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2020 DIGILAW 496 (MP)

Ashok v. Ganga Vishan and Others

2020-05-01

VISHAL DHAGAT

body2020
JUDGMENT 1. Appellant Ashok was defendant No.3 before the Trial Court. Respondent Nos.1 & 2 have filed a civil suit before the Trial Court for partition of ancestral property and giving them possession over 1/6th share of the suit property with a prayer to restrain the defendant from interfering in the suit land. 2. It was averred by the plaintiffs that the property in question belonged to their father Panna Lal. There is no partition of ancestral land. Defendant Nos.1 to 3, being real brothers, are in possession over the land in question. Defendant Nos.4 & 5 are their real sisters and they have been given their share at the time of their marriage. 3. Appellant/defendant No.3 stated that the lands bearing Khasra Nos.39/5 & 39/6 were purchased by the appellant vide registered sale deeds dated 2.6.2008 and 6.6.2008. The said documents have been filed on record as Exhibits D/1 and D/2. Appellant has averred that the land bearing Khasra No.125/3, 108/1, 108/9 is given by Pannalal to him by way of Will. The said land was self-acquired property of Pannalal but he has failed to file any Will before the Trial Court. 4. Learned Trial Court considering the documents on record and the deposition of witnesses held that the land bearing Khasra Nos.108/1, 148/1, 150/3, 150/4 is ancestral property of the plaintiff as well as defendants and each of them is entitled to 1/6th share in said suit property. It was also held that the appellant/defendant No.3 has failed to prove that the land bearing Khasra Nos.125/3, 108/1, 108/9 is ancestral property and no evidence has been produced by appellant/defendant No.3 regarding the said property. 5. Learned Trial Court has passed the decree of partition between plaintiffs and defendants holding therein that each of them is having 1/7th share upon the land bearing Khasra No.148/1 Rakba 1.214 hectare, Khasra No.150/4 Rakba 0.838 hectare, Khasra No.150/3 Rakba 0.838 hectare of Village Saktapur and the land bearing Khasra No.108/8 Rakba No. 0.509 hectare of Village Mandla. 6. The Judgment and decree passed by the Trial Court dated 16.8.2017 has been challenged by respondent No.3 Ram Chander in Regular Civil Appeal No.7A/2017 before the 2nd Additional District Judge, Harda. Learned 1st Appellate Court vide its judgment dated 30.6.2018 has observed that the land in question will be demarcated by the Collector, Harda and separate posession will be given to the plaintiffs. 7. Learned 1st Appellate Court vide its judgment dated 30.6.2018 has observed that the land in question will be demarcated by the Collector, Harda and separate posession will be given to the plaintiffs. 7. Appellant Ashok in the present second appeal was defendant No.3 before the Trial Court. Ram Chander and Ashok had preferred appeals before the 1st Appellate Court, which was decided by a common judgment & decree dated 30.6.2018. The said judgment and decree is under challenge before this Court on following substantial questions of law :-- 1.Whether the Courts below have committed an error of law in holding that the lands situated in village Mandla and village Saktapur were ancestral lands and the plaintiffs and defendants had 1/7th share in the suit property? As regards the substantial question of law No.1, there is concurrent findings of fact that land bearing Khasra Nos.108/1 area 0.509 hectare, Khasra No.148/1 area 1.214 hectare, Khasra No.150/3 area 0.832 hectare, Khasra No.150/4 area 0.838 hectare is ancestral land and each of them is entitled to 1/7th share in the suit property. 2. Whether the Courts below have committed an error of law in holding Khasra Nos.108/1, 148/1, 150/3, 150/4 as joint family property? As regard the substantial question of law No. 2, the Courts below have rightly considered the aforesaid Khasra numbers to be joint family property. Regarding this issue also there is concurrent finding of fact by the Courts below and, therefore, no interference is required. 3. Whether suit filed by plaintiff was time-barred? As regard the substantial question of law No.3, the appellant has not made any pleading of facts and grounds that the suit is barred by time. In absence of facts and grounds taken, no proposed substantial question of law arises in this appeal. 8. In view of aforesaid discussion I am of opinion that no substantial questions of law arises in this second appeal and, therefore, the same is dismissed.