Nirmalabai vs Shankar Singh and Others

Hon''ble Shri N.K. Mody, J.—This judgment shall also govern the disposal of SA. No. 486/11 as in both the appeals the judgment under challenge is dated 28/07/11 passed by II ADJ, Khargone in Civil Appeal No. 8-A/11, whereby judgment dated 26/02/11 passed by Additional Civil Judge, Class-II, Khargone in Civil Suit No. 11-A/10, whereby suit filed by the respondent No. 1 was decreed, was maintained. Short facts of the case are that the respondent No. 1 filed a suit on 23/02/10 for declaration alleging that the respondent No. 1, respondent Nos. 2 & 3 Prakash and deceased Santosh, appellant and respondent Nos. 4 to 9 are the real brothers and sisters and are sons and daughters of deceased Mehtabsingh. In the suit it was alleged that the land bearing survey No. 17 measuring 18.30 acres is situated at village Jamshedpura, Tehsil & Distt. Khargone and land bearing survey No. 6 measuring 15.88 acres is situated at village Khedibujurg. It was alleged that both these lands were recorded in the name of respondent No. 1 in the revenue record. Apart from this respondent No. 1 was also having land bearing survey No. 22 measuring 1.11 acres, situated at village Khedibujurg, which has been sold out by the respondent No. 1. It was alleged that the suit land came into the share of respondent No. 1 in a partition, which took place in the year 1981. It was alleged that since then respondent No. 1 is in occupation of the land and the name of respondent No. 1 is also recorded in the revenue record. It was alleged that the respondent Nos. 2 & 3 are also in occupation of the land, which fall into their share in the partition. It was alleged that Mehtabsingh father of appellant and respondents executed a registered will on 12/05/03 wherein there is a recital about the partition, which took place in the year 1981. It was alleged that knowing it well that the suit land belongs to the respondent No. 1, respondent No. 2 is taking the action in the Office of Tehsildar for getting the suit land mutated in his name. It was alleged that the order was passed by the Tehsildar, against which an appeal was filed by the respondent No. 1, which is pending before the Revenue Commissioner. It was alleged that since there was a dispute regarding title, therefore, the Revenue Authority directed to get the rights declared from the Civil Court, hence this suit is filed with a prayer to declare the respondent No. 1 as owner of the suit property.

The suit was contested by the respondent Nos. 2 & 3 wherein the fact of partition and also execution of will was not disputed. But by the rest of the respondents and the appellant the suit was contested alleging that no partition has taken place in the year 1981 and also no will was executed by the deceased Mehtabsingh. It was alleged that the suit land was given to the respondent No. 1 by the deceased Mehtabsingh only for cultivation. It was alleged that the respondent No. 1 filed a suit against the respondent No. 2 and one Dhanibai, which was numbered as Civil Suit No. 110-A/97. In appeal the suit was dismissed, holding that no partition has taken place and also no will was executed by the deceased Mehtabsingh. It was alleged that the suit filed by the respondent No. 1 is barred by time. It was alleged that no cause of action has arose to the respondent No. 1. It was alleged that each of the respondents and appellant is having 1/10th share in the suit property and are entitled for partition. It was prayed that the suit be dismissed.

On the basis of pleadings of parties, learned trial Court framed the issues, recorded the evidence and decreed the suit filed by respondent No. 1, against which an appeal was filed by the appellant and respondent Nos. 4 to 9, which was dismissed, hence these appeals.

Learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserve to be set aside. It is submitted that in the facts and circumstances of the case, there was no justification on the part of learned Courts below in decreeing the suit filed by respondent No. 1. It is submitted that the learned Courts below has relied the theory of partition solely on the ground of Ex. P/10, which is said to be a will executed on 12/05/03, overlooking the fact that mere production of the will, execution of which is denied does not prove it and therefore, no inference from such document can be drawn. It is submitted that the learned Courts below completely overlooked the documents Ex. D/5, 7 & 16 to 18 and also misread. It is submityted that the learned Courts below committed error in not relying on the document Ex. D/12 on the basis that Prakash respondent No. 2 has not been examined. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment passed by the learned Courts below be set aside.

