Madhya Pradesh High Court
Hira vs Kashiram on 21 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:39669
1 SA-3164-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21st OF AUGUST, 2025
SECOND APPEAL No. 3164 of 2019
HIRA AND OTHERS
Versus
KASHIRAM AND OTHERS
Appearance:
Shri Ajay Kumar Jain - Advocate for the appellants.
Shri Sudhir Kumar Sharma - Advocate for the respondents 1 and 2.
ORDER
This second appeal has been preferred by the appellants/defendants 1-
2 challenging the judgment and decree dated 24/10/2019 passed by Second
Additional District Judge, Bijawar, District Chhatarpur in Regular Civil
Appeal No.36A/2018 reversing the judgment and decree dated 31/10/2017
passed by Second Civil Judge Class-II, Badamalahra, District Chhatarpur in
Civil Suit No.10A/2016, whereby Trial Court after holding the plaintiffs to
be entitled for 1/2 share in the land survey Nos.585 and 587, dismissed the
suit holding it to be barred by limitation and in civil appeal filed by the
plaintiffs, First Appellate Court has decreed the suit reversing the finding of
Trial Court, on the question of limitation.
2. Learned counsel for the appellants/defendants 1-2 submits that the
suit land has been recorded in the name of defendants and their father since
after the year 1977-78 that too in the knowledge of plaintiffs and their father,
but they did not take any action timely for getting corrected the revenue
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record and also did not file any suit within a period of three years as provided
under Article 58 of the Limitation Act, therefore, Trial Court rightly
dismissed the suit as barred by limitation, although held the plaintiffs to be
entitled for 1/2 share in the suit property and without taking into
consideration this aspect of the matter, First Appellate Court has committed
an illegality in reversing the finding on the question of limitation as well as
the judgment and decree passed by Trial Court. He submits that the plaintiffs
are out of possession and have also not sought any relief of possession or
partition, without which the suit was not maintainable. With these
submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 1-2/plaintiffs
supports the impugned judgment and decree passed by First Appellate Court
and prays for dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Originally the plaintiffs filed the suit in respect of land survey
Nos.647, 646, 693, 693/1, 693/2, 7/7, 585 and 587 and the defendants took
the plea that their ancestor, namely, Punta had only one son Manka, from
whom the defendants 1-2 were born and contended that Mulua was not born
from Punta. Upon due consideration of the oral and documentary evidence
available on record, both the Courts below have held that Punta was survived
by two sons, namely, Manka and Mulua. The defendants 1-2 are sons of
Manka and the plaintiffs are sons of Mulua's son Tantu (Tantua). Trial Court
on the basis of documentary evidence available on record, held the plaintiffs
to be entitled for 1/2 share in the land survey Nos.585 and 587, however,
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dismissed the suit in respect of other survey numbers mentioned in the plaint
as well as holding the suit to be barred by limitation. Admittedly, against the
finding recorded by Trial Court in respect of ownership of the plaintiffs over
the land survey Nos.585 and 587, no cross-objection was filed by the
defendants 1-2 in the civil appeal filed by the plaintiffs against dismissal of
their suit as barred by limitation. Meaning thereby, there are concurrent
findings regarding joint ownership of the plaintiffs and defendants over the
land survey Nos.585 and 587 and even after arguing at length, learned
counsel for the appellants has not been able to point out any illegality in the
said findings recorded by Courts below.
6. So far as the argument relating to maintainability of suit for want of
relief of partition or separate possession is concerned, the land in question is
agricultural land and in my considered opinion, the plaintiffs are not required
to seek the relief of partition or separate possession, because ultimately the
partition of joint land is to be effected by Tahsildar on filing an application
under Section 178 of the M.P. Land Revenue Code, 1959 (in short "the
Code") by any of the parties to the suit and separate possession shall be
given only thereafter.
7. So far as the question of limitation is concerned, apparently the
defendants 1-2 have not taken any plea of adverse possession, so in the
considered opinion of this Court where both the Courts below have found the
plaintiffs to be owner of land having equal share, the suit cannot be said to
be barred by limitation and First Appellate Court has rightly reversed the
finding of Trial Court and decreed the suit.
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8. It is clear from last para 18(B) of the impugned judgment that First
Appellate Court has held the plaintiffs to be in possession and has also issued
permanent injunction, but in the light of prayer made in the plaint, the
plaintiffs and defendants both shall be deemed to be in joint possession and
the plaintiffs shall be at liberty to file an application for partition of their
share before the Tahsildar under Section 178 of the Code.
9. In view of the aforesaid discussion and upon due consideration of
the entire material available on record, this Court does not find any illegality
in the judgment and decree passed by First Appellate Court.
10. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed .
11. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
