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2018 Supreme(MP) 262
IN THE HIGH COURT OF MADHYA PRADESH
Ashok Kumar Joshi, J.
Dharamveer and others v. Maharaj Singh (Died) through LRs. 1(a) Mahila Bhato and others
Second Appeal No. 476 of 2017 (Gwalior): against judgment and Decree dated 29.8.2017 passed by First Additonal District Judge, Shivpuri in Regular Civil Appeal; Decided on 31.1.2018
Santosh Agrawal for appellants;
S.K. Shrivastava for respondents No. 1 to 6
Headnote: ¼1½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ & /kkjk 109] 119 rFkk 164 & flfoy çfØ;k lafgrk] 1908 & /kkjk 54 rFkk vk- 20 fu- 18 & fofufnZ"V vuqrks'k vf/kfu;e] 1963 & /kkjk 34] 38 rFkk 31 & va'k ds gd vkSj 'kk'or O;kns'k dh ?kks"k.kk ds fy, okn & 1@9 va'k /kkjd lydk iq= uFkqvk fuoklh xzke Hkjdk fuLlarku e`r & ,d vU; O;fä Hkh lydk iq= jktkjke fuoklh vkdqlhZ & vihykFkhZx.k@çfroknhx.k us "kM;a= ls lydk iq= uFkqvk ds LFkku ij viuk ukekarj.k djk fy;k & rRi'pkr~ vihykFkhZx.k us Hkwfe foØ; dj nh & ekSf[kd ,oa nLrkosth lk{; ls & oknh us ;g lkfcr fd;k fd lydk iq= uFkqvk ,oa lydk iq= jktkjke fHkUu&fHkUu O;fä gSa vkSj okn lydk iq= uFkqvk dk mRrjkf/kdkjh & oknh dk nkok lg&Lokfeksa ds fyf[kr dFku ls Hkh lefFkZr & vihykFkhZx.k@çfroknhx.k ;g LFkkfir djus esa vlQy jgs fd lydk iq= uFkqvk ,oa lydk iq= jktkjke ,d gh O;fä Fkk & fopkj.k U;k;ky; us okn [kkfjt djus esa =qfV dh gS & çFke vihy U;k;ky; us lgh&gh okn fMØh fd;k f}rh; vihy esa gLr{ksi visf{kr ughaA ¼iSjk 2] 3 ,oa 15 ls 21
¼2½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 34] 38 rFkk 31 & flfoy çfØ;k lafgrk] 1908 & /kkjk 54 rFkk vk- 20 fu- 18 & e-ç- Hkw&jktLo lafgrk] 1959 & /kkjk 109] 110 rFkk 164 & va'k ds gd~ vkSj 'kk'or O;kns'k dh ?kks"k.kk ds fy, okn & 1@9 va'k /kkjd lydk iq= uFkqvk fuLlarku e`r & ,d vU; O;fä Hkh lydk iq= jktkjke fuoklh vkdqlhZ & vihykFkhZx.k@çfroknhx.k us "kM;a= ls lydk iq= uFkqvk ds LFkku ij viuk ukekarj.k djk fy;k & rRi'pkr~ vihykFkhZx.k us Hkwfe foØ; dj nh & ekSf[kd ,oa nLrkosth lk{; ls & oknh us ;g lkfcr fd;k fd lydk iq= uFkqvk ,oa lydk iq= jktkjke fHkUu&fHkUu O;fä gSa vkSj oknh lydk iq= uFkqvk dk mRrjkf/kdkjh gS & oknh dk nkok lg&Lofeksa ds fyf[kr dFku ls Hkh lefFkZr & vihykFkhZx.k@çfroknhx.k ;g LFkkfir djus esa vlQy jgs fd lydk iq= uFkqvk ,oa lydk iq= jktkjke ,d gh O;fä Fkk & fopkj.k U;k;ky; us okn [kkfjt djus esa =qfV dh gS & çFke vihy U;k;ky; us lgh&gh okn fMØh fd;k & f}rh; vihy esa gLr{ksi visf{kr ughaA , vkb vkj 1985 ,l lh 1728 fufnZ"VA ¼iSjk 2] 3 ,oa 15 ls 21
¼3½ flfoy çfØ;k lafgrk] 1908 & /kkjk 100 & 'kfä;ksa dh O;kfIr & çFke vihy U;k;ky; rF; fo"k;d vafre U;k;ky; gS & ekSf[kd ,oa nLrkosth lk{; dk fof/kr% ewY;kadu fd;k x;k & dsoy bl vk/kkj ij fd fupys vihy U;k;ky; us fopkj.k U;k;ky; dh fMØh myV nh gS & f}rh; vihy xzká ugha dh tk ldrhA ¼iSjk 21
¼4½ flfoy çfØ;k lafgrk] 1908 & /kkjk 100 & dh O;kfIr & f}rh; vihy & dksbZ fof/k dk ç'u ;k fof/k dk lkjoku ç'u varoZfyr ugha & vihy xzká ugha dh tk ldrh & ogh [kkfjt dh xbZA ¼iSjk 21
¼5½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ & /kkjk 109 rFkk 110 & mRrjkf/kdkjh }kjk ukekarj.k esa vusd o"kksaZ dk foyac & dk çHkko & lydk iq= uFkqvk ,oa lydk iq= jktkjke nks O;fä fHkUu&fHkUu xzkeksa ds fuoklh & lydk iq= uFkqvk fuoklh xzke Hkjdk fuLlarku e`r & ;g mi/kkj.kk ugha dh tk ldrh fd uFkqvk fuoklh Hkjdk dk ,d vU; uke jktkjke Fkk & oknh dk okn lydk iq= uFkqvk ds mRrjkf/kdkjh ds :i esa fMØh fd;k x;kA ¼iSjk 15 ,oa 20
