Madhya Pradesh High Court
Leelabai vs Balchandra on 5 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 5 th OF FEBRUARY, 2025
SECOND APPEAL No. 358 of 2023
LEELABAI AND OTHERS
Versus
BALCHANDRA AND OTHERS
Appearance:
Shri Ayush Jain - Advocate for the appellant.
Shri Gourav Shrivastava, learned counsel for the respondent No.5.
Shri Bhagyashree Gupta - P.L. for respondent/State.
ORDER
1. Learned counsel for the appellants is heard on the question of admission.
2 . This appeal under Section 100 of the CPC has been preferred by
defendants No.1 and 2 / appellants being aggrieved by the judgment and decree
passed by the Courts below whereby the claim of plaintiffs for declaration of title
and partition with respect to the suit lands has been decreed.
3. As per plaintiffs they have different shares in the suit lands as described
in the plaint. The suit lands are ancestral lands of the parties. The total share of
plaintiffs is 2.710 hectares and defendants No.1 and 2 also have share therein.
However defendant No.1 claiming share in excess of her share has illegally got an
order dated 13/6/2024 passed by the Tehsildar which is affecting their rights due
to which they have filed the suit.
4. The defence of defendant No.1 was that the suit is barred by time. After
death of ancestor Ramlal mutation had been effected in the revenue records and
defendant No.1 has accordingly got herself mutated. Plaintiffs No.2, 4, 5 and 6
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were given sufficient dowry at the time of their marriage in lieu of their shares in
the suit lands hence now they do not have any share therein.
5 . The Courts below have decreed plaintiffs claim holding that they have
share in the suit lands as contended by them. The claim is not barred by time and
that the order dated 13/6/2014 passed by the Tehsildar is illegal and not binding
upon them.
6. Learned counsel for defendants No.1 and 2 has submitted that the Courts
below have grossly erred in decreeing the claim of plaintiffs. The order dated
13/6/2014 passed by the Tehsildar has not been challenged by plaintiffs under the
provisions of M.P. Land Revenue Code, 1959 hence had attained finality and
could not have been challenged in the present suit. The revenue Courts are having
exclusive jurisdiction in respect of partition. The question of title was not raised by
plaintiffs in those proceedings. It is further submitted that plaintiffs No.2, 4, 5 and
6 who are daughters of Ramlal had been given sufficient dowry in the form of their
shares in the suit lands hence now it is not open for them to claim any title in the
suit lands but have illegally been given the same.
7. I have considered the submissions of the learned counsel for defendants
No.1 and 2 and have perused the record.
8. The Courts below have in detail taken into consideration the proceedings
before the Tehsildar leading to passing of order dated 13/6/2024 (Exhibit P/16).
Though it was recorded in the order that the opposite parties have refused to take
the notice but no notice was issued to plaintiffs No.3 to 6 who are the daughters /
sisters hence there was no question of refusal of notice. Plaintiffs No.3 to 6 were
not even impleaded as parties to the proceedings. The order dated 13/6/2014 was
hence passed in violation of the principles of natural justice. Even in the Kist
Bandi Khatoni Exhibits P/13 to P/15 the names of plaintiffs No.3 to 6 were not
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recorded. There is no participation of the daughters in the proceedings. If they
have share in the suit lands they ought to have been heard. The order is hence
illegal and not binding upon plaintiffs.
9. The proceedings for partition are carried out by the revenue authorities in
case there is no dispute with respect to title. However this does not dispense with
the requirement of hearing all interested parties. Plaintiffs No.3 to 6 were not
noticed in the proceedings hence claim by them on the basis of title is certainly
maintainable before the Civil Court. If after passing of an order by the revenue
Court for partition a dispute as regards title arises the same can very well be raised
before the Civil Court and merely for the reason that the order passed by the
revenue Court has not been challenged, it cannot be said that the civil suit would
not be maintainable. The Civil Court has the exclusive jurisdiction of deciding title
between the parties which jurisdiction cannot be taken away merely for the reason
that an order of partition has been passed by the revenue Court.
10. Though it was contended by defendants No.1 and 2 that daughters of
Ramlal were given sufficient dowry at the time of their marriage in lieu of their
shares in the suit lands but no evidence has been brought on record by the in
support or substantiation of the said fact. Mere pleading and oral statement in that
regard would be wholly insufficient. No witness has been examined by defendants
to demonstrate that at the time of marriage plaintiffs No.3 to 6 were given
sufficient property and that to in lieu of their shares in the suit lands. In any case
the property which is given to the daughters at the time of their marriage is their
Stridhan and / or marriage gift and cannot be presumed to be by way of their share
in the joint family property unless and until that fact is conclusively proved. The
same has however not been done in the present matter.
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11. In view of the aforesaid discussion, I do not find any illegality or
perversity in the judgment and decree passed by the Courts below. The findings
recorded by them are based upon evidence available on record and cannot be
interfered with. No substantial question of law arises for determination in this
appeal. Consequently affirming the judgment and decree passed by the Courts
below, the appeal stands dismissed in limine .
(PRANAY VERMA)
JUDGE
SS/-
