Madhya Pradesh High Court
Smt. Kiran Shashishekhar Nigam D/O ... vs Smt. Veena Devi Son Of Ashok Nigam (Dead) ... on 4 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:36199
1 SA-1041-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 4 th OF AUGUST, 2025
SECOND APPEAL No. 1041 of 2025
SMT. KIRAN SHASHISHEKHAR NIGAM D/O BASANT KUMAR
DEAD THROUGH LRS SMT. AKANSHA AND OTHERS
Versus
SMT. VEENA DEVI SON OF ASHOK NIGAM (DEAD) THROUGH LRS.
ASHOK KUMAR AND OTHERS
Appearance:
Shri Kapil Rohra, Advocate for appellants.
Ms. Renu Bagri, Advocate for LRs of respondent 1.
ORDER
This second appeal has been preferred by the appellants/defendants 2,
4, 6 & 7 challenging the judgment and decree dtd. 31.01.2025 passed by
Additional Judge to the Court of 1st District Judge, Khandwa in RCA
No.47/2022 reversing the judgment and decree dtd. 23.07.2022 passed by 6th
Civil Judge Senior Division, Khandwa in RCSA No.800001/2016 whereby
Trial Court dismissed the respondent 1/plaintiff Smt. Veena Devi (now dead,
through LRs)' suit for declaration of share, partition and separate possession,
which in civil appeal filed by LRs of the plaintiff, has been decreed holding
them to be entitled for 1/4 share in half share of Banwarilal as well as
partition and separate possession.
2. Learned counsel for the appellants submits that as the plaintiff
failed to prove ownership over the disputed property, therefore, Trial Court
rightly dismissed the suit, but First Appellate Court has on presumptions and
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wrong assumptions not acceptable in the eyes of law, held the disputed
property belonging to Kanhaiyalal and Banwarilal and committed an
illegality in holding the plaintiff to be entitled for 1/4 share in the alleged
half share of Banwarilal. He submits that Banwarilal had two wives namely
Champa Bai and Leela Bai, hence the suit for want of impleadment of legal
heirs of Champa Bai being bad ought to have been dismissed because the
plaintiff and defendants 8, 9 & 10 are claiming through second wife-Leela
Bai. He further submits that both the Courts below have committed an
illegality in holding that no partition took place in between Kanhaiyalal and
Banwarilal and only upon holding so, committed illegality in decreeing the
suit, even in absence of any document of ownership of the favour of
Kanhaiyalal and Banwarilal. He further submits that First Appellate Court
has also committed illegality in allowing two applications under Order 41
Rule 27 CPC and in taking into consideration the additional documents.
With these submissions, he prays for admission of the second appeal.
3. Learned counsel for the LRs of respondent 1/plaintiff supports the
impugned judgment and decree and prays for dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. In the present case the plaintiff has come with the case that the
suit property belonged to Kanhaiyalal and Banwarilal. Defendatns 1-7 are
claiming through Kanhaiyalal whereas the plaintiff and defendants 8, 9 & 10
are claiming through Banwarilal's second wife Leela Bai. The defendants 1-7
have come with the case that there was an oral partition in between
Kanhaiyalal and Banwarilal in which the disputed plot No.186 area 5525
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sq.ft. fell in the share of Kanhaiyalal whereas plot No.191 area 384 sq.ft. fell
in the share of Banwarilal as per document (Ex.D/3) because he was given
cash and gold and since thereafter both the parties are in possession of the
property fell in their share. The documents filed along with the application
under Order 41 Rule 27 CPC show that the suit property was recorded in the
name of Kanhaiyalal and Banwarilal and with this background First
Appellate Court has allowed the applications under Order 41 Rule 27 CPC
and after marking exhibits on the documents, had taken the same into
consideration because there was no dispute that the suit property belonged
to Kanhaiyalal and Banwarilal.
6. In view of the aforesaid factual position there remains dispute
only in respect of the oral partition alleged by the defendants 1-7. Both the
Courts below have upon due consideration of the oral and documentary
evidence found that no partition took place in between Kanhaiyalal and
Banwarilal. Apparently, finding recorded by Trial Court in respect of oral
partition, was not challenged by the defendants 1-7 in the civil appeal filed
by the plaintiff. So there is concurrent finding of fact in respect to the fact
that no oral partition took place in between Kanhaiyalal and Banwarilal
through whom the defendants and plaintiff as well as the defendants 8, 9 &
10 are claiming right in the suit property.
7. So far as the argument of learned counsel regarding non-
impleadment of LRs of first wife Champabai, is concerned, the same does
not make any adverse effect on the instant case, because the defendants 1-7
are claiming their rights through Kanhaiyalal and not through Banwarilal.
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8. In view of the aforesaid discussion and in my view of the fact that
suit property belonged to Kanhaiyalal and Banwarilal, in my considered
opinion in absence of any oral partition, First Appellate Court does not
appear to have committed any illegality in holding the plaintiff to be share
holder of 1/4 share in half share of Banwarilal as well as partition and
separate possession.
9. Resultanlty, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
10. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
KPS
