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2013 DIGILAW 524 (MP)

Mahesh Kumar v. Himmat Singh

2013-04-16

R.S.JHA

body2013
Judgment R.S. Jha, J. 1. The appellants/defendants have filed this appeal being aggrieved by the judgment and decree dated 3-7-2004 passed by the 5th Additional District Judge, Bhopal, in R.C.A. No. 11-A/2004, confirming and affirming the judgment and decree dated 3-7-2003 passed by the First Additional Civil Judge, Bhopal, in C.S. No. 94-A/2002. The brief facts leading to the filing of this appeal are that the respondents/plaintiffs had filed a suit for declaration of title and permanent injunction in respect of Khasra No. 184, area 1.16 acres of village Pipalner, Tahsil Huzur, District Bhopal against the appellants/defendants alleging that the property belong to them but had wrongly been taken in possession by the appellants/defendants. The suit was opposed by the appellants/defendants on the ground that they had purchased the property in question by a sale deed executed in the year 1982 by Khemchand in favour of the defendants and, therefore, they were in legal possession of the property. 2. Both the Courts below have decreed the suit filed by the respondents/plaintiffs to the extent of half portion of Khasra No. 184 by recording a finding to the effect that the property was held jointly by Khemchand and Ramlal i.e. the uncle and father of the respondents, respectively, and, therefore, the respondents/plaintiffs were entitled to a declaration only in respect of half of the property. 3. The learned senior counsel appearing for the appellant/defendants submits that the Courts below have totally misconstrued the relief sought for by the respondents/plaintiffs inasmuch as the plaintiffs have nowhere sought a declaration that the sale deed in favour of the appellants/defendants is null and void. She further submits that the Courts below have in fact set up a new case of the property being joint in favour of the respondents/plaintiffs in spite of the fact that there was no pleading or proof in this regard by them. She further submits that the Courts below have in fact set up a new case of the property being joint in favour of the respondents/plaintiffs in spite of the fact that there was no pleading or proof in this regard by them. It is submitted that in view of the aforesaid the findings recorded by the Courts below are perverse and beyond the powers and authority of the Courts below, by relying upon the decisions rendered in the cases of Dattatraya v. Rangnath Gopalrao Kawathekar (by LRs.) and others, 1972 MPLJ (S.C.) 336 : AIR 1971 SC 2548 , State of H.P. v. Keshav Ram and others, AIR 1997 SC 2181 , Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others, AIR 2008 SC 901 , Bachhaj Nahar v. Nilima Mandal and others, AIR 2009 SC 1103 , D.R. Rathna Murthy v. Ramappa, 2011(2) MPLJ 507 and Vishwanath v. Sarla Vishwanath Agrawal, 2012(4) MPLJ 265. 4. I have heard the learned counsel appearing for the parties at length and perused the record. 5. From a perusal of the record as well as the judgment and decree of the trial Court and Appellate Court it is clear that the property in question initially belonged to Rewaram, the grand father of the respondent/plaintiffs. It is stated that Rewaram had three sons, Ramlal, Harlal and Khemchand among whom 24 acres of the land belonging to Rewaram was divided by a partition. The suit was filed by the respondent/plaintiffs by asserting that Khasra No. 184 area 1.16 acres fell in their share and, therefore, they be declared owners of the said land. 6. It is also apparent that the suit was opposed by the appellants/defendants by alleging that the land in question fell in the share of Khemchand and was purchased by them from Khemchand in the year 1982. From a perusal of the record it is clear that the aforesaid assertion was made by the appellants by filing a copy of the document Ex. D-9 relating to partition. It is further clear that both the Courts below, on going through the aforesaid document, Ex. D-9, filed by the appellants have found that Khasra No. 184 was not included in the partition proceedings. This finding has been recorded by the trial Courts in paragraph 14 of the judgment and has been affirmed by the Appellate Court. It is further clear that both the Courts below, on going through the aforesaid document, Ex. D-9, filed by the appellants have found that Khasra No. 184 was not included in the partition proceedings. This finding has been recorded by the trial Courts in paragraph 14 of the judgment and has been affirmed by the Appellate Court. The fact that Khasra No. 184 was not included in the partition proceedings is also undisputed before this Court. 7. On the basis of the aforesaid facts the Courts below have recorded a finding to the effect that the land in dispute, namely, Khasra No. 184, area 1.16 acres continued to remain in the joint ownership of the respondents/plaintiffs and Khemchand and therefore the respondent/plaintiffs had right and title to the extent of half share in Khasra No. 184 area 1.16 acres. On the basis of the aforesaid finding both the Courts below have decreed the suit in favour of the respondent/plaintiffs to the extent of half share in Khasra No. 184, area 1.16 acres, situated in village Pipalner, Tahsil Huzur, District Bhopal. 8. Even after hearing the learned senior counsel appearing for the appellant/defendants and perusal of the record it is clear that the land in question i.e. Khasra No. 184, area 1.16 acres situated in village Pipalner, Tahsil Huzur, District Bhopal initially belonged to Rewaram, that it was not included in the partition proceedings Ex. D-9 and, therefore, the right of the respondents/plaintiffs in Khasra No. 184, area 1.16 acres to the extent of half share therein is undisputed and, therefore, in my considered opinion in view of the provisions of Order "VIII, Rule 7 and Order XVI (sic : XLI), Rule 33 of the Code of Civil Procedure the Courts below have rightly decreed the suit filed by the respondents/plaintiffs to the extent of half share in Khasra No. 184, area 1.16 acres. 9. In view of the facts and circumstances of the present case, I am also of the considered opinion that the aforesaid judgments cited by the learned senior counsel appearing for the appellants/defendants are of no help to the appellants/defendants on account of the factual aspects of the present case which are totally different. 10. 9. In view of the facts and circumstances of the present case, I am also of the considered opinion that the aforesaid judgments cited by the learned senior counsel appearing for the appellants/defendants are of no help to the appellants/defendants on account of the factual aspects of the present case which are totally different. 10. From a perusal of the impugned judgment and decrees it is further clear that they are based on proper appreciation of the oral and documentary evidence on record and do not suffer from any perversity or manifest illegality warranting interference by this Court as no substantial question of law arises for adjudication. In view of the aforesaid, the appeal filed by the appellants/defendants, being meritless, is accordingly dismissed.