Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1526 (MP)

Falmat Bai v. Lalsaya

2013-12-05

K.K.TRIVEDI

body2013
ORDER 1. Heard on the question of admission. 2. This second appeal under section 100 of Code of Civil Procedure, by the plaintiffs, is directed against the judgment and decree dated 28.9.2000, passed n Civil Appeal No.16A/2000 by the Addl. District Judge, Dindori, reversing the judgment and decree dated 7.2.2000, granted in Civil Suit No.287A/94 by the Civil Judge Class-I, Dindori. 3. It is contended by learned counsel for the appellants that the trial Court after evaluating the evidence available on record, reached to the conclusion that the appellants were also the co-parceners, share holder in the joint Hindu family property belonging to one Panku. The appellant No.1 being the daughter of said Panku was entitled to 1/3 share in the property. Since the sale deed was executed by one of the co-parcener i.e. the original defendant No.1 Bahadur, son of Panku in favour of other respondents without there being any distribution of the share amongst the co-parceners, such sale deeds were bad in law. Such a claim made by the appellants was contested by the respondents by filing a written statement and the claim as made was denied. The trial Court after faming of the issues recorded the evidence and came to the conclusion that the appellants being member of joint Hindu family, were entitled to a share and, therefore, a judgment and decree was passed in favour of the appellants holding that the appellants were the title holder of 12.97 acres land and the sale deed so executed by the original defendant Bahadur son of Panku in respect of the respondent original defendants No.2 to 6 were null and void, and were not binding on the appellants. 4. Feeling aggrieved by the judgment and decree of the trial Court, appeal was preferred before the Additional District Judge by the respondents/defendants contending that such findings were illegally given. In fact, appellants were not entitled to any share in the property left behind by Panku as according to the law, prevalent at the time of death of Panku, no share could be given to a daughter. In fact, appellants were not entitled to any share in the property left behind by Panku as according to the law, prevalent at the time of death of Panku, no share could be given to a daughter. The crucial point, the date of death of the original holder of the land was proved, but since findings were recorded in this respect, without there being any conclusive proof of the fact that the appellants were governed by a customary law by ‘Gond’ community of the decree could not be granted in favour of the present appellants. 5. The learned lower appellate Court after examining the law and the statements of witnesses came to the conclusion that the learned Civil Court committed an error in grating the decree in favour of the appellants/plaintiffs. Accordingly, the appeal was allowed and the judgment and decree of the Civil Court was set aside. 6. Learned counsel for the appellants, vehemently, contended that this particular issue was not properly examined by the lower appellate Court, inasmuch as, when a finding was recorded after marshalling the evidence available on record with respect to the entitlement of the appellants over the suit property, the said finding was not required to be reversed. Even otherwise, as is contended by learned counsel for appellants, the appellants would be entitled to some share in the property of their father. 7. Such contentions of learned counsel for appellants are totally misconceived. The reasonings are seen. The learned lower appellate Court has examined on what date the original holder has died. After examining these facts, it was recorded that there was no evidence available regarding the exact date of death of the father of the appellant No.1. On the other hand, the statements of witnesses indicate that the land in suit was said to be partitioned between the family members of Panku during his life time itself. No evidence to establish such a fact was produced. It was again seen by the lower appellate Court that as per the statements of the witnesses of the appellants themselves, it was found that Panku has not given any share to his daughters. Only son of the Panku has inherited the entire property. No evidence to establish such a fact was produced. It was again seen by the lower appellate Court that as per the statements of the witnesses of the appellants themselves, it was found that Panku has not given any share to his daughters. Only son of the Panku has inherited the entire property. The best persons to explain such a fact were not examined by the plaintiffs and, therefore, it was held that such a claim made by the appellants in their plaint itself was not proved and, therefore, no decree of declaration of their title over the land in suit could be granted nor any decree declaring the sale deed executed by said Bahadur the original defendant No.1, could be said to be bad in law. With these findings, the lower appellate Court has allowed the appeal filed by the respondents/ defendants and has set aside the judgment and decree of the Civil Court. 8. After examining such findings, with the help of the evidence available on record, no error is found in such consideration by the lower Appellate Court. The learned lower appellate Court has not only properly appreciated the evidence, but has also looked into the law which was applicable in the present case. This being so, the judgment and decree of the lower appellate Court need not be interfered with. 9. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.