490 and
Lakhanlal Vs. Sitaram and another (2014) 1 MPLJ 129 .
7. I have considered the submissions of learned counsel for defendant
No.1 and have perused the record.
8. Survey No.587, 588, 589, 590 and 591 total area 4.970 hectare were
earlier held by Nanuram upon whose death the same devolved upon his widow,
sons and daughter. Upon death of his widow the plaintiff and defendants 1 and 3
are having 1/3rd share each therein. Though a partition was set up by defendant
No.1 said to have been effected in a Namantaran Panji but the same has not been
proved in accordance with law. In any case partition in a Namantaran Panji cannot
be effected. For the same a duly instituted separate proceedings are required to be
taken which has not been done in the present matter. Plaintiff categorically stated
that he had not signed on the Namantaran Panji proceedings which fact has not
been proved by defendant No.1. Thus the Courts below have not erred in any
manner in holding shares of the parties to these lands as aforesaid.
9. Though it was contended by defendant No.1 that in the other suit lands
also he has half share the same having been acquired pursuant to an arrangement
having been effected in the family and as a result of existence of joint family
having joint family property but it is seen that all the lands in dispute were earlier
held by Nanuram. There is no pleading of any of the parties nor is there any
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documentary evidence available on record to show that the lands which were held
by him were joint family ancestral lands i.e. they were held at any point of time by
his father or grandfather which have devolved upon him as joint family ancestral
lands. In absence of any document to show any of the suit lands being recorded in
the name of ancestor Nanuram it has to be necessarily held that they were his self
acquired lands and upon his death would devolve upon his heirs by succession.
The existence of a joint family having joint family property has neither been
pleaded nor proved.
10. The defendant No.1 has not produced any document to show that any
of the suit lands are ancestral lands of the parties. They are instead individual lands
of Nanuram and have devolved upon his heirs after his death. The presumption as
regards existence of a joint hindu family could have been raised as contended by
learned counsel for defendant No.1 if it had been shown that the family was
possessed of ancestral joint family property having nucleus deriving sufficient
income from which the suit lands could have been purchased. The very existence
of ancestral joint family lands of the parties has not been demonstrated. In this
view of the matter the judgments relied upon by the learned counsel for defendant
No.1 are not applicable to the facts of the present case and no presumption as
contended of the suit lands being joint family lands can be drawn. The documents
available on record show only plaintiff to be recorded over the suit lands as
regards which counter claim has been laid by defendant No.1. The pleading and
the evidence on the contrary is to the effect that these lands were got recorded in
name of plaintiff in lieu of some other land having been given to the person in
whose name they were earlier recorded. The question of purchase from income of
joint family property is even otherwise not attracted to the facts of the case. The
finding of the Courts below that defendant No.1 has failed to prove that these suit
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lands are ancestral lands in which he is having half share hence cannot be faulted
with.
11. Thus, in view of the aforesaid discussion, in my opinion, the Courts
below have not committed any error in rejecting the counter claim of defendant
No.1 and in partly decreeing the plaintiff's claim. They have recorded findings
based on the evidence available on record and it cannot be said that there is any
illegality or perversity in the same. No substantial question of law arises for
determination in this appeal hence the judgment and decree passed by the Courts
below are affirmed and the appeal is consequently dismissed in limine.
(PRANAY VERMA)
JUDGE
ns
