Madhya Pradesh High Court
Deceased Babu Through Lrs. Mansharam vs Gaurishankar on 6 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:400
1 SA-449-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 6 th OF JANUARY, 2025
SECOND APPEAL No. 449 of 2022
DECEASED BABU THROUGH LRS. MANSHARAM AND OTHERS
Versus
GAURISHANKAR AND OTHERS
Appearance:
Shri Tehjeeb Khan - Advocate for the appellants.
ORDER
1. Heard on the question of admission.
2. This appeal under Section 100 of the CPC has been preferred by the
appellants, who are the legal representatives of deceased original plaintiff
Babu, being aggrieved by the judgment and decree passed by the Courts
below whereby the claim for declaration of title to the suit land bearing
Survey No.195 area 0.076 hectare and for permanent injunction restraining
the defendants from interfering with his possession over the suit land has
been dismissed.
3. As per the plaintiff his father Parasram and Dama S/o. Ganesh were
recorded over the suit land in the revenue records continuously upto the year
1995. Thereafter a partition was effected between them and they separated
but the suit land continued to be recorded in the name of plaintiff and he
remained in possession thereof. He is the owner of the same but the
defendants are attempting to forcibly dispossess him therefrom and have
illegally got themselves mutated in the revenue record. It was further
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2 SA-449-2022
submitted that since the plaintiff has been in possession of the suit land for a
period of 17 years he has acquired title thereto by virtue of adverse
possession.
4. The defence of defendants No.1 and 2 was that prior to 1995 a
partition had been effected in the family of plaintiff which was given effect
to in the revenue records. Tarachand was recorded therein as a co-owner. On
the basis of partition he sold the suit land in favour of Mohanlal who in turn
sold the same to defendants No.1 and 2 who have acquired valid title
thereupon.
5. The Courts below have dismissed plaintiff's claim by holding that
he has failed to prove his title to the suit land and has also failed to prove that
the defendants are interfering with his possession over the same.
6. From a perusal of the documents which have been brought on
record by the parties, it is observed that up to the year 1974-75, plaintiff's
father Parasram and Dama were recorded over the suit land in the revenue
records. Thereafter plaintiff his son and daughters and defendant No.4 were
recorded. It is also observed that besides the suit land, Survey No.44 area
2.035 hectare and Survey No.45 area 1.151 hectare were also recorded in the
name of Parasram and Dama which have subsequently been recorded in the
name of plaintiff, his sons and daughters and Tarachand.
7. As per the plaintiff, in the year 1995 the suit land was partitioned.
However, no details of the partition have been given by him. It has not even
been pleaded that in the said partition the suit land had fallen to the share of
plaintiff and the other lands had fallen to the share of defendants No.4 and 5.
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3 SA-449-2022
It has not been explained as to how when the suit land had been partitioned
the same exclusively fell to the share of plaintiff. It is not even the plaintiff's
case that in the partition the suit land had fallen to him and the other lands
had fallen to the share of defendants No.4 and 5 or their father. By order
dated 14/4/1995 the Tehsildar has directed for recording of name of
Tarachand over the suit land in the revenue records on the basis of a partition
having been effected in the family.
8. Upon a meticulous evaluation of the documents available on record,
the Courts below have recorded a finding to the effect that in a partition
effected in the family earlier the suit land hads fallen to the share of Dama
and thereafter defendant No.4 Tarachand who had subsequently sold the
same. It has also been held that part of Survey Nos.44 and 45 have been
allotted to the share of plaintiff. It is hence not a case where Tarachand has
sold land in excess of that owned by him. Pertinently, the sale deed was
executed by Tarachand on 30/7/1979 but the same was never challenged
either by plaintiff's father or the plaintiff at any time up to filing of the suit in
the year 2014. Moreover, no relief of cancellation of the sale deed executed
by Tarachand has been claimed.
9. The finding that the suit land had fallen to the share of Dama in the
partition which consequently devolved upon Tarachand and which has been
legally sold by him is essentially a finding of fact and has been arrived at by
the Courts below on the basis of evidence brought on record by both the
parties. Since the sale deed dated 30/7/1979 itself and the consequent sale
deeds have not been challenged by the plaintiff there was no requirement of
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4 SA-449-2022
any formal proof of them by the defendants. It was for the plaintiff to prove
his own case which he has failed to do on the basis of evidence led by him.
10. Thus in view of the aforesaid discussion, in my opinion, the Courts
below have not committed any error in dismissing the claim of plaintiff.
Their judgments are based upon correct appreciation of the evidence brought
on record by the parties. The findings recorded by them are findings of fact
and are not liable to be interfered with in a second appeal under Section 100
of the CPC. No substantial question of law is involved in this appeal which is
consequently dismissed in limine.
(PRANAY VERMA)
JUDGE
SS/-
