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2017 DIGILAW 380 (MP)

Angad Sahu v. State of M. P.

2017-03-17

A.K.JOSHI

body2017
ORDER : The appellants/original defendants No. 1, 2, 3 and 10 have filed this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 30-6-2014 passed by the Second Additional District Judge, Umaria in regular Civil Appeal No. 18-A/2014 affirming the judgment and decree dated 30-6-2012 passed by the First Civil Judge, Class-I, Umaria in Civil Suit No. 9-A/2009, whereby the suit filed by present respondent No. 2 Shobhelal/plaintiff was partially decreed in relation to declaring suit lands except the land bearing Survey No. 460/02 of village Pinora, Tahsil Bandavgarh, of joint ownership of plaintiff and original defendants No. 1 to 10 and the mutation order dated 22-12-1991 and another revenue order dated 29-3-2003 to be illegal and void. 2. Plaintiff/present respondent No. 2 Shobhelal filed plaint on 2-2-2009 before the trial Court on pleadings that the agricultural lands bearing Survey Nos. 145, 256, 421, 422, 431 and 460/02 of village Pinora of Tahsil Bandavgarh were of joint-ownership of two brothers Paramdas and Rohni Prasad. Plaintiff Shobhelal and original defendants No. 1 to 6 and No. 10 Duijee Bai were LRs of Paramdas, whereas original defendants No. 7 to 9 are LRs of Rohni Prasad and this suit lands are possessed by above-mentioned plaintiff and defendants, but original defendant No. 1 Angad Sahu and No. 2 Daddu Sahu illegally got their names mutated on 22-12-1991 in mutation register regarding lands bearing Survey Nos. 145, 431 and 421. Thereafter, above-mentioned original defendants No. 1 and 2, on the basis of mutual partition in a relating revenue case, got their mutation on the lands bearing Survey Nos. 256/1, 422/1 and 421/1 illegally, whereas the suit lands belonged jointly by Paramdas and Rohni Prasad and suit lands were not divided between Paramdas and Rohni Prasad. Abovementioned defendants got their mutation secretly without any legal rights. Thus, it was prayed that the disputed lands be declared of joint-ownership of original plaintiff Shobhelal and original defendants No. 1 to 10 and the order dated 22-12-1991 recorded in mutation register and the order passed by the Nayab-Tahsildar Karkeli of District Umaria dated 29-3-2003 passed in relating revenue case be declared void and illegal against the interest of plaintiff and relating defendants be restrained from alienating the suit lands by any mode. No any relief was claimed against the original defendant No. 11 State of M.P. 3. No any relief was claimed against the original defendant No. 11 State of M.P. 3. Original defendants No. 1, 2, 3 and 10 pleaded in their joint written statement filed before the trial Court that the ancestral agricultural lands were divided between Rohni Prasad and Paramdas about 60 years ago before births of plaintiff and defendants and Rohni Prasad and Paramdas each was possessing the agricultural lands fallen in his share, but their joint names remained recorded in revenue records. Ancestral lands were bearing Survey Nos. 145, 431 and 421. Thereafter, Rohni Prasad sold his share in agricultural lands to his brother Paramdas. Thereafter, according to family settlement, Paramdas gave some lands in share of his two sons original defendants No. 1 Angad and No. 2 Daddu and got their mutation in revenue records. The plaintiff Shobhelal also in the year 1979-80 received his share in lands from his father Paramdas and started living separately from the joint family of his father and other brothers. Paramdas had partitioned his ancestral and self-acquired property between his five sons original defendants No. 1 to 5 in his lifetime. Paramdas had also purchased the agricultural lands bearing Survey No. 22 of village Mohgawan in the names of his two sons plaintiff Shobhelal and original defendant No. 1 Angad and plaintiff Shobhelal had sold the above-mentioned lands of village Mohgawan and thereafter has filed this suit for illegally capturing the lands of his other brothers. Plaintiff is not entitled for any relief. 4. Before trial Court, no any written statement was filed by original defendants No. 4 to 9 and No. 11 State of M.P. 5. Before trial Court plaintiffs Shobhelal (PW-1), Natthulal (PW-2), Ramfal (PW-3) and Munna (PW-4) were examined for the plaintiffs and for defendants Hareram (DW-1), Amarlal (DW-2), Laxman (DW-3) and Ram Shushil (DW-4) were examined. The trial Court recorded the findings in its judgment that the suit land bearing Survey No. 460/2 of village Pinora was not ancestral property, as it was purchased in the joint names of Angad and Ramnarayan Sahu from previous owner by registered sale-deed dated 1-2-1996, but except the above-mentioned land bearing Survey No. 460/2, other disputed lands bearing Survey Nos. The trial Court recorded the findings in its judgment that the suit land bearing Survey No. 460/2 of village Pinora was not ancestral property, as it was purchased in the joint names of Angad and Ramnarayan Sahu from previous owner by registered sale-deed dated 1-2-1996, but except the above-mentioned land bearing Survey No. 460/2, other disputed lands bearing Survey Nos. 145, 256, 421, 422 and 431 were ancestral and joint family properties of two real brothers Paramdas and Rohni Prasad and it was not proved that this lands were partitioned between Paramdas and Rohni Prasad and it was also not proved that after partition Rohni Prasad had sold of his share to his brother Paramdas, as no any registered sale-deed was proved and the son of Rohni Prasad-Natthulal (PW-2), who was original defendant No. 7, by his evidence supported the case of plaintiff and thus the plaintiffs suit was partially decreed as stated above, except the land bearing Survey No. 460/2. The regular appeal filed by the present appellants before the District Court also remained unsuccessful. Hence, this second appeal. 