Madhya Pradesh High Court
Ajab Singh vs Ram Kumar on 18 January, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 S.A. No.3152/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 18th OF JANUARY, 2023
SECOND APPEAL No. 3152 of 2019
BETWEEN:-
AJAB SINGH S/O DILIP SINGH RAGHUWANSHI,
AGED ABOUT 76 YEARS, OCCUPATION:
AGRICULTURIST THROUGH, POWER OF
ATTORNEY HOLDER RAMSHWAR S/O SHRI AJAB
SINGH AGE 45 YEARS R/O VILLAGE MADHIYA
DEORI, TEHSIL SILWANI RAISEN (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SANJIV KUMAR MISHRA - ADVOCATE )
AND
1. RAM KUMAR S/O SHRI SARDAR SINGH
RAGHUWANSHI, AGED ABOUT 35 YEARS,
R/O SHAPUR SILWANI DISTRICT RAISEN
(MADHYA PRADESH)
2. SANJAY S/O SHRI MAN SINGH
RAGHUWANSHI, AGED ABOUT 30 YEARS,
VILLAGE KHURSURU TEH. UDAYPURA
(MADHYA PRADESH)
3. RAMAKANT S/O SHRI DILIP SINGH
RAGHUWANSHI, AGED ABOUT 42 YEARS,
VILLGE SAHPUR TEH. SILWANI (MADHYA
PRADESH)
4. GHANSHYAM S/O SHRI PADAM RAJAK,
AGED ABOUT 35 YEARS, R/O VILLGE
SAHPUR TEHSIL SILWANI, DISTRICT
2 S.A. No.3152/2019
RAISEN (MADHYA PRADESH)
5. STATE OF M.P. THROUGH COLLECTOR
DISTRICT RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(MS. SHIVALIKA WADIWA - ADVOCATE FOR THE CAVEATOR, MS. PAPIYA
GHOSE - PANEL LAWYER FOR THE STATE)
.........................................................................................................
This appeal coming on for admission this day, the court passed the
following:
JUDGMENT
This Second Appeal has been filed under Section 100 of CPC against the judgment and decree dated 13.08.2019 passed by Second Additional District Judge, Begumganj, District Raisen in Regular Civil Appeal No.100019/2016 arising out of judgment and decree dated 09.09.2016 passed by Civil Judge, Class II Silwani, District Raisen in Civil Suit No.20-A/2012.
2. The present Appeal has been filed by the plaintiff.
3. The facts necessary for disposal of the present Appeal in short are that according to the plaintiff, Khasra No.5 area 10.16 acres and Khasra No.201/4 area 0.74 decimal, total area 10.90 acres of land was in the ownership and in possession of Smt. Jijjo Bai, who is Bua of the appellant (sister of father of the appellant). She died issueless in the year 2008. Accordingly, the plaintiff got his name mutated in the revenue records being the legal representative of Jijjo Bai. It was claimed that the defendant No.1 is a powerful contractor of the area and on the basis of forged Will dated 01.01.2008 and 29.09.2000, he got an order passed 3 S.A. No.3152/2019 on 22.05.2008 and got his name mutated. The plaintiff challenged the said order before the SDO, who by order dated 22.09.2008 set aside the order of the Tehsildar and accepted the mutation of name of the plaintiff. Thereafter, the defendant No.1 on the basis of forged Will dated 29.09.2000 and 01.01.2008, filed a civil suit No.29A/2010 for declaration of title and permanent injunction and an application under Order 39 Rule 1 and 2 CPC was dismissed by the trial Court by order dated 20.09.2010. During the pendency of the civil suit, the defendant No.1 succeeded in getting his name mutated in the revenue records and under an apprehension that he may not succeed in the civil suit, he got the civil suit No.29A/2010 dismissed for want of prosecution. Thereafter, the brother-in-law of the defendant No.1, namely; Sanjay/defendant No.2 with the help of the defendants No.3 and 4 made an effort to forcibly take possession of the land in dispute on the ground that the defendant No.1 has executed a sale deed in favour of the defendant No.2, which was reported by the plaintiff to the Police. However, under the influence of the defendants no action was taken by the Police. Taking the advantage of the fact that the plaintiff is residing at a distance of 50 Kilometre away from the land in dispute and in spite of the rejection of an application under Order 39 Rule 1 and 2 of CPC, the defendants have cultivated the land and have dispossessed the plaintiff. Accordingly, a suit was filed for declaration that the Will executed by Jijjo Bai on 01.01.2008 and Will executed by Gyarsi Lal on 29.09.2000 are forged documents and after the death of Jijjo Bai, the plaintiff is the owner and in possession of the land in dispute as well as for declaration of sale deed dated 05.09.2012 executed by defendant No.1 in favour of defendant No.2 as null and void. Apart from that permanent injunction was also sought against the defendants to the 4 S.A. No.3152/2019 effect that they should not interfere with the peaceful possession of the plaintiff either by themselves or through their agents or servants.
