Madhya Pradesh High Court
Dukhharan Prasad vs Rameshwar Prasad S/O Shri Mathur Prasad ... on 15 July, 2025
Author: Vishal Dhagat
Bench: Dwarka Dhish Bansal, Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:31572
1 SA-313-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 15 th OF JULY, 2025
SECOND APPEAL No. 313 of 2004
DUKHHARAN PRASAD AND OTHERS
Versus
RAMESHWAR PRASAD S/O SHRI MATHUR PRASAD KAHAR (DIED)
THROUGH LRS MST BHAGWANIYA AND OTHERS
Appearance:
Shri G.S. Baghel with Shri Kamlesh Kumar Raidas, Advocates for appellants.
Shri Bhupendra Kumar Mishra, Advocate for respondent 2/defendant 2-Santosh
Kumar.
Shri Abhinav Tiwari, Panel Lawyer for respondent 4-State.
ORDER
This second appeal has been preferred by the appellants/plaintiffs
challenging the judgment and decree dtd.28.11.2003 passed by 1st Additional
District Judge, Rewa in Regular Civil Appeal No.30A/2002 affirming the
judgment and decree dtd.26.02.1993 passed by Civil Judge Class-II, Teonthar,
District Rewa in Civil Suit No.18A/1990 whereby Courts below have
concurrently dismissed the plaintiffs' suit for declaration of their 4/6 share in the
lands, total area 9.44 acres situated in Teonthar as well as for separate possession
after partition.
2. Learned counsel for the appellants/plaintiffs submits that in fact the suit
land belonged to ancestor Chatur, who was survived by son Rameshwar Prasad
(defendant 1), who had two wives. The plaintiffs were born from the wedlock of
second wife of Rameshwar Prasad and from first wife, Chakradhar Prasad was
born, whose son is Santosh Kumar (defendant 2) and wife-Bitolwa (defendant 3).
NEUTRAL CITATION NO. 2025:MPHC-JBP:31572
2 SA-313-2004
He submits that the suit property was ancestral property of Rameshwar Prasad and
Chatur, as such the plaintiffs being sons of Rameshwar Prasad, are having right by
birth in the suit property and Courts below have committed illegality in
dismissing the civil suit holding that Rameshwar Prasad became separate long
back even prior to the year 1960 and defendants 2-3 are owners/bhoomiswami and
in possession of the suit land because their names were mutated after death of
Chakradhar Prasad in whose favour Chatur had executed a registered gift deed
dtd.26.11.1948 (Ex.D/22). He submits that although the defendants 2-3 have
claimed their exclusive right on the aforesaid basis, but in fact all were residing
jointly and no partition of the land was done, therefore, the plaintiffs' suit ought to
have been decreed holding them to be entitled for 4/6 share in the suit property as
well as for separate possession after partition. With these submissions, he prays
for admission of the second appeal.
3. Learned counsel appearing for the respondent 2-Santsoh Kumar supports
the impugned judgment and decree passed by Courts below and prays for
dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Both the Courts below have upon due consideration of the oral and
documentary evidence available on record, concluded that the suit property
belonged to Chatur, who died in the year 1960 after executing registered gift deed
dtd. 26.11.1948 (Ex.D/22) in favour of his grand son-Chakradhar Prasad son of
Rameshwar Prasad. It is also held that immediately after death of Chatur in the
year 1960, name of Chakradhar Prasad was also mutated in the revenue record and
after his death the names of defendants 2-3 were recorded and Rameshwar Prasad
through whom the plaintiffs are claiming, did not challenge the aforesaid
registered gift deed as well as mutation of Chakradhar Prasad and defendants 2-3.
NEUTRAL CITATION NO. 2025:MPHC-JBP:31572
3 SA-313-2004
6. Courts below have also held that because of second marriage done by
Rameshwar Prasad, he became separate, therefore, he did not claim any right in
the suit property, which continuously remained in the name and possession of
Chakaradhar Prasad and his wife and son, the defendants 2-3.
7. For the reasons best known to the plaintiffs, who are claiming right in
the suit property through their father Rameshwar Prasad (defendant 1), did not file
the suit along with Rameshwar Prasad. Although, he has supported the case of
plaintiffs by filing written statement and in his statement, but in my considered
opinion in the lifetime of Rameshwar Prasad, who never claimed any right in the
suit property, the plaintiffs had no right to file the suit, especially in presence of
the registered gift deed dtd. 26.11.1948 (Ex.D/22) and continuous mutation of
Chakradhar Prasad and defendants 2-3.
8. 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
concurrent judgment and decree passed by Courts below dismissing the suit.
9. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
10. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
KPS
