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2013 Supreme(MP) 119
¼mPp U;k;ky;½ o (HIGH COURT)
U;k- ;w-lh- ekgs’ojh
U.C. Maheshwari, J.
izHkwn;ky rFkk ,d vU; fo- Jherh ckjh ckbZ rFkk ,d vU;
Prabhudayal and another v. Smt. Bari Bai and another
f}rh; vihy Øekad 337 lu~ 2012 ¼Xokfy;j½( vij ftyk U;k;k/kh’k] nfr;k }kjk vihy Øekad 16&,@2011 esa ikfjr fu.kZ; fnukad 20-6-2012 ds fo#)( fu.khZr fnukad 28-2-2013A
Second Appeal No. 337 of 2012 (Gwalior); against judgment dated 20.6.2012 passed in Civil Appeal No. 16-A/2011 by Additional District Judge, Datia; Decided on 28.2.2013.
losZ’k ‘kekZ vihykFkhZ dh vksj ls( ,e-,y- caly izR;FkhZ Øekad 1 dh vksj ls( vkj-ih- jkBh] ljdkjh vf/koäk izR;FkhZ Øekad 2 dh vksj lsA
Sarvesh Sharma for appellants; M.L. Bansal for respondent No. 1; R.P. Rathi, Government Advocate for respondent No. 2.
Headnote:¼1½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 109 rFkk 110 & ukekarj.k fu;e & fu- 32 & ukekarj.k & dh gd~nkjh & la;qä [kkrk & ,d la;qä [kkrsnkj ds dsoy fdlh dkxt ij gLrk{kj & varj.k ds izys[ku ds fcuk tSlk fd fof/k ds varxZr fofgr gS & vU; la;qä [kkrsnkj dk vkuU; HkwfeLokeh ds :i esa ukekarj.k fd;k x;k & ,slh ukekarj.k dk;Zokfg;ksa ij & la;qä [kkrsnkj dks ftlus dkxt ij gLrk{kj fd, gSa mls Hkwfe ds vius vf/kdkj vkSj miHkksx ls oafpr ugha fd;k tk ldrkA ¼iSjk 8 rFkk 9
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 178 & O;kfIr & lg&HkwfeLokfeksa ds chp esa foHkktu fd;k tk ldrk gS & ysfdu varj.k ds fdlh izys[ku rFkk leqfpr dk;Zokfg;ksa ds fcuk & dsoy [kljk rFkk [krkSauh esa dqN izfof"V;ksa ds vk/kkj ij & ,d lg&HkwfeLokeh dk uke foyksfir ugha fd;k tk ldrkA ¼iSjk 9
¼3½ flfoy ÁfØ;k lafgrk] 1908 & /kkjk 100 & O;kfIr & dCts ds iz'u ij fupys U;k;ky;ksa ds ,d gh fu"d"kZ & lk{; ij vk/kkfjr & rF; dk fu"d"kZ gksus ls & gLr{ksi ugha fd;k tk ldrkA , vkb vkj 1981 ,l lh 1183 vuqlfjrA ¼iSjk 11
¼4½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 38 & 'kk'or O;kns'k & dc iznku fd;k tk ldrk gS & lgnkf;dh laifŸk & uSfR;d izfØ;k esa & lg&Lokeh ds fo#) fu"ks/kkKk dh fMØh iznku ugha dh tkrh gS & fdarq ok/;dkjh ifjfLFkr;ksa esa & lgLokeh ds fo#) 'kk'or O;kns'k iznku djus ds fy, fof/k ds v/khu dksbZ otZu ugha gSA ¼iSjk 10
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110 -- mutation Rules -- R. 32 -- mutation -- entitlement of -- joint holdings -- merely signature of one joint holder on some paper -- without any documentation of transfer as prescribed under law -- mutation of other joint holder made as exclusive Bhumiswami -- on such mutation proceedings -- joint holder who signed the paper cannot be deprived of their right and enjoyment of land. [Paras 8 and 9
(2) Land Revenue Code, 1959 (M.P.) -- S. 178 -- scope -- partition can be made between Co-Bhumiswami -- but without any documentation of transfer and proper proceedings -- merely on basis of some entries in khasra and khatoni -- name of one Co-Bhumiswami cannot be deleted. [Para 9
(3) Civil P.C., 1908 -- S. 100 -- scope -- concurrent findings of Courts below on question of possession -- based on evidence -- being findings of fact -- cannot be interfered. AIR 1981 SC 1183 followed. [Para 11
(4) Specific Relief Act, 1963 -- S. 38 -- perpetual injunction -- when can be granted -- coparcenary property -- in routine course -- decree of injunction is not granted against co-owner -- but in compelling circumstances -- no bar under the law for granting perpetual injunction against coparcener. [Para 10
1. The appellants/defendants/tenants have filed this appeal under section 100 of the CPC being aggrieved by the judgment dated 20.6.2012 passed by Addl. Judge to the Court of First ADJ, Datia in Civil Regular Appeal No. 16A/11, affirming the judgment and decree dated 8.11.2011 passed by the Civil Judge Class-I, Datia in COS No. 12A/11 whereby the suit of respondent No. 1 filed for declaration and perpetual injunction against the appellants with respect of the half of the agricultural land described in the plaint has been decreed.
