Madhya Pradesh High Court
Daulatram vs Durgashanakar on 18 March, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 18th OF MARCH, 2024
SECOND APPEAL No. 1900 of 2019
BETWEEN:-
1. DAULATRAM S/O GANPATJI DAMAMI, AGED
ABOUT 63 YEARS, OCCUPATION: AGRICULTURE
GRAM GOPALPURA TEHSIL SITAMAU DISTRICT
MANDSAUR (MADHYA PRADESH)
2. PANNALAL S/O GANPATJI DAMAMI, AGED
ABOUT 46 YEARS, OCCUPATION:
AGRICULTURIST GRAM GOPALPUR TEH.
SITAMAU DIST. MANDSAUR (MADHYA
PRADESH)
3. LAKSHMAN S/O GANPATJI DAMAMI, AGED
ABOUT 47 YEARS, OCCUPATION:
AGRICULTURIST GRAM GOPALPUR TEH.
SITAMAU DIST. MANDSAUR (MADHYA
PRADESH)
4. SMT. SHAITANBAI D/O GANPAT DAMAMI, AGED
ABOUT 55 YEARS, OCCUPATION:
AGRICULTURIST GRAM GOPALPUR TEH.
SITAMAU DIST. MANDSAUR (MADHYA PRADESH)
5. SMT. SUNDARBAI D/O GANPATJI DAMAMI, AGED
ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST GRAM GOPALPUR TEH.
SITAMAU DIST. MANDSAUR (MADHYA PRADESH)
6. SMT. KANKURBAI D/O GANPAT DAMAMI, AGED
ABOUT 48 YEARS, OCCUPATION:
AGRICULTURIST GRAM GOPALPUR TEH.
SITAMAU DIST. MANDSAUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI DHARMENDRA SINGH PATEL- ADVOCATE)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 19-03-2024
19:03:28
2
AND
1. DURGASHANAKAR S/O GANPATJI DAMAMI,
AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURE GRAM GULIYANA TEH. AND
DISTRICT MANDSAUR (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MAYANK MISHRA - PANEL LAWYER FOR RESPONDENT/STATE)
--------------------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
ORDER
This appeal under Section 100 of CPC is filed against the judgment and decree dated 03.05.2019 passed by the learned First Additional District Judge, Mandsaur in Regular Civil Appeal No.49-A/2018 affirming the judgment and decree dated 07.04.2018 passed by the First Civil Judge, Class-II,Sitamau in Civil Suit No.91-A/2013 whereby the suit filed by the respondent/plaintiff for declaration, partition and permanent injunction against the appellants have been decreed by the both the Courts below.
2. The brief facts of the case are that plaintiff/respondent filed a civil suit before the trial Court and pleaded that plaintiff and defendants no.1 to 6 are real brothers and sisters and they are legal heirs of Ganpat. Ganpat was the original owner of the suit land. The suit land survey no.473 Rakba 1.45 hectare, survey no.474 Rakba 0.55 hectare situated at Gram Gopalpura, Tehsil Sitamau, district Mandsaur is the suit land. After the death of Ganpat, defendants/appellants are owner of the suit land as legal heirs of late Ganpat, but defendants no.1 to 3 got mutated their name in the revenue record without noticing the respondent/plaintiff. Hence, plaintiff/respondent filed a civil suit for partition and declaration of the suit land.
Signature Not Verified Signed by: REENA JOSEPH Signing time: 19-03-2024 19:03:28 33. Defendantsfiled written statementand denied the averments pleaded by the respondent/plaintiff and submitted that plaintiff was adopted by Nathu and he relinquished his share from the biological father. So he is not entitled to any share from his biological father.
4. The trial Court framed the issues and on the basis of the pleadings made by both the parties and after taking into consideration the evidence found that plaintiff is entitled to get partition and declaration of the disputed property and decreed the suit.
5. The appellants/defendantsbeing aggrieved by the judgment and decree filedfirst appealbefore the learned first appellate Court who affirmed the judgment and decree passed by the trial Court and dismissed the first appeal filed by the appellants/defendants.
6. Being aggrieved by the judgment and decree passed by the first appellate Court, the appellant/defendants filed the present second appeal on the ground that the judgment and decree passed by the trial Court as well as the first appellate Court are illegal and not based on appreciation of evidence. The trial Court and the first appellate Court have erred in allowing the suit preferred by the respondent/plaintiff. The findings of the trial Court as well as the first appellate Court are perverse and against the evidence available on record. Hence, it is submitted that the appeal deserves to be admitted on the substantial questions of law proposed by the appellant.
7. Heard learned counsel for the parties and perused the entire record of the trial Court as well as the first appellate Court with due care.
8. After perusal of the record it appears that respondent/plaintiff filed a civil suit against the defendants/appellants that he is the son of Ganpat and he is entitled to get share after the death of Ganpat in the suit land. It is pleaded that respondent/plaintiff was adopted by Nathu, so his right was relinquished from the property of Ganpat who is the biological father of the respondent/plaintiff, but perusal of the trial Court record and evidence it is found that defendants were unable to prove that plaintiff was adopted by Nathu Signature Not Verified Signed by: REENA JOSEPH Signing time: 19-03-2024 19:03:28 4 and plaintiff have no right in the property of biological father Ganpat. It is the duty of defendants to prove that plaintiff was adopted by Nathu but defendants/appellants were unable to adduce substantial evidence that plaintiff was adopted by Nathu. So on the basis of aforesaid evidence the trial Court as well as the first appellate Court gave concurrent finding that plaintiff/respondent has been able to prove that he has right in the property of Ganpat.
11. In the light of the aforesaid discussion, this Court is of the considered opinion that the impugned judgment and decree passed by the trial Court as well as the first appellate Court are well reasoned and based on due appreciation of oral as well as documentary evidence available on record. The findings recorded by the trial Court as well as the first appellate Court are concurrent finding of fact. The appellants have failed to show how the finding recorded by trial Court as well as the first appellate Court are illegal, perverse and based on no evidence. Thus, no substantial of law arises for consideration in the present appeal.
Accordingly, the present second appeal sans merit and is hereby dismissed at admission stage for the reasons indicated above.
(HIRDESH) JUDGE RJ Signature Not Verified Signed by: REENA JOSEPH Signing time: 19-03-2024 19:03:28 5 Signature Not Verified Signed by: REENA JOSEPH Signing time: 19-03-2024 19:03:28