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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Raghuvansh & others v. Ramkali & others
Second Appeal No. 513 of 2019 (Jabalpur): against the judgment and decree dated 30.11.2018 passed by the II Additional Judge to the Court of I Additional District Judge, Sidhi in Civil Appeal No. 30/2018; Decided on 6.2.2023.
¼1½ lk{; vfèkfu;e] 1872 && èkkjk 112 && larku dk èkeZtRo && oknhx.k us foÒktu] dCts ,oa ukekarj.k vkns'k vÑr rFkk 'kwU; Ĩf"kr djkus d¢ fy, okn çLrqr fd;k && çfroknhx.k us vkifÙk dh fd oknhx.k çfroknh Øekad 1 dh larku ugha vfirq mudk tUe v;qä lacaèk ls gqvk gS && oknhx.k dk tUe fofèkekU; fookg ds nkSjku gqvk && og èkeZt larku gSa && Mh,u, ijh{k.k dk vkosnu Bhd&gh [kkfjt && Mh,u, ijh{k.k dk funs'k cgqr lgtrk ls ugÈ fn;k tkuk pkfg, && blls O;fä dh futrk dk vfrØe.k Òh gksrk gS && bldk funs'k rc rd ugÈ fd;k tkuk pkfg, tc rd fd U;k;ky; bl fu"d"kZ ij ugÈ vkrk fd Mh,u, ijh{k.k d¢ fcuk mld¢ fy, lR; ij igq¡puk laÒo ugÈ g¨xkA ¼2010½8 ,l lh lh 633 rFkk ¼2022½ 1 ,l lh lh 20 vuqlfjrA ¼iSjk 17 ls 21
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 178 && fganw mÙkjkfèkdkj vfèkfu;e] 1956 && èkkjk 8] vuq- 1 && lk{; vfèkfu;e] 1872 && èkkjk 112 && larku dk èkeZtRo && oknhx.k us foÒktu] dCts ,oa ukekarj.k vkns'k vÑr rFkk 'kwU; Ĩf"kr djkus d¢ fy, okn çLrqr fd;k && çfroknhx.k us vkifÙk dh fd oknhx.k çfroknh Øekad 1 dh larku ugha vfirq mudk tUe v;qä lacaèk ls gqvk gS && oknhx.k dk tUe fof/kekU; fookg ds nkSjku gqvk && og èkeZt larku gSa && Mh,u, ijh{k.k dk vkosnu Bhd&gh [kkfjt && okn fMØh fd;k x;k && fupys U;k;ky;¨a d¢ ,d gh fu"d"kZ && gLr{ksi visf{kr ugÈA ¼iSjk 3] 7] 8 rFkk 17 ls 21
¼3½ flfoy çfØ;k] 1908 && èkkjk 100 && rF; dk ,d&gh fu"d"kZ fd oknhx.k çfroknh Ø- 1 dh larku gSa && lk{; d¢ ewY;kadu ij vkèkkfjr && d¨Ã foi;ZLrrk ugÈ crkà tk ldh && d¢oy ;g fd fÒUu jk; laÒo gS] rF; d¢ ,d&gh fu"d"k¨Za esa gLr{ksi dk vkèkkj ugÈ g¨ ldrkA ¼2016½ 3 ,l lh lh 78] ¼2001½ 9 ,l lh lh 521] ¼2019½ 17 ,l lh lh 71] ¼2007½ 1 ,l lh lh 546 rFkk ¼2010½ 13 ,l lh lh 216 vuqlfjrA ¼iSjk 23] 24 ,oa 30
¼4½ fganw mÙkjkf/kdkj vf/kfu;e] 1956 && èkkjk 8] vuq- 1 && lk{; vfèkfu;e] 1872 && èkkjk 112 && ¼e-ç-½ Òw&jktLo lafgrk] 1959 && èkkjk 178 && larku dk èkeZtRo && oknhx.k us foÒktu] dCts ,oa ukekarj.k vkns'k vÑr rFkk 'kwU; Ĩf"kr djkus ds fy, okn çLrqr fd;k && çfroknhx.k us vkifÙk dh fd oknhx.k çfroknh Øekad 1 dh larku ugha vfirq mudk tUe v;qä lacaèk ls gqvk gS && oknhx.k dk tUe fof/kekU; fookg ds nkSjku gqvk && og èkeZt larku gSa && Mh,u, ijh{k.k dk vkosnu Bhd&gh [kkfjt && okn fMØh fd;k x;k && fupys U;k;ky;¨a d¢ ,d gh fu"d"kZ && gLr{ksi visf{kr ugÈA ¼iSjk 3] 7] 8 rFkk 17 ls 21
(1) Evidence Act, 1872 -- S. 112 -- legitimacy of children -- plaintiffs filed suit for partition, possession and declaration of mutation order as null and void -- defendants objected that plaintiffs are not children of defendant No. 1 but are born of illicit relationship -- plaintiffs born during continuance of valid marriage -- they are legitimate children -- application of defendants for conducting DNA test rightly rejected -- direction for DNA test should not be given in very light manner -- it is also violative of privacy of person -- it should not be directed unless and until Court comes to conclusion that it will not be possible for it to come to truth without DNA test. (2010) 8 SCC 633 and (2022) 1 SCC 20 followed. [Paras 17 to 21
(2) Land Revenue Code, 1959 (M. P.) -- S. 178 -- Hindu Succession Act, 1956 -- S.8, Sch. 1 -- Evidence Act, 1872 -- S. 112 -- legitimacy of children -- plaintiffs filed suit for partition, possession and declaration of mutation order as null and void -- defendants objected that plaintiffs are not children of defendant No. 1 but are born of illicit relationship -- plaintiffs born during continuance of valid marriage -- they are legitimate children -- application of defendants for conducting DNA test rightly rejected -- suit decreed -- concurrent findings of Courts below -- no interference called for.
