Madhya Pradesh High Court
Smt. Bitti Mallah vs Smt. Monti Mallah (Died) Through Rajjan ... on 18 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:26025
1 SA-37-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 18th OF JUNE, 2025
SECOND APPEAL No. 37 of 2023
SMT. BITTI MALLAH AND OTHERS
Versus
SMT. MONTI MALLAH (DIED) THROUGH RAJJAN MALLAH AND
OTHERS
Appearance:
Shri P. S. Baghel - Advocate for the appellants.
ORDER
This appeal was heard and reserved for orders on admission on
09/05/2025.
2. This second appeal under Section 100 of Code of Civil
Procedure filed by the appellants/defendants being aggrieved by
the judgment and decree dated 20/09/2022 passed b y the learned
9th District Judge, Satna in Regular Civil Appeal
No.218/2019 (Smt. Bitti Mallah & other vs. Smt. Monty Mallah
(died) & others),
arising out of the judgment and decree dated 18/10/2019 passed
by the Second Additional Judge to the Court of First Civil Judge,
Class-II, Satna District Satna in Civil Suit No.252-A/2012.
3. Learned Second Additional Judge to the Court of First Civil
Judge, Class-II, Satna in Civil Suit No.252-A/2012 (Montee
Mallah (dead) through LRs & others vs. Krishnadeen (dead)
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through LRs) filed for the suit property situated in villages Katiya
and Sijahata Tehsil Raghuraj Nagar District Satna and village
Hardua Majhol Tehsil Nagaud Distt. Satna and area mentioned in
detailed in para-1 of the judgment for declaration, partition and
possession was decreed by the trial Court vide judgment dated
18/10/2019. It was admitted fact between the parties that the
common ancestor of the plaintiffs and the defendants was Shri
Raghu Nandan Mallah. It is also admitted fact that Ishwardeen,
Krihnadeen and Ramruch Mallah were the son of Shri Raghu
Nandan Mallah. Ishwardeen is survived by his two daughter
Montee Mallah and Durghatiya Mallah. Defendant Nos. 1 & 2
while resisting the suit pleaded that during his life time,
Ishwardeen has executed a Will (Ex.D/1) dated 15/01/1967 with
respect to his share in the suit property in favour of his brother
Krishnadeen and Ramruch.
4. The trial Court held that plaintiffs are entitled for partition in
the suit property situated in villages Sijahata, Katiya and Hardua
and held that regarding total disputed lands, they are entitled for
1/6th share and also held that after the death of her father, sister of
the plaintiff Durghatiya Mallah is also a Bhumiswami for share of
her father Ishwardeen and also held that there was no earlier
partition.
5. Being aggrieved by the aforesaid order, defendants have filed
an appeal bearing Civil Appeal No.218/2019 wherein learned first
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Appellate Court vide judgment and decree dated 20/09/2022
dismissed the appeal of defendants and affirmed the decree.
6. At the time of hearing, it was submitted by learned counsel
for the appellants that although there was no counter claim of the
defendants but Will was proved. The suit was time barred. In
para-24 of the cross-examination of Montee, it has refereed that
about 7-8 years ago she came to know about the Will as one
witness said to her that "Tumhare Peeta Likha Gaye Hai",
therefore unregistered Will (Ex.D/1) should have been believed.
7. Considered the arguments of learned counsel for the appellants,
perused the records, pleadings, issues and evidence.
8. On perusal of the record, it is seen that Will (Ex.D/1) dated
15/01/1967 is an unregistered Will and it is full of suspicious
circumstances as held by the trial Court in its judgment in Paras
28 to 51. This Will was never earlier produced anywhere
including revenue mutation proceedings and for the first time
produced in Civil Suit filed on 16/06/1981.
9. Regarding suit being time barred it is only when rights of any
party is under danger then he is entitled to file suit as cause of
action has arisen. Even otherwise, cause for partition is a recurring
cause, hence suit is not time barred. If Montee (PW-1) has
admitted in para-24 that someone told her that "Tumhare Peeta
Likha Gaye Hai", that would not proved Will (Ex.D/1).
10. Both the courts have considered all the factual and legal
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aspects as per pleadings, issues and evidence of both the parties ,
therefore there is nothing by way of substantial question of law on
which this second appeal can be admitted.
11. Regarding the judgments referred by learned counsel for the
appellants in the case of Ashutosh Samanta (D) by LRs & others
v. SM. Ranjan Bala Dasi & others, passed in Civil Appeal
No.7775 of 2021, it is seen that facts of that case are different
from the facts of present case as that matter is relating to grant of
letters of administration under Section 278 of the Indian
Succession Act, 1925.
12. Even otherwise, the jurisdiction of this Court to interfere
with the findings of fact under Section 100 of the Code of Civil
Procedure is well defined by catena of decisions of the Supreme
Court. This Court cannot interfere with the finding of fact until or
unless the same is perverse or contrary to material on record. [See:
Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others,
(2009) 5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others,
(2001) 7 SCC 189, Union of India v. Ibrahim Uddin and Antoher,
(2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1
SCC 158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012)
7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu
Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v.
Ranganath and Others, (2015) 4 SCC 264].
13. Thus, in view above analysis, no substantial question of law
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arises in this appeal on which it can be admitted. In the result, the
appeal stands dismissed at admission stage itself.
(AVANINDRA KUMAR SINGH)
JUDGE
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