2. The facts giving rise to this appeal in short are that the disputed land was initially recorded in the name of husband of respondent No. 1, namely, Gyandas, Subsequent to his death, the same was mutated in the name of respondent No. 1 in the revenue record vide order of Tahsildar dated 15.12.2008. Thereafter, the appellants under some conspiracy with the revenue officials had obtained the signature of respondent No. 1 on some blank paper and by preparing some documents on the same, they got mutated their name on the land of respondent No. 1 in the record of rights. In this regard, no intimation was given to respondent No. 1 by the revenue Courts. Even the opportunity of hearing was also not extended. It is also stated that on the basis of forged and fabricated papers, some proceedings of partition was carried-out. The same was known to respondent No. 1 in the year 2010 when she went to the land for cultivation where the appellants tried to restrain her to carry-out such agricultural activities saying that she does not have any share in the land then on verification she came to know about the aforesaid fraud of the appellants, on which, she filed an application for review of the order of Tahsildar. The same was dismissed. Such order was challenged in the Court of Collector, on which, by allowing such proceedings in part, the case was remitted back to the Tahsidlar, Bhander for re-consideration. Thereafter, again such review application was dismissed and, in such premises, when the appellants were trying to interfere in the possession and title of respondent No. 1 then the impugned suit was filed by her for declaration and perpetual injunction till the extent of her half share.
3. In the written statement of the appellants, by denying the title and possession of respondent No. 1 over the property, it is stated that it being their exclusive property, they are in possession and cultivating the same since long. The respondent No. 1 was never remained the Bhumi Swami of the same. As such, in partition, the respondent No. 1 herself had given such land to the appellants and now she is bound by the principle of estopple and could not challenge such partition. It is also stated that the appellants served Gyandas because he was residing with them and in life-time, he shown his wish to give the land to the appellants and pursuant to that the aforesaid partition was carried out at the instance of respondent No. 1 in which the entire land was recorded in the name of the appellants. Thereafter, by making the false and fabricated story under the pressure of Haridas, the brother of respondent No. 1 she has filed the present suit. It is also stated the no cause of action is available to the respondent No.1 to file the suit and specially after dismissal of the review petition by the Tahsildar, there is no scope to pass the decree in the matter. On account of long possession of the appellant, the suit of the respondent is also barred by time. The same being not filed on proper valuation and Court fees, deserves to be dismissed. In addition to it, it is stated that appellants being the legal representatives of Gyandas of class II of the schedule of Hindu Succession Act. Besides this, some other technical objections with respect of section 80 and non-jointing the Tahsildar as necessary parties in the suit are also taken. In such premises, the prayer for dismissal of the suit was made.
4. On bahalf of respondent No. 2/
