Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 857 (MP)

BALAK RAM v. MANSHA RAM

2009-07-24

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant/defendant No. 2, being aggrieved by the judgment and decree dated 06. 03. 2007 passed in Civil Appeal No. 74-A/06 passed by III Addl. District judge (Fast Track Court), District Seoni, whereby the judgment and decree dated 19. 12. 2005 passed in Civil Suit No. 59-A/05 by the Civil Judge, Class II, Seoni decreeing the entire suit of the respondent No. 5 of partition, has been modified by excluding the land bearing Survey No. 148/2 area 3. 00 hectare recorded in the name of respondent No. 2 as Bhoomi Swami from the suit property, has filed this appeal. ( 2. ) THE facts giving rise to this appeal in short are that plaintiff/respondent no. 5 filed the suit for declaration, partition and separate possession against respondents No. 1 to 4 and 6 to 7 with respect of the ancestral agricultural land bearing Survey Nos. 36,80,150,151,153 and 148/2 total area 6. 16 hectare, situated at village Sukri, Tehsil Seoni. As per averments of the plaint, plaintiff/respondent no. 5 is the son of respondent No. 1 (defendant No. 1) Mansha Ram from his second wife Chhoti Bai respondent No. 6 (defendant No. 3), while the appellant/defendant no. 2 Balak Ram is the son of respondent No. 1 from his first wife Mohendra Bai (since divorced) and Ku. Banwati Bai and Ku. Rajkumari Bai therespondent No. 3 and 4 (defendant No. 5 and6) are daughters of respondent No. 1 from his mistress naniya Bai the respondent No. 2 (defendant No. 4 ). As per further averments of the plaint, the aforesaid Survey No. 148/2, area 3. 00 hectare was purchased out of the income earned from the aforesaid remaining ancestral land and, in such premises, such land also belongs to Hindu undivided family. It was also stated that after three months from the birth of plaintiff/respondent No. 5, respondent No. 1 ousted his mother Smt Chhoti Bai, respondent No. 6/defendant No. 3, in whose lap plaintiff/respondent No. 5 was surviving. After two years from such incident, respondent No. 1 brought and kept Nanhiya Bai, respondent No. 2/defendant No. 4, with him as his mistress without solemnizing the marriage with her. As alleged, she was already married with a person of her community of village Sillor who is still alive from whom she has not taken any divorce. After two years from such incident, respondent No. 1 brought and kept Nanhiya Bai, respondent No. 2/defendant No. 4, with him as his mistress without solemnizing the marriage with her. As alleged, she was already married with a person of her community of village Sillor who is still alive from whom she has not taken any divorce. As per further averments, the disputed property being ancestral, the plaintiff/respondent No. 5, his step brother appellant/defendant No. 2 and his father respondent No. 1, are having equal title and right in such property as co-parcenor of the family but with intention to deprive plaintiff/respondent No. 5 from his share in the aforesaid property, under some conspiracy with the revenue officers, the part of ancestral land bearing s. No. 148/2 area 3. 00 hectare, was got mutated either in the name of respondent no. 2/defendant No. 4 or in the name of respondent No. 3 and 4/defendant No. 5 and 6, as mentioned in para-7 of the plaint. As such, these respondents had never acquired any right or title in such property. Mere, on some mutation in the revenue record, the right of the plaintiff/respondent No. 5, is not washed away. Even after attaining maturity, he was not given his share of the profit from the property. In such premises, the aforesaid suit for his 1/3rd share of the property was filed by the plaintiff/respondent No. 5. ( 3. ) IN the written statement of respondents No. 1 to 4 (defendant No. 1,4,5 and 6), the averments with respect of the family description was admitted but the other averments of the plaint are denied. As per further averment they are residing separately since long and the disputed land exclusively belongs to respondent no. 1. The mother of plaintiff/respondent No. 5 left respondent No. 1 long back and since then she is residing with her parents family. Inspite making efforts she did not return and also initiated the proceedings for maintenance. In such circumstance, the respondent No. 1 got married with respondent No. 2/defendant no. 4 in accordance with the custom of the community and since then respondent no. 1to 4 (defendant No. 1 and 4 to 6) are residing together in the family. Respondent No. 6/defendant No. 3 the mother of the plaintiff/respondent No. 5 is being paid the maintenance by respondent No. 1. The land bearing Survey no. 148/2 area 3. 4 in accordance with the custom of the community and since then respondent no. 1to 4 (defendant No. 1 and 4 to 6) are residing together in the family. Respondent No. 6/defendant No. 3 the mother of the plaintiff/respondent No. 5 is being paid the maintenance by respondent No. 1. The land bearing Survey no. 148/2 area 3. 00 hectare is exclusive property of Nanhiya Bai, respondent No. 2/ defendant No. 4, and she being in possession is enjoying the same. The plaintiff/respondent No. 5 in the conspiracy with the appellant/defendant No. 2 and respondent No. 6/defendant No. 3, by fabricating false document with respect of the partition, has filed the suit on false averments. He also stated that some revenue proceedings with respect of partition was held in the court of Tehsildar. Such proceedings is shown to be pending in appeal before the Sub Divisional Officer. In such premises, the prayer for dismissal of the suit is made. ( 4. ) IN the written statement of appellant/defendant No. 2, the averments of the plaint in para 1,2,3,4 and 5 are not disputed. In addition it is stated that respondent no. 1 got married with his mother Mohendra Bai, out of such wedlock he was born and being elder son of respondent No. 1 he is residing with him in the family. The proceedings initiated by respondent No. 5/plaintiff for partition are based on false averments. In that respect, on his proceedings, the Tehsil Court has given the finding in his favour. In such premises respondent No. 3 and 4 (defendant No. 5 and 6) did not have any right or title in the disputed land. With these averments, the prayer for dismissal of the suit is made and in alternative, on decreeing the suit for partition, his 1/3rd share of the property be given to him. ( 5. ) AFTER casting the issues and recording the evidence, on appreciation of the same, by declaring the aforesaid entire land to be ancestral joint hindu family property of the family comprising by the co-parcenors, plaintiff/respondent No. 5, respondent No. 1 and the appellant/defendant No. 2, each of them are held to be entitled for 1/3rd share by partition for which the parties are directed to approach the Collector under section 54 of the CPC, and accordingly, the suit was decreed by the trial court. Being dissatisfied with such judgment, respondent Nos. Being dissatisfied with such judgment, respondent Nos. 1 to 4 herein filed the appeal against the plaintiff/respondent No. 5, appellant/defendant no. 2 and respondent No. 6/defendant No. 3. On consideration and reappreciation of the evidence, the land bearing survey no. 148/2 area 3. 