Madhya Pradesh High Court
Sheetal Prasad And Anr vs Sushil Kumar on 19 February, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:8099
1 FA-446-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 19th OF FEBRUARY, 2025
FIRST APPEAL No. 446 of 2004
SHEETAL PRASAD AND ANR
Versus
SUSHIL KUMAR
Appearance:
Shri Sanjay Kumar Verma - Advocate for the appellant.
Shri Nand Kishore Tiwari - Panel Lawyer for the respondent No.6.
ORDER
This case was heard and reserved for orders on admission on
02.12.2024.
2. This first appeal has been filed by the appellant/plaintiff against
the judgment and decree passed in Civil Suit No.11A/2002 (Sheetla
Prasad and others Vs. Sushil Kumar & others) whereby a suit was filed
under Sections 34 and 38 of Specific Relief Act 1963 for the suit
property as shown in Annexre-A attached with in the plaint having total
area 1.40. hectare, regarding the sale made by Seeta Kumari in favour of
defendants/respondent No.5 & 6 by registered sale deed dated
13.01.1998 for the two houses and a well to be declared as null and void
and permanent injunction not to interfere in the possession of the
plaintiff over the suit property.
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3. It was an admitted fact in the trial Court that late Anantram
(grand father of Sheetla Prasad) had three sons, namely, Surjan Ram,
Babole Ram and Sankhram. Seeta Kumari was widow of Surjan Ram
who expired issueless and the plaintiffs and defendants No.1 to 4 are
descendants of Baboleram and Sankhram has also expired.
4. In brief, the case of the plaintiff before the trial court was that
after the death of Santram, Vaidnathram was murdered by defendants
No. 1 to 3. They were sentenced for life imprisonment by the Sessions
Court. While defendants No. 1 to 3 were undergoing the sentence, the
plaintiff came into possession of some part of the suit land of defendants
No.1 to 3. On the suit property, the plaintiff had 1/6th share. It was also
argued that the family was joint Hindu family, and Anantram was
'Karta' of the family. Seeta Kumari had 1/3rd share in the suit property,
and Baboleram and Sankharam have total 2/3rd share in the suit
property.
5. Shankhram about 60 years ago leaving the ancestral property,
went to Sarguja District along with his family members and thereafter
never came back and Seeta Kumar being widow went to her parent's
home at Kushmahra, Tehsil Singrouli, and on the entire suit land
Boboleram and his sons were doing the agricultural work. There was no
partition between Seeta Kumari, Baboleram and Sankhram but in the
Annexure -A, the suit property totalling twelve in numbers was recorded
in the name of Seeta Kumari in revenue records but she was never in
NEUTRAL CITATION NO. 2025:MPHC-JBP:8099
3 FA-446-2004
possession. On ancestral property, Seeta Kumari had one half share, and
plaintiff and defendants No.1 to 4 had half share. Seeta Kumari never
had a right to sell the entire suit land of 1.40 H as per Hindu Law
without the consent of coparceners. Therefore, property sold to
defendants No. 5 to 6 by registered sale deed is void.
6. Defendants No.5 & 6/Respondents had pleaded in their written
statement that they have purchased the suit property by registered sale
deed from Seeta Kumari and obtained possession, the disputed land was
under the possession and title of Seeta Kumari, partition between Seeta
Kumari, Baboleram and shankhram had taken place in year 1973 and on
18.07.1973 the Tehsildar passed mutation order and on the basis of
partition, land was mutated in the name of Seeta Kumari who obtained
possession also. Seeta Kumari had sold the suit property to defendants
No.5 &6 which was not more than 1/3rd share. Purchasers are in
possession of the suit property, Babuleram and Shankhram were never in
the possession and Seeta Kumari never relinquished her right in the suit
property, which is not a coparcenary property, as a lady cannot be a
coparcener of that point at time as mentioned in the Suit.
7. The learned trial court frame the following issues and recorded
the finding as bellow:
01. या अन तराम के पु बबोलेराम व शंखराम तथा ीमती
सीताकुमार पु वधु (वतमान म तीन मृत) के बीच पै क संप य का कोई
बटवारा हुआ था?
NEUTRAL CITATION NO. 2025:MPHC-JBP:8099
4 FA-446-2004
िन कष हॉं
02. या उ तीन के बीच बटवारा हुए बना शंखराम व सीता कुमार के
ारा पै क संप य म अपने हक का प र याग कर वह अ य रहने लगे?
िन कष नह ं
03. या पै क भूिमय म सीता कुमार का आधा ह सा व आधा ह सा
वाद गण व ितवाद -1 से 4 का था?
िन कष नह ं
04. या वाद अनुल न 'अ' म उ ले खत आराजी सन ् 1974 म हुए
बटवार म सीताकुमार को िमली थी?
िन कष हां
05. या उ ववा दत आराजी सीताकुमार के ारा बना कसी विधक
आव यकता के ितवाद -5 व 6 को व य कया गया?
