Madhya Pradesh High Court
Kaliram vs Smt. Munni Bai on 7 April, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
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1 SA-1243-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 7 th OF APRIL, 2025
SECOND APPEAL No. 1243 of 2024
KALIRAM AND OTHERS
Versus
SMT. MUNNI BAI AND OTHERS
Appearance:
Shri Santosh Anand - Advocate for the appellants.
Shri Kamlesh Tamrakar - Panel Lawyer for the State of M.P.
JUDGMENT
The present Second Appeal under Section 100 of Civil Procedure
Code has been filed by the appellant, who has lost in both the Courts against
the judgment and decree dated 12.03.2024 passed by IInd Additional District
Judge, Gadarwara, district Narsinghpur in RCA No.47 of 2022, whereby
learned First Appellate Court by judgment and decree dated 12.3.2024
dismissed the appeal of the defendant and allowed the appeal of sthe
plaintiff.
2. Plaintiff - Munni bai, D/o Chhidamilal filed a suit against his
brother defendant no. 1-Kaliram and others for the suit property as
mentioned in Para-1 of the judgment of the trial court situated in Mauja
Jaikheda, Mouja Podar, tahsil Gadarwara, district Narsinghpur for
declaration of title and partition.
3. Learned trial court after hearing both the parties as per law partly
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allowed the suit.
4. On an appeal by Munnibai numbered as R.C.A. No.47 of 2022 and
appeal filed by Kaliram numbered as R.C.A No.52 of 2022, learned First
Appellate Court by judgment and decree dated 12.3.2024 dismissed the
appeal of the defendant and allowed the appeal of the plaintiff.
5. At the time of arguments, it was submitted that the mother of the
plaintiff was alive but she was not made as a party, therefore, the suit was
barred for mis-joinder of party. It is also submitted that the court wrongly
held that some lands were not self acquired inspite of filing the sale deeds
(Ex.D-1 to D-5). The appellant no. 1 during his life from the years 1989 to
1990 transferred some of the lands but these transfer proceedings were never
challenged. There was earlier partition in the family. Regarding sale deeds
(Ex.D-1 to D-5), it is seen that sale deed (Ex. D-1) is in the name of Kaliram.
Learned First Appellate Court has legally and correctly dealt this point in
Para-32 to Para-39 of the judgment and has correctly held that since earlier
partition in the family has not been proved, therefore, properties were
purchased in the name of defendant nos. 1 and 2 from the income of joint
family, therefore, in such situation, if some properties were sold by the
defendants, then it would be of no consequence to prove the factum of earlier
partition in the family because sale could be made for many purposes in the
joint family.
6. Considered the arguments and perused the records.
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7. It is seen that in the trial court, there was no issue framed by learned
trial court regarding mis-joinder or non-joinder of necessary party. It is
submitted that objection was made but that was dismissed but if this is the
case, then they should have moved to higher judicial forum for setting aside
the order. Even otherwise, if any necessary party is left out, then judgment
would not be binding and operative against him/her. It is also submitted that
the appellant - defendant had filed a counter claim which was rejected but on
perusal of the judgment of the trial court, it is seen that defendants have not
filed any counter-claim neither any issue is framed regarding the counter
claim.
8. All factual and legal position have been considered by learned First
Appellate Court. Therefore, there is nothing in this appeal by way of
substantial question of law on which this second appeal can be admitted.
9. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or
contrary to material on record. [See: Narayan Rajendran and Anr. v.
Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul
Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC
158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7
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SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4
SCC 264] The concurrent findings of fact recorded by the courts below are
based on meticulous appreciation of evidence on record which by no stretch
of imagination can be said either to be perverse or based on no evidence.
10. For the reasons discussed above, this appeal has no merit and is
accordingly dismissed.
(AVANINDRA KUMAR SINGH)
JUDGE
bks
