Madhya Pradesh High Court
Mangilal vs Kalibai on 12 January, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF JANUARY, 2024
SECOND APPEAL No. 168 of 2022
BETWEEN:-
MANGILAL S/O RAMLAL BAGRI, AGED ABOUT 35
YEARS, GRAM DEVARIYA VIJAY, TEHSIL SUWASARA
(MADHYA PRADESH)
.....APPELLANT
(RAM LAL PATIDAR, LEARNED COUNSEL FOR THE PETITIONER .
)
AND
1. KALIBAI S/O RAMLAL BAGRI W/O KAILASH
BAGRI, AGED ABOUT 50 YEARS, DEVARIYA VIJAY,
TEHSIL SUWASARA (MADHYA PRADESH)
2. PARASBAI S/O RAMLAL BAGRI, AGED ABOUT 45
YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA DIST
MANDSAUR (MADHYA PRADESH)
3. KAILASHBAI W/O KALURAM BAGRI, AGED
ABOUT 40 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
4. SHIVLAL S/O BAGDIRAM BAGRI, AGED ABOUT 45
YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA DIST
MANDSAUR (MADHYA PRADESH)
5. MAHADEV S/O BAGDIRAM BAGRI, AGED ABOUT
50 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
6. KACHRULAL S/O SHANKAR BAGRI, AGED ABOUT
52 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
7. PRABHULAL S/O SHANKAR BAGRI, AGED ABOUT
50 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 1/18/2024
10:46:08 AM
2
8. RADHULAL S/O SHANKAR BAGRI, AGED ABOUT
47 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
9. MOHANLAL S/O SHANKAR BAGRI, AGED ABOUT
45 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
10. JAGDISH S/O KACHRULAL BAGRI, AGED ABOUT
39 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
11. GANPATLAL S/O KACHRULAL BAGRI, AGED
ABOUT 37 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
12. BAPULAL S/O PRABHULAL BAGRI OCCUPATION:
32 DEVRIYA VIJAY, TEHSIL SUWASRA DIST
MANDSAUR (MADHYA PRADESH)
13. DASHRATHLAL S/O PRABHULAL BAGRI, AGED
ABOUT 30 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
14. SHYAMUBAI W/O KACHRULAL BAGRI, AGED
ABOUT 49 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
15. SHYAMU BAI W/O PRABHULAL BAGRI, AGED
ABOUT 47 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
16. BASANTIBAI W/O RADHULAL BAGRI, AGED
ABOUT 45 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
17. GOMABAI W/O MOHANLAL BAGRI, AGED ABOUT
42 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
18. ANOKHIBAI W/O JAGDISH BAGRI, AGED ABOUT
37 YEARS, DEVRIYA VIJAY, TEHSIL SUWASRA
DIST MANDSAUR (MADHYA PRADESH)
19. SHYAMUBAI W/O GANPATLAL BAGRI, AGED
ABOUT 35 YEARS, DEVRIYA VIJAY, TEHSIL
SUWASRA DIST MANDSAUR (MADHYA PRADESH)
20. STATE OF M.P. COLLECTOR MANDSAUR
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 1/18/2024
10:46:08 AM
3
(MADHYA PRADESH)
21. PURALAL S/O MAGAN BAGRI, AGED ABOUT 72
Y E A R S , GRAM DEVRIYA VIJAY, TEHSIL
SUWASARA DIST MANDSAUR PRESENT ADDRESS
GRAM GURADIYAJOGA TEHSIL BHAWANI
MANDI (RAJASTHAN) (RAJASTHAN)
22. LALA S/O MAGAN BAGRI, AGED ABOUT 67 YEARS,
GRAM DEVRIYA VIJAY, TEHSIL SUWASARA DIST
MANDSAUR PRESENT ADDRESS GRAM
GURADIYAJOGA TEHSIL BHAWANI MANDI
(RAJASTHAN) (RAJASTHAN)
23. RAMA S/O MAGAN BAGRI, AGED ABOUT 62
Y E A R S , GRAM DEVRIYA VIJAY, TEHSIL
SUWASARA DIST MANDSAUR PRESENT ADDRESS
GRAM GURADIYAJOGA TEHSIL BHAWANI
MANDI (RAJASTHAN) (RAJASTHAN)
.....RESPONDENTS
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This appeal under section 100 of the CPC has been filed by the appellant/plaintiff against the judgment and decree dated 30.10.2021 passed by 5th District, Mandsaur in Regular Civil Appeal No.82/2017 arising out of the judgment and decree dated 11.05.2017 passed by Civil Judge, Class-I, Sitamau, district Mandsaur in civil suit no.63A/2021 by which the first appellate court has affirmed the findings of the trial Court by which plaintiff's suit for declaration and injunction of the disputed property has been rejected by the trial Court.
