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IN THE HIGH COURT OF MADHYA PRADESH
Dwarkadhish Bansal, J.
Ramkali (Smt.) (Dead) By LRs Anand Kishore Shukla & others v. Smt. Murit Kumari (Dead) By LRs Gopal Krishan Pandey & others
Second Appeal No. 1015 of 2004; against the judgment and decree dated 24.6.2004 passed by the Sixth Additional District Judge (Fast Track Court), Rewa in Appeal No. 43-A/2004; Decided on 20.7.2022
¼1½ dCtk & vfÒçsr & lg&Lokeh dk dCtk & çR;sd lg&Lokeh dk Òwfe d¢ çR;sd bap ij dCtk le>k tkrk gS & ,d lg&Lokeh dk dCtk leLr dk dCtk gSA ¼1995½ 4 ,l lh lh 496] ¼2002½ 2 ,l lh lh 62 rFkk ¼2004½ 1 ,l lh lh 271 vuqlfjrA ¼iSjk 13 ,oa 14½
¼2½ fofufnZ"V vuqr¨"k vfèkfu;e] 1963 & èkkjk 34 & okn pykus ;¨X; g¨uk & 1@3 va'k d¢ gd dh Ĩ"k.kk rFkk O;kns'k d¢ fy, okn & dCts dk vuqr¨"k ugha pkgk x;k & oknh rFkk çfroknh Øekad 1 ,oa 2 dk dCtk ik;k x;k & ek= blfy, fd oknh fookfgr gS v©j vius lkl&llqj d¢ lkFk fuokljr gS] ;g ugha dgk tk ldrk fd mldk dCtk ugha gS & csn[kyh dk vfÒopu ugha fd;k x;k & èkkjk 34 ij fopkj fd, fcuk] va'k dh Ĩ"k.kk dh tk ldrh gS & okn pykus ;¨X; v©j Bhd&gh fMØh fd;k x;kA ¼2021½ 14 Ldsy 293 rFkk , vkb vkj 2018 ¼,u v¨ lh½ 894 vuqlfjrA ¼iSjk 15 ls 18½
¼3½ Òwfe & çÑfr & jktLo vfÒys[k esa Òwfe Òw&jktLo nk;h Ñf"k Òwfe d¢ :i esa vfÒfyf[kr & ml ij dqN fuekZ.k gks rc Òh] Òwfe dks Ñf"k Òwfe ekuk tk,xkA ¼iSjk 18½
¼4½ foy & foy d¢ vkèkkj ij gd dk nkok & lcwr dk Òkj & foy çLrqr djus okys ij gSA ¼2008½ 4 ,l lh lh 594 vuqlfjrA ¼iSjk 20 ,oa 21½
¼5½ lk{; vfèkfu;e] 1872 & èkkjk 68 & mÙkjkfèkdkj vfèkfu;e] 1925 & èkkjk 63 ¼x½ & foy & lcwr dk Òkj ,oa jhfr & çfroknh d¢ i{k esa foy & lcwr dk Òkj çfroknh ij gS & foy 1872 d¢ vfèkfu;e dh èkkjk 68 rFkk 1925 d¢ vfèkfu;e dh èkkjk 63 ¼x½ d¢ vuqlkj lkfcr ugha dh xà & oknh }kjk foy vk{ksfir fd;k tkuk visf{kr ughaA , vkb vkj 1929 ykg©j 11 rFkk ¼2008½ 4 ,l lh lh 594 fufnZ"VA ¼iSjk 19 ls 23½
¼6½ fofufnZ"V vuqr¨"k vfèkfu;e] 1963 & èkkjk 34 & Òwfe esa 1@3 va'k dh Ĩ"k.kk d¢ fy, okn & çfroknh }kjk foy d¢ vkèkkj ij foj¨èk & okni= esa foy dwVjfpr] xढh gqbZ ;k ewyr% 'kwU; Ĩf"kr fd, tkus dh çkFkZuk ugha & oknh }kjk gd dh Ĩ"k.kk igys ls gh pkgh xà & foy dwVjfpr Ĩf"kr djus dh çkFkZuk y?kqrj vuqr¨"k g¨us ls] gd d¢ vuqr¨"k esa lfEefyr le>h tk,xhA 2014 ¼14½ ,l lh lh 502] ¼2006½ 5 ,l lh lh 558] ¼1976½ 2 ,l lh lh 142] ¼1993½ 3 lIyhŒ 129] ¼2005½ 1 ,l lh lh 40] , vkb vkj 1966 ,l lh 359] ¼1973½ 2 ,l lh lh 60] ¼2011½ 12 ,l lh lh 220] ¼2018½ 1 ,p ,y vkj 279] , vkb vkj 1979 d¢jy 96] 1918 ¼20½ cacbZ ,y vkj 509 ¼ih lh½] , vkb vkj 1978 tEew ,oa d'ehj 16] , vkb vkj 2001 iatkc ,oa gfj;k.kk 331] vkb ,y vkj ¼2013½ ,e ih 1004] ¼2001½ ,l lh lh vkWuykbu eækl 955] ¼2003½ 2 ,l lh lh 91] ¼1980½ 4 ,l lh lh 396] ¼2012½ 12 ,l lh lh 406] ¼1998½ 6 ,l lh lh 748] ¼2002½ 1 ,l lh lh 134] , vkb vkj 1990 ,l lh 1742] , vkb vkj 1983 ,l lh 114] , vkb vkj 2013 ,p ih 4] 1994 ,e ih ,y ts 209] 1961 ts ,y ts 1263] ¼1986½ bykŒ ,y ts 1056 rFkk , vkb vkj 1932 dyŒ 504 fufnZ"VA ¼iSjk 24½
¼7½ flfoy çfØ;k lafgrk] 1908 & èkkjk 100 & O;kfIr & foy d¢ fu"iknu lacaèkh fu"d"kZ & 'kq)r% rF; dk ç'u & gLr{ksi ugha fd;k tk ldrk & èkkjk 100 dh O;kfIr lhfer gSA ¼2009½ 12 ,l lh lh 454 vuqlfjrA ¼iSjk 25½
¼8½ flfoy çfØ;k lafgrk] 1908 & èkkjk 100 & O;kfIr & n¨ fupys U;k;ky;ksa d¢ leorÊ fu"d"kZ & gLr{ksi ;¨X; ughaA ¼iSjk 26½
