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2013 Supreme(MP) 616
2014 jk fu 123 o 2014 RN 123
¼mPp U;k;ky;½ o (HIGH COURT)
U;k- jksfgr vk;Z
Rohit Arya, J.
mek ckbZ ¼Jherh½ rFkk ,d vU; fo- xtjkt flag rFkk vU;
Uma Bai (Smt.) and another v. Gajraj Singh and others
f}rh; vihy Øekad 567 lu~ 2011 ¼Xokfy;j½( ftyk U;k;k/kh’k] fofn’kk }kjk flfoy vihy Øekad 59&,@2010 esa ikfjr fu.kZ; ,oa fMØh fnukad 15-9-2011 ds fo#)( fu.khZr fnukad 18-11-2013A
Second Appeal No. 567 of 2011 (Gwalior); against judgment and decree dated 15.9.2011 passed in Civil Appeal No.59-A/2010
by District Judge, Vidisha; Decided on 18.11.2013.
Mh- Mh- caly rFkk ,l- ,l- dq’kokg vihykFkhZx.k dh vksj ls( ,e- ds- tSu- izR;FkhZx.k dh vksj lsA
D. D. Bansal and S. S. Kushwaha for appellants;
M. K. Jain for respondents
Headnote: ¼1½ U;k;ky; Qhl vf/kfu;e] 1870 & /kkjk 7 (iv) ¼x½ rFkk 7 (iv) ¼?k½ & okn ewY;kadu vf/kfu;e] 1887 & /kkjk 8 & Lokeh rFkk dCtsnkj }kjk gd~ dh ?kks”k.kk rFkk LFkk;h O;kns’k ds fy, okn & U;k;ky; Qhl rFkk ?kuh; vf/kdkfjrk dk iz’u & dk vo/kkj.k & okni= ds vfHkdFkuksa rFkk bZfIlr vuqrks”k ij fopkj fd;k tkuk pkfg, & foØ; foys[k ds ewY; ij okn ds ewY;kadu dk iz’u visf{kr ughaA 1977¼2½ e-iz- ohDyh uksV~l 480] 1980¼2½ e-iz- ohDyh uksV~l 102 rFkk 2001¼1½ ts ,y ts 81 ¼iw.kZ U;k;ihB½ voyafcrA ¼iSjk 11 ls 13
¼2½ fofufnZ”V vuqrks”k vf/kfu;e] 1963 & /kkjk 34 & dk ykxw gksuk & dCtsnkj Lokeh }kjk gd~ dh ?kks”k.kk rFkk LFkk;h O;kns’k ds fd, okn & dCtk ds fy, dksbZ vuqrks”k bZfIlr ugha & oknhx.k dk dCtk & izfroknhx.k }kjk Lohdkj fd;k x;k & okn /kkjk 34 ds mica/kksa ls oftZr ughA ¼iSjk 15
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 164 rFkk 110 & fganw mÙkjkf/kdkj vf/kfu;e] 1956 & /kkjk 8 & vuq-1 & fgr dk U;kxeu & rhu Hkkb;ksa ds chp esa iSr`d laifÙk dk foHkktu & foHkktu ds i'pkr~ & laifÙk iSf=d laifÙk ugha jgrh & ,d HkkbZ }kjk vius Lo;a rFkk pkj iqf=;ksa ds chp esa dkSVqafcd O;oLFkkiu fd;k x;k & iwoZ e`r iq=h ds okfjl dks dksbZ va’k ugha fn;k x;k & iwoZ e`r iq=h dk iq= & viuh ekrk ds firk ds thoudky esa dksbZ nkok ugha dj ldrk & iwoZ e`r iq=h ds iq= dk voS/k ukekarj.k & ,sls iq= }kjk fd;k x;k foØ; vÑr vkSj ‘kwU; gSA ¼iSjk 16
(1) Court Fees Act, 1870 -- Ss.7(iv)(c) and 7(iv)(d) -- Suits Valuation Act, 1887 -- S.8 -- suit for declaration of title and permanent injunction by owner and possessor -- question of Court fees and pecuniary jurisdiction -- determination of -- should be considered on plaint allegations and relief sought for -- question of valuation of suit on value of sale deed not at all required. 1977(II) MPWN 480, 1980(II) MPWN 102 and 2001(1) JLJ 81 (FB) relied on. [Paras 11 to 13
(2) Specific Relief Act, 1963 -- S.34 -- applicability of suit for declaration of title and permanent injunction by possessor owner -- no relief sought for possession -- possession of plaintiffs -- admitted by defendants -- suit not barred by provisions of section 34. [Para 15
(3) Land Revenue Code, 1959 (M.P.) -- Ss.164 and 110 -- Hindu Succession Act, 1956 -- S.8 -- Sch.1 -- devolution of interest -- partition of ancestral property amongst three brothers -- after partition -- property does not remain ancestral property -- family settlement made by one brother amongst himself and 4 daughters -- no share given to heirs of predeceased daughter -- son of predeceased daughter -- cannot claim in lifetime of father of his mother -- illegal mutation of son of predeceased daughter -- sale made by such son is null and void. [Para 16
1. The instant appeal is directed against the concurrent judgment and decree of the first appellate Court dated 15.9.2011 passed by District Judge, Vidisha in Civil Appeal No.59-A/2010 confirming the judgment and decree dated 1.10.2010 passed by Civil Judge, Class-I, Kurwai, District Vidisha in Civil Suit No. 33-A/2009.