[Paras 3, 7, 8 & 17 to 21
(3) Civil P. C., 1908 -- S. 100 -- concurrent findings of fact that plaintiffs are children of defendant No. 1 -- based on appreciation of evidence -- no perversity could be pointed out -- merely that second view is possible, cannot be ground to interfere with concurrent findings of fact. (2016) 3 SCC 78, (2001) 9 SCC 521, (2019) 17 SCC 71, (2007) 1 SCC 546 and (2010) 13 SCC 216 followed.
[Paras 23, 24 & 30
(4) Hindu Succession Act, 1956 -- S. 8. -- Sch.1 -- Evidence Act, 1872 -- S.112 -- M.P. Land Revenue Code, 1959 -- S.178 -- legitimacy of children -- plaintiffs filed suit for partition, possession and declaration of mutation order as null and void -- defendants objected that plaintiffs are not children of defendant No. 1 but are born of illicit relationship -- plaintiffs born during continuance of valid marriage -- they are legitimate children -- application of defendants for conducting DNA test rightly rejected -- suit decreed -- concurrent findings of Courts below -- no interference called for.
[Paras 3, 7, 8 & 17 to 21
ORDER
1. This Second Appeal under section 100 of CPC has been filed against the judgment and decree dated 30.11.2018 passed by Second Additional Judge, Sidhi to the Court of First Additional District Judge, Sidhi (M.P.) in Regular Civil Appeal No.30/2018 arising out of the judgment and decree dated 19.5.2017 passed by First Civil Judge Class-1, Sidhi, District – Sidhi (M.P.) in Civil Suit No.4A/2006.
2. The appellants are the defendants who have lost their case from both the Courts below.
3. The plaintiffs filed a suit for partition and possession as well as for declaring the mutation order dated 18.9.1988 as null and void as well as for mesne profits at the rate of Rs.22,500/- per year.
4. The case of the plaintiffs was that the plaintiffs and the defendants are legal representatives of Baramdeen Patel. The defendant No.1 – Balgovind was married to Mudhuni and the plaintiffs are the children born out of the said wedlock. It is their case that later on the defendant No.1 developed illicit relationship with daughter of Mahaveer Patel. As a result he started harassing the mother of the plaintiffs and when the plaintiffs were 5 & 6 years old respectively, they were turned out of their house by the defendant No.1. Thereafter, the plaintiffs were residing in the house of their maternal grandparents and in the meanwhile, the mother of the plaintiffs also expired. When the plaintiffs were aged around 14 – 15 years, then they along with the respectable members of the society went to the house of defendants No.1 to 5 and requested the defendant No.1 to allow to stay in the house and as well as give their share. However, the defendant No.1 denied the same. On 14.1.1996, plaintiffs again went to the house of the defendants No.1 to 5 and demanded their share. However, they got annoyed and plaintiffs were forcibly turned out of the house. It is the case of the plaintiffs that they do not have any dispute with defendants No.6 to 18 because the joint property was already partitioned and they had already separated from the defendants No.1 to 5 and are in possession of their respective shares. The property shown in schedule-B is the disputed property and it was claimed that the plaintiffs have 1/2 share in the property in dispute and accordingly the suit was filed for declaration of title as well as for partition and for declaring the mutation order dated 18.9.1988 as null and void.
5. The defendants No.1 to 5 filed their written statement and claimed that the property shown in schedule-B is the joint family property of defendants No.1 to 5. The said property was given to the defendants No.3 to 5 by registered family settlement dated 22.1.1988. The defendant No.1 had 1/8 share whereas his Aunt Mus. Chourasiya widow of Kuisa has 1/8 share. Kuisa had no issues and accordingly, the defendant No.1 and his Aunt Chourasiya by the family settlement has already granted the property to the defendants No.3 to 5. It was claimed that the plaintiffs are not the children of the defendant No.1. It was their case that the plaintiffs are the illicit children of one Ramsundar Patel. It was further claimed that since the mother of the plaintiffs was already pregnant at the time of the marriage with the defendant No.1, therefore she herself deserted the defendant No.1. Hemkaran – defendant No.12 and Mus. Budhni – defendant No.6 have already expired and their legal representatives have not been impleaded as party and therefore the suit suffers from non-joinder of necessary party.
6. The other defendants have not filed any written statement.
7. The Trial Court after framing issues and recording evidence, decreed the suit and it was held that the plaintiffs are the children of defendant No.1 and they have half share in the property in dispute. However, mesne profit was denied.
8. Being aggrieved by the judgment and decree passed by the trial Court, the appellants prefer
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