Madhya Pradesh High Court
Vinod Kumar vs Suresh Alias Budhu on 1 May, 2020
Equivalent citations: AIRONLINE 2020 MP 632
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
S.A.No.2066/2018
Dinesh Kumar
Vs.
Suresh @ Buddhu & ors.
&
S.A.No. 2245/2018
Vinod Kumar & ors.
Vs.
Suresh @ Budhu & ors.
Single Bench Hon'ble Shri Justice Vishal Dhagat
Judgment delivered by Hon. Shri Justice Vishal Dhagat
Whether approved for Yes/No
reporting
Name of Advocates for For Appellants:- Shri Narendra Kumar
parties Sharma, Advocate in S.A.No.2066/2018
For Appellants:-Shri Priyank
Khandelwal, Advocate in S.A.No.
2245/2018.
For respondent/Caveator:- Shri Ashish
Shroti, Advocate in both the cases.
For State:- Shri Uttakarsh Agrawal, Panel Lawyer in both the cases.
Law laid down Significant paragraph numbers (O R D E R) 01.05.2020
1. Appellant namely Dinesh Kumar alias Kallu in S.A.No.2066 of 2018 and Appellants in S.A.No.2245 of 2018 namely Vinod Kumar, Digitally signed by S HUSHMAT HUSSAIN Date: 06/05/2020 12:26:32 2 Smt. Indra Bai, Smt. Gubba Bai alias Geeta were defendants before the trial Court. Suit was filed by Smt. Mullu Bai (Dead) Krishna Bai, Indra Bai and Vasundhara for partition, possession and permanent injunction against the defendants. The case of the appellants in short was that the land in Village Palanpur, Jaipur, and Sanwal Kheda measuring total about 116.98 acres was owned by Ram Kishen Raghuvanshi. After the death of Ram Kishen Raghuvanshi the land was entered in the name of his sons. It was averred by the plaintiffs i.e Wife and daughter of Ram Kishen Raghuvanshi that land in question in Civil Suit was ancestral property of Ram Kishen. Mullu Bai and Krishna Bai were given 19 acres of land and Vasundhara was given 5 acres of land but later on defendant refuse to give possession of the said land to them and land was also entered in their names in revenue record. Due to this eventuality they had filed the suit of partition stating therein that land was not divided between the legal heirs of deceased Ram Kishan Raghuvanshi and his sons mutated their names in the ancestral land in collusion with the revenue officers.
2. Trial Court decreed the suit filed by the plaintiff which was affirmed by the Appellate Court. It was held by the trial Court that legal representatives of Ram Kishen are entitled to get 16-16 share in the suit property. The judgment and decree passed by the trial Court as well as by Appellate Court is challenged by the appellants on the ground that in judgment and decree the part of land in respect of which Digitally signed by S HUSHMAT HUSSAIN Date: 06/05/2020 12:26:32 3 no prayer was made for partition, possession and permanent injunction has also been allowed. The said land was self acquired land of Ram Adhar. Trial Court as well as Appellate Court committed an error of law in decreeing the suit in respect of such lands without any pleadings and proof. In view of above, it is submitted by the counsel appearing for the appellant that judgment and decree passed by the trial court as well as appellate Court stands vitiated.
3. Counsel appearing for the appellants has proposed two substantial questions of law:- (i) whether the Courts below erred law in holding that no partition took place between the parties though fact of partition was pleaded and admitted by PW-1 Vasundhra plaintiff herself?
The aforesaid proposed question of of law is in fact a question of fact. Two Courts has given a concurrent findings of fact that partition has not taken place between the parties and said finding cannot be disturbed in second appeal by this Court. Appellant does not say that finding is perverse. In view this first substantial question of law did not arise in appeal.
4. Learned counsel appearing for the appellants has proposed second substantial question of law:- (ii) whether the Courts below has committed an error of law in decreeing the suit in respect of Khasra No. 22/2, 23/2, 24/2, 38/3 and 40/2 measuring 15.31 acres as same were not Digitally signed by S HUSHMAT HUSSAIN Date: 06/05/2020 12:26:32 4 part of pleadings and no relief was sought in respect of such lands therefore Courts below committed an error in decreeing the suit in respect of such land and overlooking the fact that property in question was self acquired property of Ramdhari ?
Considered second proposed substantial question of law. Since there is no pleadings in respect of aforesaid Khasra numbers, therefore, Appellate Court as well as trial Court could not have passed a decree of partition in respect of such land. In view of above this second appeal is admitted on the following substantial question question of law: -
"Whether the Courts below erred in law and travel beyond the pleadings of the parties in decreeing the suit of the plaintiff in respect of land bearing Khasra No.22/2, 23/2 24/2 and 38/3, 40/2 measuring total 15.31 acres do no relief in respect of these land was shot and same was purchased by father of appellants and is the self acquired property of Ramdhari?"
5. Application filed by the appellant under Order 41 Rule 27 of CPC will be considered at the time of final hearing of second appeal. Respondent may file reply of said application.
6. Judgment and decree dated 23.06.2018 passed by District Judge, Hoshangabad in respect of Khasra No. 22/2, 23/2, 24/2, 38/3 and 40/2 measuring 15.31 acres measuring total 1.31 acres will remain stayed till next date of hearing. Issue notices to respondents on aforesaid Digitally signed by S HUSHMAT HUSSAIN Date: 06/05/2020 12:26:32 5 substantial questions of law on payment of process fee within two weeks
7. List these matters thereafter.
(Vishal Dhagat) Judge sh Digitally signed by S HUSHMAT HUSSAIN Date: 06/05/2020 12:26:32 6 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR S.A.Nos.2066/2018 Appellants : Dinesh Kumar Vs. Respondents : Suresh @ Buddhu & ors.
&
S.A.No.2245/2018
Appellants : Vinod Kumar & ors.
Vs.
Respondents : Suresh @ Buddhu & ors.
Single Bench: Hon'ble Shri Justice Vishal Dhagat
Orders post for 1st May, 2020
(Vishal Dhagat)
Judge
30/04/2020
Digitally signed by S HUSHMAT
HUSSAIN
Date: 06/05/2020 12:26:32