Madhya Pradesh High Court
Suresh Kumar Paliwal vs Smt. Tarabai on 31 October, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA-2210 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JA BA LP UR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 31st OF OCTOBER, 2025
SECOND APPEAL No. 2210 of 2025
SURESH KUMAR PALIWAL
Versus
SMT. TARABAI AND OTHERS
Appearance:
Shri Vikram Johri - Advocate for the appellant.
Shri Devdatt Bhave - Advocate for respondent 1.
Shri Abhinav Tiwari - Panel Lawyer for respondent 5/State.
ORDER
This second appeal is preferred by the appellant/defendant 1
challenging the judgment and decree dated 19.08.2025 passed by 2nd District
Judge, Sohagpur, District Narmadapuram in RCA No.25/2023 affirming the
judgment and decree dated 02.11.2023 passed by Civil Judge Junior Division,
Sohagpur, District Narmadapuram in RCSA No.26/2020, whereby both the
Courts below have concurrently decreed the respondent 1/plaintiff's suit for
declaration of title and permanent injunction, by declaring her to be the
exclusive owner of khasra No.126/1 area 3.309 hectare and 1/3 share in
khasra no.238 area 4.655 hectare.
2. Learned counsel for the appellant/defendant 1 submits that the land
survey no.126/1 area 3.309 hectare exclusively belonged to Dhanraj and the
land survey no.238 area 4.655 hectare belonged to Balaprasad Paliwal.
Balaprasad was survived by three sons namely Dhanraj, Ramesh Chand and
Premnarayan. The plaintiff - Tarabai is daughter of Dhanraj; defendants 1 and
2 are sons of Ramesh Chand; and defendants 3 and 4 are son and daughter of
Premnarayan. He submits that being son of Balaprasad, Dhanraj was having
SA-2210 of 2025
1/3 share in the land survey No.238. He submits that Dhanraj executed a
registered Will dated 25.05.2016 (Ex.D/4) in favour of defendant 1-Suresh
Kumar Paliwal, therefore, he is owner/bhumiswami and in possession of the
suit land and both the Courts below have committed an illegality in declaring
the plaintiff to be exclusive owner of land survey No.126/1 and 1/3 share in
the land survey No.238, by discarding the registered Will dated 25.05.2016
(Ex.D/4). He submits that the Will was proved by the defendant 1 in
accordance with the provisions of Section 68 of the Indian Evidence Act,
1872 and since the attesting witness Surendra Kumar Paliwal (DW-3) in his
oral testimony did not support the case of the defendant 1, therefore, he was
declared hostile and was cross-examined by the defendant 1 and although
another attesting witness Kamlesh Narayan due to his ailment and
hospitalization, was not examined, but even from the oral testimony of
attesting witness Surendra Kumar (DW-3), the Will in question was proved in
accordance with the law but the Courts below have without taking into
consideration the oral testimony of attesting witness Surendra Kumar,
committed an illegality in disbelieving the Will and in decreeing the suit, that
too in absence of any relief of possession or partition claimed by the plaintiff
in the suit. He also submits that the plaintiff herself did not come in the
witness box and her husband-Leeladhar (PW-1) examined himself as a power
of attorney holder, which despite being fatal to the suit, both the Courts below
have committed an illegality in decreeing the suit. With these submissions he
prays for admission of the second appeal.
3. Learned counsel appearing for the respondent 1 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.
SA-2210 of 2025
5. It is an undisputed fact available on record that Dhanraj was
exclusive owner/bhumiswami of the land survey No.126/1 and in the land
survey no.238 he was having 1/3 share and in absence of proof of Will dated
25.05.2016 (Ex.D/4) allegedly executed by Dhanraj in favour of the defendant
1-Suresh Kumar Paliwal, the plaintiff-Smt. Tarabai being daughter is entitled
to succeed the property left by her father Dhanraj.
6. It is apparent that the Will was witnessed by Surendra Kumar
Paliwal and Kamlesh Narayan. One of the attesting witnesses, namely
Surendra Kumar has not supported the case of the defendant 1 and for the
reasons best known to the defendant 1, another available/alive attesting
witness Kamlesh Narayan was not examined. As has been argued by learned
counsel for the appellant, even if said attesting witness was hospitalized, his
examination could have been done on commission. In these circumstances,
both the Courts below have held that the defendant 1 has not been able to
prove due execution and attestation of the Will (Ex.D/4). Upon due
consideration of the entire material available on record, this Court does not
find any illegality in the concurrent findings recorded by Courts below in
respect of execution of the Will.
7. So far as the argument advanced by learned counsel, regarding non-
examination of the plaintiff-Smt. Tarabai is concerned, as per provisions of
Section 120 of the Indian Evidence Act, 1872 in the instant civil case,
evidence of the plaintiff's husband namely Leeladhar Paliwal being
admissible, has rightly been taken into consideration by the Courts below
while passing the impugned judgment and decree.
8. It is also pertinent to mention here that the suit property bearing
survey no.238 being agricultural land, the plaintiff was not required to seek
relief of possession and partition, because actual partition is to be effected by
the revenue court upon filing requisite application under Section 178 of the
M.P. Land Revenue Code, 1959.
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9. Even after arguing at length, learned counsel for the appellant has
not been able to point out any illegality or perversity in the impugned
judgment and decree passed by Courts below.
10. In view of the aforesaid discussion, this Court also does not find
any illegality or perversity in the concurrent judgment and decree passed by
Courts below.
11. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
12. Pending application(s), if any, shall stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
SS