(1) Possession -- meaning -- possession of co-owner -- every co-owner is deemed to be in possession of every inch of land -- possession of one co-owner is possession of all. (1995) 4 SCC 496, (2002) 2 SCC 62 and (2004) 1 SCC 271 followed. [Paras 13 & 14]
(2) Specific Relief Act, 1963 -- S. 34 -- maintainability of suit -- suit for declaration of title of 1/3 share and injunction -- relief of possession not sought -- plaintiff and defendants No. 1 and 2 found to be in possession -- merely because plaintiff is married and is residing with her in-laws, it cannot be said that she is not in possession -- no plea of ouster taken -- declaration of share can be made irrespective of section 34 -- suit maintainable and rightly decreed. (2021) 14 SCALE 293 and AIR 2018 (NOC) 894 followed. [Paras 15 to 18]
(3) Land -- nature -- land recorded in revenue record as agricultural revenue paying land -- even if there is some construction on it, land would be considered as agricultural land. [Para 18]
(4) Will -- claim of title on basis of Will -- burden of proof -- is upon propounder of Will. (2008) 4 SCC 594 followed. [Paras 20 & 21]
(5) Evidence Act, 1872 -- S. 68 -- Succession Act, 1925 -- S. 63 (C) -- Will -- burden and manner of proof -- Will in favour of defendant -- burden of proof is upon defandant -- Will not proved according to section 68 of Act of 1872 and section 63 (C) of Act of 1925 -- challenge to Will by plaintiff not required. AIR 1929 Lah. 11 and (2008) 4 SCC 594 referred to. [Paras 19 to 23]
(6) Specific Relief Act, 1963 -- S. 34 -- suit for declaration of 1/3 share in land -- opposed by defendant on basis of Will -- no prayer in plaint for declaring Will to be forged, fabricated and ab initio void -- declaration of title already sought by plaintiff -- prayer for declaring Will as forged being smaller relief, must be deemed to be included in relief of title. (2014) 14 SCC 502, (2006) 5 SCC 558, (1976) 2 SCC 142, (1993) 3 Supp. 129, (2005) 1 SCC 40, AIR 1966 SC 359, (1973) 2 SCC 60, (2011) 12 SCC 220, (2018) 1 HLR 279, AIR 1979 Ker. 96, 1918 (20) Bom. LR 509 (PC), AIR 1978 J&K 16, AIR 2001 P&H 331, ILR (2013) MP 1004, (2001) SCC Online Mad. 955, (2003) 2 SCC 91, (1980) 4 SCC 396, (2012) 12 SCC 406, (1998) 6 SCC 748, (2002) 1 SCC 134, AIR 1990 SC 1742, AIR 1983 SC 114, AIR 2013 HP 4, 1994 MPLJ 209, 1961 JLJ 1263, (1986) All. LJ 1056 and AIR 1932 Cal. 504 referred to. [Para 24]
(7) Civil P.C. 1908 -- S. 100 -- scope -- findings regarding execution of Will -- pure question of fact -- cannot be interfered with -- scope under section 100 is limited. (2009) 12 SCC 454 followed. [Para 25]
(8) Civil P.C. 1908 -- S. 100 -- scope -- concurrent findings of two Courts below -- not liable to be interferred. [Para 26]
JUDGMENT
1. This second appeal has been filed by the appellants/defendants challenging the judgment and decree dated 24.6.2004, passed by 6th Additional District Judge (Fast Track Court) Rewa in Civil Appeal No.43-A/04 whereby confirming the judgment and decree dated 28.1.2000, passed by 5th Civil Judge Class-II, Rewa, in Civil Suit No.225-A/1998 whereby the suit filed for declaration of 1/3rd share in the land survey No.204 area 0.85 acre situated in village (Mauja) Padra was decreed.