00 hectare was held to be the exclusive property of respondent No. 2 Nanhiya Bai on the basis of the sale deed dated 14. 7. 2000 (Ex. D/11), while the remaining part of the decree and findings of the trial court was affirmed. Against such modification in the decree by the appellate court, appellant/defendant No. 2 has come forward with this appeal. ( 6. ) SHRI S. D. Khan, learned appearing counsel of the appellant after taking me through the pleadings, evidence and the documents available on record said that the appellate court has committed grave error in excluding the land bearing s. No. 148/2 area 3. 00 hectare from the decree of the partition passed by the trial court by holding the same to be the exclusive property of respondent No. 2 on the basis of sale deed (Ex. D/11 ). In continuation, he said that although such land is recorded in the name of respondent No. 2 but the same was purchased by respondent No. 1 in the name of respondent No. 2 as ostensible owner through sale deed (Ex. D/11) from fund and income of the joint hindu family earned from the aforesaid other ancestral land and, in such premises, such land also belongs to the joint hindu family property. The same was rightly held by the trial court to be the subject matter of partition, but without appreciating the available evidence and contrary to the proceedings of the revenue court, the decree of the trial court has been modified under wrong premises. He further said that earlier, partition took place between the appellant and respondent No. 1 on 29. 8. 99, in which S. No. 148/2 was given to the appellant for which the sufficient evidence wasavailable on record but the same has not been properly considered by the courts below. He fairly conceded that respondent No. 2 Nanhi Bai was not party to such agreement. He also argued that long possession of the appellant on the aforesaid survey number was also not considered with proper approach. He fairly conceded that respondent No. 2 Nanhi Bai was not party to such agreement. He also argued that long possession of the appellant on the aforesaid survey number was also not considered with proper approach. In such premises, he prayed for admission of the appeal on the proposed substantial questions of law mentioned in the appeal memo. ( 7. ) HAVING heard the counsel at length, I have examined the record of both the courts below and also perused the impugned judgment. So far the relationship between the appellant, respondent No. 1 and respondent No. 5 is concerned, there is no dispute between the parties, hence such question does not require any further consideration at this stage. It appears that this appeal is preferred by the appellant only against the finding of the appellate court by which S. No. 148/2 area 3. 00 hectare, has been excluded from the subject matter of the suit property of partition. The appellant counsel in his argument challenged the sale-deed (Ex. D/11) by which in consideration of Rs. 1,95,000/-, the aforesaid land bearing S. No. 148/2 area 3. 00 hectare was purchased by Nanhiya Bai respondent No. 2 from its earlier bhumi Swami, namely Poti Ram S/o Badu, who executed the same with the consent of his other family members, namely Tulsi Ram, Dassau and Batar. Such sale deed has been duly proved on record. It appears that on the basis of such sale-deed, the name of respondent No. 2 was mutated in the revenue records. After going through the evidence available on record, I have not found any admissible and reliable evidence showing that the consideration of the aforesaid sale deed was given by respondent No. 1 out of the income or the fund of their joint hindu family. In the lack of such evidence, it could not be held by the appellate court that such property was purchased by respondent No. 1 out of the fund or income of their joint hindu family. Besides this, such finding of the appellate court appears to be based on appreciation of the evidence available on the record and the same does not appear to be contrary to record or law. It is settled proposition of law that re-appreciation of the evidence is not permissible under Section 100 of the CPC unless the same is perverse with the record. It is settled proposition of law that re-appreciation of the evidence is not permissible under Section 100 of the CPC unless the same is perverse with the record. In the case at hand, no such perversity is found. ( 8. ) SO far the document of partition, took place between respondent No. 1 and the appellant which was filed in the revenue court is concerned, the same is not binding against the respondent No. 2, as she was not the party of it. In such premises on the basis of such document no inference could be drawn by the appellate court contrary to the interest of respondent No. 2, hence on such ground also this appeal does not involve any question of law much less, the substantial question of law. ( 9. ) BESIDES the above, as per findings of both the courts below, based on evidence the respondent No. 2 Nanhiya Bai, is not held to be the member of the joint hindu family comprising by the appellant, respondent No. 1 and 5. Therefore, in view of the provision of Benami Transaction Prohibition Act,1988, such question is not open for correction at the stage of second appeal contrary to the aforesaid sale deed Ex. D/11 and to the interest and right of respondent No. 2. ( 10. ) IN the aforesaid premises the findings of the appellate court, being based on sound appreciation of evidence, does not give rise to any question of law much less, the substantial question of law requiring any consideration in this appeal. Therefore, this appeal being devoid of any merit, deserves to be and is, hereby dismissed at the motion hearing stage.