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 109, 110 and 164 -- Civil P.C., 1908 -- S. 54 and O. 20 R. 18 -- Specific Relief Act, 1963 -- Ss. 34, 38 and 31 -- suit for declaration of share title and perpetual injunction -- 1/9th share holder Salka s/o Nathua r/o village Bharka died issue-less -- another person also Salka s/o Rajaram r/o village Aakusi appellants/defendants got mutation by conspireacy in place of Salka S/o Nathua -- thereafter land sold by appellants -- by oral and documentary evidence
-- it is proved by plaintiff that Salka S/o Nathua are different person than Salka S/o Rajaram and plaintiff is successor of Salka S/o Nathua -- plaintiff's claim also corroborated by written statement of co-owners -- appellants/defendants failed to established that Salka S/o Nathua and Salka S/o Rajaram was same person -- trial Court erred in dismissing suit -- suit rightly decreed by first appellant Court -- no interference called for in second appeal. [Paras 2, 3 and 15 to 21
(2) Specific Relief Act, 1963 -- Ss. 34, 38 and 31 -- Civil P.C., 1908 -- S.54 and O. 20 R. 18 -- M.P. Land Revenue Code, 1959 -- Ss. 109, 110 and 164 -- suit for declaration of share title and perpetual injunction -- 1/9th share holder Salka s/o Nathua r/o Village Bharka died issue-less -- another person also Salka s/o Rajaram r/o Village Aakursi -- appellants/defendants got mutation by conspiracy in place of Salka s/o Nathua -- thereafter land sold by appellants -- by oral and documentary evidence -- it is proved by plaintiff that Salka s/o Nathua are different person than Salka s/o Rajaram and plaintiff is successor of Salka s/o Nathua -- plaintiff's claim also corroborated by written statement of co-owners -- appellant/defendant failed to established that Salka s/o Nathua and Salka s/o Rajaram was same person -- trial Court erred in dismissing suit -- suit reightly decreed by first appellant Court -- no interference called for in second appeal. AIR 1985 SC 1728 referred to. [Paras 2, 3 & 15 to 21
(3) Civil P.C., 1908 -- S. 100 -- scope of powers -- first appellate Court being final Court of facts -- legally appreciated oral and documentary evidence -- mere on this ground that lower appellate Court has reversed decree of trial Court -- second appeal cannot be admitted. [Para 21
(4) Civil P.C., 1908 -- S. 100 -- scope of -- second appeal -- no question of law or substantial question of law involved -- appeal cannot be admitted -- same dismissed. [Paras 21 & 22
(5) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110 -- many years delay in mutation by successor -- effect of -- Salka s/o Nathua and Salka S/o Rajaram two persons of different villages -- Salka s/o Nathua r/o village Bharka died issue-less -- it could not be inferred that another name of Nathua R/o village Bharka was Rajaram -- suit of plaintiff as successor of Salka S/o Nathua decreed. [Paras 15 & 20
1. Appellants/original defendants No. 1 to 5 have filed this second appeal under section 100 of CPC against the judgment and decree dated 29.8.2017 passed by the First Additional District Judge, Shivpuri in regular Civil Appeal No. 500025/14, whereby the judgment and decree dated 26.3.2014 passed by the Fourth Civil Judge, Class-II Shivpuri in Civil Suit No. 17A/2013 was reversed.
