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Madhya Pradesh High Court · body

1979 DIGILAW 121 (MP)

Ganesh Dutt Tiwari v. Kailash Narain

1979-03-19

S.S.SHARMA

body1979
Short Note : The lower appellate Court found that the suit land belonged to the plaintiffs and confirmed the findings of the trial Court. It reduced the amount of mesne profits from Rs. 85 to Rs. 60. But for this verification the appeal was dismissed. The judgment of the lower appellate Court does not refer to any other point having been raised. 2. Learned counsel for the appellant contended that the conclusion of both the Courts below about the suit property belonging to the plaintiffs was based on oral evidence and such documents which could be prepared at any time. He also challenged that the map Ex.P-5 and the award Ex.P-6 were not admissible in evidence for want of registration. In support of his objection regarding the admissibility of this award learned counsel referred to the decision of their Lordships in Satiskunar and others v. Surinder Kumar and others, AIR 1970 SC 833 and a decision of this Court in Sewaram v. Rammoo (1963 MPLJ SN 77). Held : The recital in Clause 4 of Ex.P-6 is to the effect that a partition in between brothers has already taken place and accordingly each is in possession of the respective movable and immovable property. The map Ex.P-5 also appears to have been prepared accordingly. Even in agreement Ex.P-7 there is a similar reference. The plaintiff in paragraph 7 of the plaint had specifically pleaded that a partition between defendant and his brothers had taken place in 1933-34. The defendant did not deny this in written statement. 3. The defendants had claimed the suit property to be their ancestral property. Ratanlal (P.W.1), brother of the plaintiff was one of the Panchas in that award. By this award and the map it was sought to be made out that the suit property or Dhonga Kaliya Baro of which this land formed a part was not referred in the award as defendant's ancestral property and was not even partitioned before. That being so, the objection about the admissibility of the documents, Ex.P-5 and Ex.P-6 for want of registration is rejected. With regard to Ex.P-6 it was suggested on behalf of the appellants that there was some interpolation. Ratanlal (P.W.1) who produced it was not questioned about it and so this allegation does not deserve to be considered. 3. Ex.P-8 is a Kabuliyat dated 27-6-1961 executed by Narayan Dutta. With regard to Ex.P-6 it was suggested on behalf of the appellants that there was some interpolation. Ratanlal (P.W.1) who produced it was not questioned about it and so this allegation does not deserve to be considered. 3. Ex.P-8 is a Kabuliyat dated 27-6-1961 executed by Narayan Dutta. By this the land inclusive of the suit land was taken from the plaintiffs on Batiya. The defendants in paragraph 4 of their written-statement pleaded mistake on the part of Narayan Dutta and even alleged fraud against Ratanlal, the scriber of Ex.P-8, Ex.P-3 and Ex.P-4 are the entries relating to receipt of money as rent from the person who had a hut in the land claimed by the plaintiffs. These entries are in the hand of plaintiff's brothers and their deceased father. Ratanlal (P.W.1) has stated that the entry relating to Samvat 2000 is in the hand of plaintiff's deceased father Ramprased. These documents could not be said to be such which could be created by the plaintiffs to support their case. 4. The plaintiff in the instant case has examined witnesses to prove his possession over the suit land as an owner prior to its forcible taking over of possession by the defendants. Both the Courts below have found in favour of the plaintiffs. There is evidence and material in support of that finding. The plea of the defendants that the property belonged to them has rightly been negatived. The trial Court has dealt with the evidence more elaborately. The plaintiffs were in peaceful enjoyment of the property and the defendants forcibly took over possession of the suit land. Therefore, as against the defendants they were entitled to a decree for possession. AIR 1970 SC 833 and 1963 MPLJ SN 77 distinguished, AIR 1968 SC 1165 relied on. Appeal dismissed.