2. Facts necessary for disposal of this appeal as per plaint allegations are that plaintiff No.1-Gajraj Singh is father of plaintiffs No.2 to 5. Defendant No.1 is son of pre-deceased daughter of plaintiff No.1 and defendant No.2 is a purchaser of the suit land from defendant No.1.
3. A suit for declaration of title and permanent injunction was filed in respect of the suit land described in para 2 of the plaint and situated in village Roshanpipariya, Tahsil Kurwai, District Vidisha (hereinafter shall be referred to as “suit land”). The suit land, falling in total area of 38.337 hectare, originally belonged to one Takhat Singh, father of plaintiff Gajraj Singh. After the demise of Takhat Singh, the aforesaid land was divided amongst his three sons viz. Gajraj Singh, Khilan Singh and Phool Snigh. On such division, land ad-measuring 12.779 hectare fell to the share and possession of Gajraj Singh. In the family arrangement dated 24.11.2000, entered amongst the plaintiffs, each got the equal share of 2.130 hectare and accordingly, names of four daughter, who are plaintiffs No.2 to 5, were mutated as Bhoomiswami in the revenue record along with father Gajraj Singh. Defendant No.1 Awadhesh Singh, son of predeceased daughter of Gajraj Singh, managed to get his name mutated over 2.130 hectare of land purportedly under an order of Tahsildar, Kurwai dated 28.9.2006 and transferred 2.130 hectare of land in favour of defendant No.2 Umabai. As the husband of Umabai threatened to take forcible possession, plaintiffs having no option, filed a suit for declaration and permanent injunction.
4. Defendants No.1and 2 filed written statement and contended that the suit land is a property of Joint Hindu Family of which plaintiff No. 1 was Karta, alongwith plaintiffs No.2 to 5, his predeceased mother was also having a share in the suit land falling to the share of Gajraj Singh. He being the heir of his pre-deceased mother-Kamlesh Bai, has right to transfer 2.130 hectare land in favour of defendant No.2 by registered sale deed. The defendants also contended that the suit was under valued and therefore, Court lacked pecuniary jurisdiction.
5. The trial Court framed issues. Parties led evidence. The trial Court recorded findings to the effect that (i) there is no dispute that there was a partition amongst the three sons of Takhat Singh; (ii) there is also no dispute that the suit land fell into the share of Gajraj Singh and was divided amongst his four daughter alongwith him. Their names were duly mutated in the revenue records under family arrangement dated 24.11.2000; (iii) the defendant No. 1 claimed for so much of land 2.130 hectare on premise of the order passed by the Tahsildar dated 28.9.2006 (Ex.P/2) passed in case No.24-A/06/05-06; whereby, it was ordered to mutate the name of defendant No.1 in respect of the suit land. Tahsildar in its order dated 28.9.2006 has observed that Gajraj Singh did not want to give any share of suit land to the son of his pre-deceased daughter Kamlesh Bai at the time of family arrangement dated 24.11.2000, but at the same time it has been ordered that name of Kamlesh Bai was missed out in respect of suit land. Therefore, her name deserves to be mutated in the revenue records for the aforesaid land and since she is no more, therefore, her son-defendant No.1’s name should be recorded.
6. There is no provision under the Madhya Pradesh Land Revenue Code, 1959 (hereinafter shall be referred to as “MPLRC”) which empowers he Revenue Authorities to declare share of an individual in respect of agricultural land. On the contrary under section 164 of MPLRC, the interest of Bhoomiswami shall be devolved on