2. The trial Court has dismissed the suit filed by the plaintiffs/present respondents No. 1 to 6 for declaration of title regarding their 2/9 share in the disputed agricultural land bearing survey Nos. 85,86,95,96 and 99 of village Bharka, Tehsil and District Shivpuri and for a perpetual injunction against the defendants, but the lower appellate Court has decreed the plaintiffs' suit.
3. Original plaintiffs, who were LRs of the two real brothers Maharaj Singh and Lalaram, resident of village Bharka filed suit on pleadings that the plaintiffs and original defendants No. 6 to 17 are owners and possession holders of the suit lands. The great grandfather of the plaintiffs, Paramsukh was real brother of Nathua and each bro ther was having 1/9 share in the disputed lands. After the death of Paramsukh, his son Goda and after the death of Goda his son Shreelal became title holders of his share and after the death of Shreelal plaintiffs are their successors. It was also pleaded that the above mentioned Nathua was having sole son named Salka, who died unmarried and issueless, hence in the absence of any heirs of Salka, s/o Nathua, plaintiffs being sons of Salka's real uncle Paramsukh became owners and possession holders of the share of Salka in the disputed land, hence after the dearth of Salka, plaintiffs' share in the disputed lands became 2/9. Original defendants No. 1 to 4 are sons of Mishrilal Kirar, all resident of village Aakursi, Tehsil Pohri, District Shivpuri and the father of the above mentioned defendants, Mishrilal was having a real brother Bhagwanlal, who were sons of Salka, s/o Rajaram, r/o Aakursi, but the defendants No. 1 to 4 (Dharamveer, Aasharam, Om Prakash and Mahesh) got their mutation in revenue records by conspiracy with relating Patwari and Secretary of the relating Gram Panchayat, Jamkho showing them successors of Salka, s/o Nathua's share and got their mutation in the revenue records over 1/9 share in the disputed lands and thereafter sold the relating land to defendant No. 5 Smt. Triveni Giri vide registered sale deed dated 29.11.2010. Such mutation and sale deed are totally illegal and void. On 19.2.2011, defendant No. 5 Smt. Triveni with defendants No. 1 to 4 threatened plaintiffs to dispossess from the disputed lands. Thereafter, plaintiffs got certified copy of the revenue records, then they became aware of the conspiracy and illegal proceedings committed by defendants No. 1 to 5. Plaintiffs did not seek any relief against defendants No. 6 to 18.
4. Defendants No. 1 to 4 in their joint written statement filed before the trial Court denying all the adverse pleadings of the plaintiffs, pleaded that actually alleged Paramsukh and Nathua were not real brothers and Salka, s/o Nathua alias Rajaram was originally resident of village Aakursi, who was grandfather of defendants No. 1 to 4, hence, defendants No. 1 to 4 were legal heirs of Salka, s/o Nathua alias Rajaram's share in suit lands. It has been pleaded by the defendants that Salka, s/o Nathua and Salka, s/o Rajaram were not different persons, but he was a single man as his father Rajaram's another name was Nathua and the relating Gram Panchayat had ordered for their mutation over 1/9 share of Salka in accordance with law and these defendants have sold their share legally to defendant No. 5. It was specifically pleaded that plaintiffs' grandfather Paramsukh was not having any real brother named Nathua, whereas the grandfather of defendants No. 1 to 4 named Salka, s/o Nathua alias Rajaram was erstwhile zamindar of the village Bharka and was having other agricultural lands also i