4. The defendants No.1 and 2 filed their written statements and contended that the land in dispute belongs to Gyarsilal Raghuvanshi and after his death, the name of his wife Jijjo Bai was mutated in her name. During the lifetime Late Gyarsi Lal had executed a Will dated 29.09.2000 in favour of the defendant No.1 and Jijjo Bai had also executed a Will dated 01.01.2008 thereby acknowledging the Will executed by Late Gyarsi Lal on 29.09.2000. The last rites of Jijjo Bai were performed by the defendant No.1. The name of the defendant No.1 was rightly mutated in the revenue records. The plaintiff in connivance with the revenue authorities got his name mutated, which was challenged by the defendant No.1. Thereafter, by order dated 30.07.2012 the name of the defendant No.1 was recorded in the revenue records and accordingly, on 05.09.2012, the defendant No.1 has executed the sale deed in favour of defendant No.2 for a consideration amount of Rs.9,50,000/-. The possession of the land was also handed over to the defendant No.2, who has sown crop of wheat, gram, etc. It was further claimed that the defendants No.3 and 4 have been wrongly impleaded as defendants in order to harass them. The defendants No.3 and 4 did not file any written statement.
5. The trial Court after framing issues and recording evidence, dismissed the suit filed by the plaintiff.
6. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the impugned judgment and decree.
7. Challenging the judgments and decrees passed by both the Courts 5 S.A. No.3152/2019 below, it is submitted by the counsel for the appellant that the appellant is legal heir of Smt. Jijjo Bai and thus, he was entitled to inherit her property. The Will executed by Gyarsi Lal and Jijjo Bai are forged documents and the Courts below committed a material illegality by upholding the Will executed by Gyarsi Lal and has proposed the following substantial questions of law:
"1. Whether the Learned Court below are justified in arriving the finding that the appellant is not the successor, however section 15 of the Hindu Succession Act 1956 provides general rules of succession in the case of female Hindus?
2. Whether finding arrived by the learned Appellate Court is contrary to Order 41 Rule 27 of the Code of Civil Procedure?
3. Whether finding arrived by the learned Appellate Court is contrary to Order 6 Rule 17 of the Code of Civil Procedure?
4. Whether finding arrived by the learned Appellate Court is contrary to Order 13 Rule 10 of the Code of Civil Procedure?
5.Whether learned court below are justified in arriving at finding that "will" Ex.D/3 and Ex.D/4 executed by Jijjo Bai and Gyarsi Lal is not forged?
6. Whether the findings arrived at by the courts below are is perverse?"
8. Heard the learned counsel for the appellant.
9. It is the case of the appellant that the land belongs to Gyarsi Lal, which was succeeded by his wife Jijjo Bai. Gyarsi Lal and Jijjo Bai died issueless and accordingly, the plaintiff claims himself to be the legal heir of Jijjo Bai being the son of brother of Jijjo Bai. The next question for 6 S.A. No.3152/2019 consideration is as to whether the appellant can succeed the property of Jijjo Bai, which was inherited by her after the death of her husband Gyarsi Lal or not ?
10. Section 15 of Hindu Succession Act reads as under:
"15. General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the heirs of the husband."
11. It is clear from Section 15(1)(B) of Hindu Succession Act that 7 S.A. No.3152/2019 after the death of a lady, the legal heirs of her husband would succeed her property. The civil suit is completely silent with regard to the legal representatives of Gyarsi Lal. It is nowhere mentioned as to whether Gyarsi Lal had any brother or sister or not? Thus, in the light of Section 15(1)(B) of Hindu Succession Act, the appellant being the son of brother of Jijjo Bai would not succeed to her property, which was inherited by her after the death of her husband Gyarsi Lal. Since, the appellant has no right or title to the property in dispute, no substantial question of law arises in the present appeal.
12. As a consequence thereof, the judgment and decree dated 13.08.2019 passed by Second Additional District Judge, Begumganj, District Raisen in Regular Civil Appeal No.100019/2016 as well as judgment and decree dated 09.09.2016 passed by Civil Judge, Class II Silwani, District Raisen in Civil Suit No.20-A/2012 are hereby affirmed.
13. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2023.01.25 17:48:41 +05'30'