Madhya Pradesh High Court
Parimal Singh vs Jagdish Singh Tomar on 1 March, 2016
1 Second Appeal No.646/2007
[Parimal Singh vs. Jagdish Singh Tomar and others]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
SECOND APPEAL NO.646/2007
.........Appellant: Parimal Singh
Versus
.......Respondents : Jagdish Singh and others
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Shri A.K. Jain, Advocate for appellant.
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Date of hearing : 01/03/2016
Date of judgment : 01/03/2016
Whether approved for reporting :
JUDGMENT
(01/03/2016) Per Justice Rohit Arya, This appeal under Section 100 CPC by defendant is against the reversing judgment and decree dated 20/7/2007 in civil appeal No.40A/2006 decreeing the suit for declaration and permanent injunction. Plaintiffs' suit was dismissed by the trial court vide judgment and decree dated 18/5/2006 in civil suit No.214A/2004.
2. Following questions of law are answered for disposal of this appeal:-
1. Whether on facts and in the circumstances of the case the first appellate court was justified having reversed the judgment and decree of the trial court?
2. Whether the trial court was justified dismissing the suit for declaration; the suit property is of joint ownership with equal share of 1/6th each between plaintiffs and 2 Second Appeal No.646/2007 [Parimal Singh vs. Jagdish Singh Tomar and others] defendant, in absence of evidence of partition?"
3. Facts necessary and relevant for disposal of this appeal are to the effect that the dispute between the parties is confined to agricultural lands falling in survey nos.597 and 668 situated at village Chilonga, Tahsil Ater. One Kanchan Singh had four sons, namely, Sanwle Singh, Chhote Singh, Jhimman Singh and Vihangam Singh. Chhote Singh had died intestate. Sanwle Singh had two sons, namely, Narayan Singh and Kanhaiya Singh. As the dispute is in between these two brothers, hence, remaining pedigree is not referred to. Plaintiffs are the sons of Kanhaiya Singh and defendant no.1-Parimal Singh is the son of Narayan Singh. Plaintiffs filed a suit for declaration that the suit property is of the joint ownership and in joint possession of plaintiffs and defendant no.1 with 1/6 th share each. There is no partition effected between them. As defendant no.1 behind the back of the plaintiffs had managed the revenue record in his favour, the instant suit was filed for declaration and permanent injunction.
4. Defendant no.1 filed written statement and denied the plaint allegations.
5. Based on pleadings, the trial court framed issues, allowed parties to lead evidence and dismissed the suit. On appeal, the first appellate court reconsidered the entire pleadings and evidence on record. It has been found that undisputedly the suit property was part of the ancestral property and plaintiffs and 3 Second Appeal No.646/2007 [Parimal Singh vs. Jagdish Singh Tomar and others] defendant no.1 have 1/6th share each. There was no pleading in the written statement that the suit property was ever partitioned.
There was no evidence as regards partition as well. Hence, it has been found that both; plaintiffs and defendant no.1, are joint owners and in joint possession of the suit property. Accordingly, decreed the suit with declaration that the suit property is the ancestral and joint family property in which plaintiffs and defendant no.1 have 1/6 th share each under the provisions of Hindu Succession Act in absence of any partition between them.
6. In view of the aforesaid, in the opinion of this Court, the first appellate court was justified having reversed the judgment and decree passed by the trial court and decreed the suit. The trial court was not right having dismissed the suit in the facts and circumstances of the case, hence, issue no.1 is answered in affirmative and issue no.2 is answered in negative. Accordingly, the second appeal stands dismissed.
(Rohit Arya) Judge Arun*