िन कष नह ं, आव यकता नह ं।
06. या सीताकुमार को उ ववा दत आराजी व य का अिधकार था?
िन कष हां, अिधकार था।
07. या सीताकुमार के ारा ितवाद -5 व 6 को िन पा दत
पं जकृ त व य प दनां कत 13/1/98 वाद के व शू य व भावह न है ?
िन कष नह ं, शू य नह ं है ।
08. या ववा दत आराजी पर केवल वाद गण का व व व आिधप य
चला आ रहा है ?
िन कष नह ं, मा णत नह ं।
09. या वाद को दावा म मू यानुसार याय शु क च पा करना
होगा?
NEUTRAL CITATION NO. 2025:MPHC-JBP:8099
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िन कष नह ं
10. या वाद ारा ववा दत आराजी के साथ मकान व कुआ का
ववाद न होने के बावजूद अनुतोष हे तु मू यांकन कए जाने के कारण वाद का
दावा आदे श - 7 िनयम - 11 सीपीसी के अंतगत अ वीकृ त कए जाने यो य है ?
िन कष नह ं
11. या जबाव-दावा के कं डका-32 म व णत य य को प कार न
बनाए जाने से करण म आव यक प कार के असंयोजन का दोष व मान है ?
िन कष नह ं
12. या वाद के ारा पेश यह दावा िनराधार व ासदायक होने के
कारण ितवाद .- 5 व 6 वाद से को वशेष हजाना पाने के हकदार ह, य द हां
तो कतना
िन कष नह ं
13. सहायता एवं वाद यय?
िन कष िनणय क डका 23 अनुसार ारा स यय िनर त
8. In the trial Court, on behalf of plaintiffs Sheetal Prasad Shukla,
Sugan Sharan Shukla and Phoomati have been examined as PW/1 PW/2
and PW/3 and have exhibited document Ex.P/1- (Registry), Ex.P/2
(Khasra Pansala), Ex.P/3- (Kistbandhi Khatoni), Ex.P/4- (Varshik
Khatoni).
9 . On the other hand the defendants have examined Awadesh
Prasad Singh (DW/1) and Ramanand Shukla (DW/2) and they have
exhibited Ex.D/1, that is application before the Tehsildar filed under
Section 165/110 MPLRC, and Ex.D/2 which is proceeding under
NEUTRAL CITATION NO. 2025:MPHC-JBP:8099
6 FA-446-2004
Section 178 of MPLRC, Ex.D/3 is Kistbandi Khatoni, Ex.D/4
isregistered sale deed which has been exhibited by plaintiffs also Ex.D/5
is land numbering list and Ex.D/6 is Khasra Panchshala.
10. On perusal of the case and ongoing through the evidence of
witness of both the parties and appreciating cross-examination, this court
is of considered view that learned trial Court has considered all factual
and legal situation and there is no need to repeat the same evidence as
for valid reason given by the Trial Court suit of the plaintiff has been
dismissed. The plaintiffs have no right to the suit property, infact, they
are claiming right on the property which originally belonged to husband
of Seeta Kumari and after his death belonged to Seeta Kumari. It is not a
case where Seeta Kumari has voluntarily relinquished her right from the
suit property. On perusal of the Para 3 of statement of PW/3-Phoolmati,
it is seen that she has admitted in cross -examination in Para 3 that
sister-in-law used to live at Pachor and Kushmar, her 'Sasural' is in
Pachor and at Kushumar is her parental house. Therefore, it is wrong to
say that she had abandoned her property and plaintiff came into the
possession. When plaintiffs themselves have admitted that Seeta Kumari
has 1/3rd share in the suit property, it was incumbent upon them to
established by reliable and oral evidence that she has, indeed voluntarily
abandoned and relinquished her right in property and it is not proved in
the facts and circumstances of the case.
11. On the other hand, on the perusal of the Kistbandhi Khatouni
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(Ex.P/3) it is seen that name of Seeta Kumari is there on 1/6th share and
there is no ground to disbelieve Kistbandhi Khatouni (Ex.P/3) or Varshik
Jama Bandi Khatouni (Ex.P/4) of year 1958-59 where, name of the Seeta
Kumari is recorded separately. Plaintiff himself in Para 5 of plaint has
mentioned that Seeta Kumari had 1/3rd in suit property, although they
are saying that she had left her share, which they were unable to prove in
Court.
12. There is no admission on behalf the defendant or his
witnesses, on the basis of which suit could have been decreed.
Therefore, in the fact and circumstance, it is wrong to say that Seeta
Kumari had no right to sale the suit property and she had only limited
rights for maintenance.
13. Accordingly, judgement and decree dated 19.04.2004 passed
by the learned First Additional District, Judge to the Court of First
Addl. District Judge, Sidhi, passed in Civil Suit No.11A/2002 is
confirmed and instant appeal is dismissed.
(AVANINDRA KUMAR SINGH)
JUDGE
NRJ