2. The facts in short are that, the land in question belonged to deceased-Vindheshwari Prasad, who was succeeded by his wife Mst. Sukhrajua (defendant 1) and two daughters Smt. Ramkali (defendant 2) and Smt. Murtikumari (plaintiff). The defendants 3-5 are sons of defendant 2-Smt. Ramkali. Vindheshwari Prasad died on 12.9.1988, leaving behind him the land survey No.204 area 0.85 acre, situated in Village (Mauja) Padra, Tehsil Huzur, Distrit Rewa. It is alleged in the plaint that after death of Vindheshwari Prasad, the plaintiff and defendants 1-2 are having 1/3rd share each and the defendants 3–6 or any other person have no right and Vindheshwari Prasad never executed any deed of transfer/agreement or Will. It is also alleged in the plaint that the husband of defendant 2–Ramkali got a false and fabricated agreement (Ex.D-1) prepared and thereafter, got fabricated a Will (Ex.D-2) and on that basis tried to get the name of defendants 3–5 mutated over the land in question. On inter alia allegations, the plaintiff prayed for declaration that she is Bhoomiswami over 1/3rd share and in possession.
3. The defendants 2–5 filed written statement denying the plaint allegations and contended that Vindheshwari Prasad in his life time executed a Will on 23.8.1988 in favour of defendants 3-5 and after death of Vindheshwari Prasad, they are Bhoomiswami and in possession of the land in question. It was also contended that neither the plaintiff nor defendants 1–2 are owner or in possession and are not entitled for any declaration. It was also contended that the suit land is a residential plot in which two houses and boundary wall is constructed which are having value of about Rs.9 lacs. Accordingly, it was contended that the suit has not been valued properly and the learned Court has no pecuniary jurisdiction.
4. The defendant 1 also filed written statement admitting the plaint allegations and contended that Vindheshwari Prasad never executed any Will (Ex.D-2) in favour of defendants 3–5 nor executed any agreement/gift deed (Ex.D-1), which is a fabricated document. After death of Vindheshwari Prasad, his wife and two daughters i.e. plaintiff and defendants 1-2 are entitled to succeed his property.
5. The defendant 6–State despite service of summons, did not appear and was proceeded exparte.
6. The learned trial Court on the basis of pleadings of the parties framed as many as 8 issues and recorded evidence led by the parties. After due consideration of the material available on record, learned trial Court held that the plaintiff and defendants 1-2 are Bhoomiswami and in joint possession of the land having 1/3rd share and it was held that the defendants 3–5 are not entitled to succeed the property on the basis of Will in question which has been found by learned Court to be a false and fabricated document. In para 32, the learned trial Court held that the plaintiff – Murtikumari and defendant-1 Smt. Sukhrajua are not in physical possession but the defendants 2–5 are in physical possession and at the end of the para, it was also held that the plaintiff and defendants 1-2 being co-owners, would be deemed to be in joint possession of the suit property. Accordingly, ignoring the Will and Gift deed of the favour of defendants 3–5, learned trial Court decreed the suit declaring the plaitiff to be shareholder of 1/3rd share. Upon filing civil appeal, learned first appellate Court affirmed the same, vide judgment and decree dated 24.6.2004.
7. Upon filing second appeal by defendan
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