Madhya Pradesh High Court
Kailash vs Smt. Seema on 5 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 5 th OF FEBRUARY, 2025
SECOND APPEAL No. 1389 of 2024
KAILASH
Versus
SMT. SEEMA AND OTHERS
Appearance:
Shri Sudhanshu Vyas, learned counsel for the appellant.
None for the respondent.
ORDER
The appellant / defendant No.1 has filed this appeal under Section 100
of the Code of Civil Procedure, 1973 being aggrieved by the judgment dated
20.05.2024 passed by the Principal District Judge, Dewas in RCA/26/2022,
whereby the judgment and decree 24.02.2022 passed by the Civil Judge,
Senior Division, Tonkkhurd, Dewas dismissing the suit of respondents No.1
& 2 / plaintiffs has been set aside and the suit was decreed.
02. Facts of the case in short are as under:-
2.1. Late Bhagirath was the owner of the land bearing Survey
Nos.1453, 1471, 1473, 1487, 1859, 2682, 2831 total area 2.80 hectare
situated in Village - Chidawad, Tehsil - Tonkkhurd, District - Dewas.
Bhagirath has three sons the three daughter. Plaintiffs No.2, 3 and defendant
No.1 are the three son and defendants No.3, 4 & 5 are the daughters. Plaintiff
No.1 is the wife of plaintiff No.2. According to the plaintiffs, all the six
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brothers and sisters are having 1/6 - 1/6 share in the land left by Bhagirath.
Even the defendant has not disputed this fact.
2.2. Defendants No.3, 4 & 5, being the daughters of Bhagirath, sold
their shares to plaintiff No.1 vide registered sale deed dated 03.11.2014 and
thereafter, the name of plaintiff No.1 was mutated in the revenue record.
Defendant No.1 challenged the said order by way of appeal before the Sub
Divisional Officer.
2.3. According to the plaintiffs, defendant No.1 illegally cut the
crops valued Rs.2,70,000/- which gave cause of action to the plaintiffs to file
the suit for declaration, permanent injunction and damage. In the said suit,
defendant No.1 filed a counter claim challenging the sale deed dated
03.11.2014 as void. According to defendant No.1 after the death of
Bhagirath, the land was equally divided between three brothers and mother
and after the death of mother, the land of her share i.e. 0.70 आरे was again
divided into six parts and all the brother sisters get 12-12 आरे land. The
sisters had no possession on the spot. They never claimed any share in the
land, otherwise he would have given share to them.
2.4. It is further submitted by defendant No.1 that without
possession, the sisters had no right to sale the land to plaintiff No.1, hence,
the said suit is void. On the basis of the suit, counter suit, written statement,
nine issues were framed by the Civil Judge. The parties examined their
witnesses. After appreciating the evidence came on record, the learned Civil
Judge vide judgment dated and decree dated 24.02.2022 has dismissed the
suit as well as counter suit both.
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2.5. Being aggrieved by the dismissal of the suit, only the plaintiffs
preferred a first appeal and defendant No.1 did not prefer any appeal against
the dismissal of counter claim. Therefore, relief claimed by defendant No.1
with respect to challenge to the sale deed dated 03.11.2014 has come to an
end. The learned District Judge vide judgment dated 20.05.2024 decreed the
suit on the ground that all the brothers and sisters have equal share in the
land to extent 1/6 - 1/6 and declared that plaintiff No.1 is the owner of land
bearing Survey No.1453/2, area 0.37 hectare, 1471/2, area 0.95 hectare,
1859/2 area 0.04 hectare and 2831 area 0.03 hectare (total area 1.40 hectare)
and is occupier. Plaintiff No.2 is the owner of Survey Nos.1487, 1458, 1859,
2682, area 0.46 hectare and plaintiff No.3 is the owner of land bearing
Survey Nos.1453, 1487 total area 0.46 hectare.
2.6. Being aggrieved by the aforesaid judgment passed by the
appellate Court, the defendant No.1 preferred this second appeal before this
Court.
03. Learned counsel for the appellant submits that the defendant /
appellant is not disputing the shares of the daughters in the joint family
property, but without partition of the land by metes and bounds, they ought
not to have executed the sale deed. They could not have hand over the
possession as the defendant / appellant has been in possession. In support of
the aforesaid contention, learned counsel has placed reliance upon a
judgment passed by this Court in the case of Ram Das v/s Sita Bai & Others
reported in 2009 (4) M.P.L.J. 597 .
3.1. Learned counsel for the appellant has proposed question of law
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whether the co-owner of the joint family property can sale his share without
getting the parties of the joint family property.
Heard.
04. By virtue of Section 6 of the Hindu Succession Act, it is not in
dispute that defendants No.3, 4 & 5 being the daughter have equal shares
with plaintiffs No.2, 3 and defendant No.1 in the land owned by Bhagirath.
Defendants No.3, 4 & 5 executed the sale deed way back in the year 2014 in
favour of Seema Bai and her name was mutated in the revenue record on
30.12.2014, against which defendant No.1 preferred an appeal and obtained
the stay order and by virtue of stay order, he cut the crops of 150 quinttal
wheat for which the Collector vide order dated 22.03.2016 has directed him
to pay the compensation to the plaintiffs. Defendant No.1 filed a suit for
recovery of the cost and declaration which was dismissed on 13.05.2016. As
held by both the Courts that defendant did not dispute the share of
defendants No.3, 4 & 5 which they sold to plaintiff No.1 in Rs.31,15,000/-
and put her into the possession. Each and every joint owner is treated to be
into possession of the land, therefore, by virtue of possession, defendants
No.3, 4 & 5 sold the land to the plaintiff.
05. Defendant No.1 challenged the sale deed by way of counter suit,
but did not prefer any first appeal before the District court , hence, now in
second appeal he cannot challenge the sale deed. In absence of challenging
the sale deed and possession now no relief can be granted to him in this
second appeal. Therefore, learned District Judge has rightly declared
plaintiffs No.1 to 3 as the owner and occupier of the land which is only
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decree of declaration of title. I do not find any question of law in this appeal.
06. In view of the above, Second Appeal stands dismissed.
(VIVEK RUSIA)
JUDGE
Ravi