2. The present suit was filed by the plaintiff and pleaded that plaintiff and defendants are legal heirs of Mohanji. Plaintiff No.1 is the son of Maganji and plaintiffs no.2 & 3 are sons of Bagdiram and defendants No.1 to 4 are the sons of Shankar. Survey No.433/10 rakba 0.021, survey no.577/2 rakba 0.105, Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 1/18/2024 10:46:08 AM 4 survey no.578/1 rakba 0.178 are, survey no.564/1 rakba 0.309, survey no.577/1 rakba 0.318, survey no.578/2 rakba 0.763, new no.996 rakba 1.410 hectare are in the name of Bagdiram in revenue record and survey no.491 rakba 1.244, new no.1074, survey no.186 rakba 1.786 hectare are in the name of defendants no.1 to 4 in revenue record. These are suit lands. In addition to this survey no.1032, 1034, 1035 are in the name of Kanhaiyalal, Ramibai, Surajbai, Ramesh, Rampraksad, Bagubai, Vansantbai, Narayanlal, Baluram, Govindram, Shambulal, Jayaram, Radheshyam, Gitabai, Prembai, Mohanbai have 1/'2 share and 1/2 share in the name of Bagdiram, Kachru, Mohan, Raghu, Prabhu, Gitabai in revenue reocrd. Survey no.1034 7 1035 are come in the share of plaintiff. These are also suit property. Plaintiffs are in the possession of suit land and doing agriculture. Suit land survey no.996 was mutated in the name of Kachru, Mohan, Raghu and prabhu etc. in 2006-2007 in revenue record without any legal order. Plaintiff filed an application for correction of this which was rejected by the Tehsildar and affirmed by SDO but Commissioner, Ujjain reversed the finding and directed the Tehsildar to correct the entry. Defendants are trying to dispossess them forcefully and denied their title so prayed for declaration and injunction of disputed property.
3. Defendants filed written statement and stated that disputed suit land are in the name of defendants in the revenue record and they are in possession of the suit land. Plaintiffs are not in possession of the suit land and legal heirs of Mana are necessary party so prayed for rejection of the suit.
4. On the basis of the aforesaid pleading trial court has framed issued and recorded evidence of the parties. Trial Court after recording evidence upon its appreciation passed the judgment and decree dated 11.05.2017 whereby suit filed by the plaintiff for declaration and injunction was rejected on the finding Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 1/18/2024 10:46:08 AM 5 that plaintiff was not found in possession of the suit land. The judgment and decree passed by the trial Court was challenged by the plaintiff/appellant against the dismissal of the suit for the relief of permanent injunction and declaration. The first appellate court i.e. 5th District Judge, Mandsaur has also dismissed the appeal preferred by the plaintiff/appellant by the impugned judgment and decree dated 30.10.2021.
5. Being aggrieved by the judgment and decree dated 30.10.2021 passed by the first appellate Court this second appeal was filed by the appellant/plaintiff and submitted that first appellate court has committed grave error in law in affirming the judgment and decree passed by the trial court. He further submitted that both the trial court and first appellate court committed error in law in dismissing the suit filed by the plaintiff. He further submitted that plaintiff was possession holder of the disputed property so prayed for setting aside the judgment of the courts below.
6. Heard learned counsel for the appellant and perused the record.
7. Learned courts below have recorded categorical finding that plaintiff is not possession holder and title holder of the disputed land. Courts below held that plaintiff/appellant was not sole owner of the disputed land and first appellatec ourt rightly held that plaintiff has unable to prove that he got disputed property after partition.
8. It is well settled that question of possession of the suit land is essential one of the fact. Plaintiff claimed that he is in continuous possession of the suit land and he is title holder of the disputed property but perusal of the record it was found that plaintiff/appellant has unable to prove that he was sole owner of the disputed land.
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 1/18/2024 10:46:08 AM 69. Hence, perusal of the judgments of the courts below it was found that courts below on appreciation of oral and documentary evidence on record declined to accept the case of the plaintiff that he was sole possession holder of the suit land. The first appellate court which is the finding court of fact found that plaintiff was not sole owner of the disputed property and he is unable to prove that he got disputed property after partition. Hence, first appellate court as well as trial court has not committed any error in holding that plaintiff is not sole owner of the disputed property. So in view of the aforesaid discussion, I find no illegality or perversity in the judgment and decree and findings recorded by the courts below and the reason given by it for the same. Thus, affirmed the same. The appeal does not involve any substantial question of law and is accordingly dismissed inlimine.
(HIRDESH) JUDGE hk/ Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 1/18/2024 10:46:08 AM