Madhya Pradesh High Court
Smt.Pushpa Devi vs Gauri Shankar on 14 November, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA-379 of 2006
IN THE HIGH COURT OF MADHYA PRADESH
AT J AB A L PU R
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 14th OF NOVEMBER, 2025
SECOND APPEAL No. 379 of 2006
SMT.PUSHPA DEVI (DEAD) THROUGH LRS'
Versus
GAURI SHANKAR AND OTHERS
Appearance:
Shri Nikhil Tiwari and Shri Devashish Sakalkar - Advocates for the appellants.
Shri Ramji Pandey - Govt. Adv. for the State/respondent no.4.
ORDER
This second appeal has been preferred by the appellants/defendants
challenging the judgment and decree dated 01.12.2005 passed by District Judge,
Tikamgarh in civil appeal no.11A/2005 reversing the judgment and decree dated
26.02.2005 passed by Civil Judge Class-II, Tikamgarh in civil suit no.104A/2004,
whereby Trial Court dismissed the respondents/plaintiffs' suit filed for declaration
of title and partition in respect of 1/3rd share in the suit land area 15.572 hectare of
survey no.1099/2/1, which has been decreed by First Appellate Court vide
impugned judgment and decree.
2. Learned counsel for the appellants/defendants submits that the ascendants
of the parties namely Chaturbhuj Pathak, Narayandas Pathak and Sitaram Pathak
were three real brothers and amongst them partition of house, shop and other
moveable property took place in the year 1949 and thereafter in the year 1950, the
disputed land was purchased by Chaturbhuj Pathak from his self earnings, hence
the suit land is self-acquired property of Chaturbhuj Pathak and after his death in
the year 1982, the same was recorded in the name of defendants 5-7. He submits
that although no sale deed regarding purchase of the suit land was placed on
SA-379 of 2006
record, but even as per the plaint averments, it is an undisputed fact that the land
was purchased by Chaturbhuj Pathak from his self earnings and even if the
defendants did not produce the sale deed on record, it cannot be presumed that the
suit land is joint family property of Chaturbhuj Pathak, Narayandas Pathak and
Sitaram Pathak. He submits that taking into consideration the entire oral and
documentary evidence available on record, Trial Court rightly held the suit
property to be exclusive property of Chaturbhuj Pathak and after his death, of the
defendants 5-7. He also submits that the LRs of Sitaram Pathak never disputed the
factum of ownership of Chaturbhuj Pathak or of the defendants 5-7 over the
disputed land, rather admitted the same to be exclusive property of Chaturbhuj
Pathak. He also submits that plaintiffs have failed to prove that the suit land
belonged to the joint family or that it was purchased in the name of Chaturbhuj
Pathak from the nucleus of joint Hindu family and as such, First Appellate Court
has committed an illegality in passing the impugned judgment and decree. Learned
counsel for the appellants taking this Court to a certificate dated 27.06.1969
(Ex.D/6) submits that since the suit property was exclusive property of Chaturbhuj
Pathak, therefore, the compensation in respect of acquired land area 0.68 acre was
given only to Chaturbhuj Pathak and also submits that because the suit was filed in
the year 1995, therefore, it is clearly barred by limitation. In support of the case of
exclusive ownership of Chaturbhuj Pathak, learned counsel for the appellants also
invited attention of this Court towards the documents (Ex.D/3 and D/10 to D/13)
and in support of his submissions, he also placed reliance on the decisions in the
case of D.S. Lakshmaiah and another vs. L. Balasubramanyam and another, (2003)
10 SCC 310; and Smt. Krishna Bai and others vs. Shivnath Singh and others, AIR
1993 MP 65. With these submissions, he prays for admission of the second appeal.
3. Heard learned counsel for the appellants/defendants and perused the
record.
4. For the reasons best known to the parties, the sale deed allegedly
executed in favour of Chaturbhuj Pathak was not placed on record even before the
SA-379 of 2006
First Appellate Court or before this Court. Although, finding the suit property
belonging to Chaturbhuj Pathak and after him of the defendants 5-7, Trial Court
dismissed the suit, but First Appellate Court has taken into consideration a letter
dated 09.10.1956 (Ex.P/1) written by Chaturbhuj Pathak, which recites that the
suit property is joint property of the joint Hindu family and the document (Ex.P/2)
is a list in which the suit property was shown in the ceiling proceedings to be joint
property of the aforesaid three brothers. First Appellate Court has also taken into
consideration an admitted/unregistered document of partition dated 10.09.1985
(Ex.P/5) as well as an application (Ex.P/6) written by Vijay Kumar Pathak s/o
Sitaram Pathak, which show that the suit property is joint property of the parties.
In presence of the aforesaid documents and in absence of registered sale deed
allegedly executed in the exclusive name of Chaturbhuj Pathak, First Appellate
Court has held that the suit property is joint family property of the parties and
decreed the suit to the extent of 1/3 share of the plaintiffs.
5. So far as the argument advanced by learned counsel for the appellants
to the effect that the LRs of Sitaram Pathak did not claim any right in the suit land
is concerned, merely because they have not claimed any right in the suit land and
accepted the same to be belonging to Chaturbhuj Pathak exclusively, cannot be a
ground to hold that the suit property is not joint family property of the parties,
especially in absence of registered sale deed allegedly executed exclusively in
favour of Chaturbhuj Pathak.
6. In my considered opinion, in absence of any document of title in the
exclusive name of Chaturbhuj Pathak, it cannot be said that the suit property
belonged to Chaturbhuj Pathak exclusively and the findings recorded by First
Appellate Court regarding joint nature of the suit land, suffer from any perversity
or illegality.
7. So far as the question of grant of compensation in respect of an area 0.68
acres of the land to Chaturbhuj Pathak is concerned, solely on the basis of the
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certificate (Ex.D/6) also, it cannot be said that the suit property belonged to
Chaturbhuj Pathak exclusively.
8. So far as the question of limitation is concerned, the suit has been filed
for partition alleging the suit property belonging to joint family property of the
parties, therefore, in view of Article 110 of the Limitation Act until and unless the
defendants are able to establish their title by way of adverse possession, the suit
cannot be said to be barred by limitation.
9. In view of the aforesaid factual scenario, the decisions as well as the
documents (Ex.D/3 and D/10 to D/13) relied upon by learned counsel for the
appellants do not provide any help to them.
10. Resultantly, in absence of any substantial question of law, instant second
appeal fails and is hereby dismissed.
11. Pending application(s), if any, shall stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
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