Learned counsel for the respondent No. 1 submits that after due appreciation of evidence both the Courts below decreed the suit filed by respondent No. 1. It is submitted that no substantial question of law is involved in the appeal, hence the same be dismissed.

From perusal of the record it is evident that to prove the case respondent No. 1 has filed the documents Ex. P/1 to Ex. P/17. Ex. P/1 to Ex. P/6 are the revenue record. Ex. P/1 is the revenue record for the year 2009-10, wherein name of the respondent No. 1 is recorded as Bhumiswami, Ex. P/3, 4 & 5 are the revenue records for the year 2006-07 to 2008-09, wherein name of Mehtabsingh was recorded as Bhumiswami and as per order of Tehsildar name of respondent No. 1 was recorded as Bhumiswami. Ex. P/7 is the statement of Mehtabsingh, which was recorded on 03/08/99 in Civil Suit No. 110-A/97 (Mehtabsingh Vs. Prakash). Ex. P/9 is the order dated 11/08/09 passed by Collector, Khargone upon the application filed by respondent Nos. 1 & 2 against the appellant, Ex. P/10 is the registered will executed by Mehtabsingh, Ex. P/12 are the order dated 07/09/09, 11/09/09, 29/12/09 & 07/01/10 passed by Tehsildar in the case filed by the appellant, Ex. P/12 to Ex. P/16 are the notice for demarcation, Ex. P/17 is the report submitted by the Revenue Inspector. Apart from this respondent No. 1 has examined himself as PW/1, Nanasingh PW/2, Ramesh PW/3 and Vijaysingh PW/4. Appellant has examined herself as DW/1,; Jitendrasingh DW/2 and Humabai DW/3. Appellant has also filed the documents Ex. D/1 to Ex. D/18. Ex. D/1 is the order dated 06/04/05 passed by Tehsildar, Ex. D/2 & Ex. D/3 are the revenue records for the year 2010-11 wherein name of respondent No. 1 is recorded as Bhumiswami, Ex. D/4 is the order dated 21/12/09 passed by Collector, Khargone in the revision filed by the appellant, Ex. D/5 is the judgment dated 28/03/02 passed by III ADJ, Khargone in Civil Suit No. 30-A/02 filed by Prakash respondent No. 2 and Dhanibai whereby appeal filed by the respondent No. 2 and Dhanibai was allowed and the judgment dated 12/11/99 passed in Civil Suit No. 110- A/97 was set aside, Ex. D/6 is the decree passed in the said case, Ex. D/ 7 is the copy of the statement of Santosh in Civil Suit No. 110-A/97, Ex. D/8 & 9 are the judgment dated 12/11/99 passed by Civil Judge, Class-I, Khargone in Civil Suit No. 110-A/97 filed by Mehtab and respondent No. 1. Ex. D/10 to Ex. D/14 are the copies of statement of Mehtabsingh, deceased Shankarsingh, Prakash, Chintabai and Parasramsingh. Ex. D/15 is the application filed by respondent No. 1 u/s 178 MPLRC on 21/05/04, Ex. D/16 is the reply submitted by respondent No. 2 in the said proceedings, Ex. D/17 is the Power of Attorney executed by Mehtabsingh, Ex. D/18 is the reply filed by Prakash and Dhanibai in Civil Suit No. 110-A/97.

From perusal of the record it is evident that the appellant is the daughter of deceased Mehtabsingh. In the written statement filed by the appellant in both the appeals, which was joint it is not disputed that the respondent No. 1 is in possession of the suit property. It is also stated in the written statement that the appellant in both the appeals have filed the counter claim, which be accepted. No counter claim has been filed by the appellant in both the appeals. Undisputedly respondent No. 2 and deceased Santosh whose legal representatives are respondent No. 3 are not disputing the alleged partition and also the alleged will executed by deceased Mehtabsingh. In the facts and circumstances of the case, this Court is of the view that the learned Courts below committed no error in decreeing the suit filed by the respondent No. 1. Since no substantial question of law is involved in the appeals, hence both the appeals filed by the appellant stands dismissed. However, it is made clear that if any suit for partition is filed by the appellants, then the same shall be decided by the learned trial Court in accordance with law without being prejudice by any observation made by the learned Courts below.

With the aforesaid, appeal stands dismissed. Copy of the judgment be placed in the record of SA. No. 486/11.