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2017 DIGILAW 961 (MP)

Lali Rawat v. Sunita

2017-09-04

ANAND PATHAK

body2017
JUDGMENT 1. Heard on admission. 2. The appeal under section 100 CPC at the instance of defendants has been preferred arising out of the judgment and decree dated 17.7.2017 passed by District Judge, Shivpuri in Civil Appeal No.100054-A/2015 confirming the judgment and decree dated 27.8.2015 passed by First Civil Judge Class-I, Shivpuri in Civil Suit No.4-A/2013. 3. Briefly stated facts of the case are that initially plaintiffs/respondents No.1, 2 and 3 have preferred a civil suit for declaration of title, partition and permanent injunction in respect of agricultural land bearing survey Nos.910, 914, 915/2, 918, 1341, 1650, 1651, 1663 and 1664 area 4.310 hectare situate in Village Singh Niwas, Tahsil and District Shivpuri against defendants No.2 and 3/appellants as well as defendants No.1 and 4/ respondents No.4 and 5. It is alleged that the land in question belongs to one late Babulal Rawat and plaintiffs are the legal heirs of Babulal (daughters) and defendant No.1 is the wife, defendant No.2 is daughter-in-law and defendant No.3 is the grandson of the Babulal and, therefore, each of them are shareholder of 1/5 share of the land in question. It is further alleged that after death of Babulal, defendant No.1 (wife) and son late Bhanu Rawat got their names mutated in the revenue records in respect of the suit land and after death of Bhanu Rawat, defendants No.2 and 3 (his wife and son) got their name mutated in the revenue record. According to learned counsel for the appellants, defendants were trying to alienate the suit property and since the suit land is undivided property, therefore, defendants have no right to alienate the suit land and, therefore, a suit was filed for declaration of 3/5 share, possession and partition of the suit property. He relied upon the judgment of the Hon'ble apex Court in the matter of Tej Narain and Another v. Shanti Swaroop Bohre and another [ 2005(1) MPLJ 442 ], as well as Gopilal through LRs. v. Jeetram and others [2005 RN 318 (HC)=2005(1) MPJR 586]. 4. He relied upon the judgment of the Hon'ble apex Court in the matter of Tej Narain and Another v. Shanti Swaroop Bohre and another [ 2005(1) MPLJ 442 ], as well as Gopilal through LRs. v. Jeetram and others [2005 RN 318 (HC)=2005(1) MPJR 586]. 4. Husband of appellant No.1 Bhanu Rawat died in year 2012 and mutation proceedings undertook at the instance of appellants in year 2012 itself therefore, cause of action has accrued to the respondents/plaintiffs in year 2012, therefore, if the suit has been filed by the plaintiff in year 2013 with the allegation that the present appellants are trying to sale the land in question then the same was well within limitation. Although plaintiffs could not prove issue No.2 in respect of allegation regarding disposing of the land in question but the said aspect coupled with the mutation in year 2012 has given them the cause of action to file the suit therefore, suit was within the limitation. 5. Despite service of summons, defendants No.1 and 4 did not appear in the trial Court and remained ex parte. Defendants No.2 and 3 appeared in the trial Court and filed written statement denying the allegations of the plaintiffs and contended that plaintiffs (daughters of late Babulal) are married and residing separately with their in-laws after the death of their father and, therefore, they have no legal right over the suit property. Names of defendant No.1 (wife) and son Bhanu Rawat were mutated in the revenue record in the knowledge of the plaintiffs and they did not object the same and now after a long period under the pressure and greed of their in-laws, plaintiffs have filed a suit for declaration, partition and possession of the suit property. 6. Trial Court framed issues in the matter and after taking into consideration the evidence led by the parties and arguments advanced by them decreed the suit in favour of the plaintiffs. Being aggrieved by the said judgment of the trial Court, appellants/defendants preferred a first appeal before the appellate Court, but met the same fate and, therefore, now appellants/defendants have reached to this Court under section 100 CPC. 7. Heard the learned counsel for the appellants and perused the record. 8. From perusal of the record, it appears that plaintiffs filed a suit for declaration, partition and permanent injunction in respect of the suit property. 7. Heard the learned counsel for the appellants and perused the record. 8. From perusal of the record, it appears that plaintiffs filed a suit for declaration, partition and permanent injunction in respect of the suit property. Evidence of PW1 Sunita Rawat and PW2 Kalpana Rawat (plaintiffs No.1 and 2) have been recorded wherein they have categorically stated that the suit property was undivided property and after the death of Babulal (father) plaintiffs are shareholders of 3/5 share in the suit property. No evidence has been adduced by the defendants to prove that the suit property is not the joint family property wherein plaintiffs failed to prove that defendants are trying to alienate the suit property. After the death of Babulal, defendants No.1 and Bhanu Rawat (son of Babulal) got their name mutated in the revenue records and it appears that since then Bhanu Rawat was cultivating the land in question which was not disputed by the plaintiffs in the life time of Bhanu Rawat and therefore, after the death of Bhanu Rawat name of defendants No.2 and 3 (wife and son of Bhanu Rawat) was mutated in the revenue records. 9. The judgment as relied upon by learned counsel for the appellants in the matter of Tej Narayan (supra), moves in different factual realm in a way that in the said case, defendants have perfected their title by way of adverse possession and the suit was treated to be barred by limitation. Here, the facts of the case are different because plaintiffs had the recurring and renewed cause of action in year 2012 after the mutation proceedings. Similarly, the judgment relied upon by the appellants in the matter of Gopilal (supra), does not help the appellants in any manner because in that case, defendants have taken defence regarding purchase of the suit land in year 1943, here the matter carried different facts. 10. Plaintiffs being the daughters of late Babulal are the share holders in the suit property and possibility expressed by the plaintiffs that defendants may alienate the suit property taking advantage of their name mutated in the revenue records cannot be denied and, therefore, considering the said aspect, the trial Court has rightly passed the judgment and decree which has been confirmed by the appellate Court. Plaintiffs/ respondents No.1, 2 and 3 have rightly been declared 3/5 shareholders of the suit property. Plaintiffs/ respondents No.1, 2 and 3 have rightly been declared 3/5 shareholders of the suit property. Therefore, no need for interference is made out in the present case. 11. Having perused the findings recorded by the Courts below, same appears to be based on findings of fact. In the opinion of this Court, the entire matrix of the matter revolves around facts only. Findings so recorded by the Courts below are based on proper appreciation of evidence on record. No substantial question of law much less question of law arises in this appeal warranting interference under section 100 CPC. Being devoid of merits, admission declined and appeal is hereby dismissed.