6. Learned counsel for the appellants vehemently contended that both of the lower Courts has not properly and legally appreciated the oral and documentary evidence filed by the parties and the First Appellate Court also erred in dismissing the interim applications filed by the present appellants under Order 41, Rule 27 of the Civil Procedure Code for taking additional documentary evidence on record. Learned counsel for the appellants on placing reliance on the case of Muzaffar Ali v. Dasaram, 2009 (3) M.P.L.J. 518 contended that this Court in pending second appeal should also consider the order of the Appellate Court by which the applications filed by the appellants before the First Appellate Court under Order 41, Rule 27 of the Civil Procedure Code were rejected. 7. It appears from the perusal of record of First Appellate Court that before it, two applications under Order 41, Rule 27 of the Civil Procedure Code were filed by the present appellants. By first application, a copy of the notice dated 25-8-2012 sent through the advocate by original defendant No. 1 Angad to plaintiff Shobhelal and his two other brothers and its reply dated 7-9-2012 sent by the registered post by the original plaintiff Shobhelal's counsel were prayed to be taken on record. By first application, a copy of the notice dated 25-8-2012 sent through the advocate by original defendant No. 1 Angad to plaintiff Shobhelal and his two other brothers and its reply dated 7-9-2012 sent by the registered post by the original plaintiff Shobhelal's counsel were prayed to be taken on record. It has been argued that in above-mentioned reply, it was admitted by the plaintiff Shobhelal that the lands bearing Survey No. 22 of village Mohgawan was given in share of the plaintiff Shobhelal by his father Paramdas in his lifetime. It was the case and evidence of the present appellants before the trial Court that Paramdas has purchased the lands bearing Survey No. 22 of village Mohgawan in the names of his two sons Shobhelal and Angad. It is clear that it was not the case of plaintiff that lands bearing Survey No. 22 of village Mohgawan was ancestral or joint family property of Paramdas and Rohni Prasad and the land bearing Survey No. 22 of Mohgawan was not actually a disputed land in the suit filed by Shobhelal. There is no any reference to other disputed lands in this notice. Thus, this notice sent by Angad and its reply sent by Shobhelal was not material in relation to the disputed lands of village Pinora. Thus, the First Appellate Court has not committed any error in rejecting this application. With second application filed under same provision, certified copies of the revenue records were filed and it was prayed that they be admitted as additional documentary evidence. But no any reason was mentioned in the application and affidavit that why this certified copies of the revenue records could not be filed before the trial Court, whereas the plaintiff has clearly challenged in his suit mutation entries and an order passed by the Nayab-Tahsildar concerned. Thus, it is clear that the order relating to dismissing the applications filed under Order 41, Rule 27 of the Civil Procedure Code by the First Appellate Court appears to be totally justified and legal. 8. Thus, it is clear that the order relating to dismissing the applications filed under Order 41, Rule 27 of the Civil Procedure Code by the First Appellate Court appears to be totally justified and legal. 8. It was the case of the present appellants that before births of sons of Paramdas and Rohni Prasad, there had been a partition about 60 years ago between two brothers Paramdas and Rohni Prasad and thereafter, Rohni Prasad has sold his share in disputed lands to his brother Paramdas, but it appears from the certified copies of the revenue records filed before the trial Court that except the land bearing Survey No. 460/2 of village Pinora all other disputed agricultural lands remained jointly recorded in the revenue record in the names of two brothers Paramdas and Rohni Prasad till November, 1991. No any registered sale-deed or any document was filed and proved by the present appellants before the trial Court in support of their pleadings that Rohni Prasad has sold his share in disputed lands except land bearing Survey No. 460/2 to his real brother Paramdas. From Exhibit P-8, it is clear that till November, 1991 the lands bearing Survey Nos. 145, 431, 421 and 256 were jointly recorded in names of two brothers Rohni Prasad and Paramdas. Thus, it was not proved that in ancestral properties, Rohni Prasad had sold his share to his real brother Paramdas. The son of Rohni Prasad, Natthulal (PW-2) by his evidence supported the case of plaintiff Shobhelal. Natthulal (PW-2) S/o Rohni Prasad supported the case of the plaintiff, thus it appears that the lower Courts have properly and legally appreciated the oral and documentary evidence available on record. 9. Present appellants also remained unsuccessful in proving that the relating mutation and partition order relating to revenue records were passed by the relating revenue authorities after noticing the LRs of Rohni Prasad. Thus, it appears that the lower Courts have not committed any error in appreciating the evidence and produced before the trial Court. It was proved from the registered sale-deed (Ex.D-2) dated 1-2-1996 that the land bearing Survey No. 460/2 area 2.90 acres was purchased by Angad Sahu and his another real brother Ramnarayan Sahu, thus the lower Courts rightly found that the disputed land bearing Survey No. 460/2 was not ancestral or joint family property of Paramdas and Rohni Prasad. It was proved from the registered sale-deed (Ex.D-2) dated 1-2-1996 that the land bearing Survey No. 460/2 area 2.90 acres was purchased by Angad Sahu and his another real brother Ramnarayan Sahu, thus the lower Courts rightly found that the disputed land bearing Survey No. 460/2 was not ancestral or joint family property of Paramdas and Rohni Prasad. Thus, it appears that the lower Courts have not committed any illegality in partially decreeing the plaintiff Shobhelal's suit in relation to other disputed agricultural land except the land bearing Survey No. 460/2 of village Pinora. There appears no any perversity in any finding recorded by the Courts below. 10. I have not found any substance on which the impugned judgment of the Courts below could be said to be contrary to any law procedure. Consequently, I have not found any substance or the circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to costs.