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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA th ON THE 26 OF APRIL, 2024 SECOND APPEAL No. 2797 of 2023 BETWEEN:- HAJARILAL S/O DEVILAL LODHA, AGED ABOUT 61 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI TEHSIL SARANGPUR, DISTRICT RAJGARH (MADHYA PRADESH)
.....APPELLANT (BY SHRI JITENDRA BHARAT MEHTA - ADVOCATE)
AND
1A. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS DULESHINGH S/O MUNNALAL LODHA, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURIST, R/O VILLAGE DAYAKHEDI, TEHS IL SANRANPUR, DISTRICT RAJGARH (MADHYA PRADESH)
1B. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS DALIBAI W/O MANOHAR LODHA, AGED ABOUT 37 YEARS, OCCUPATION: AGRICULTURIST, R/O VILLAGE NIPANIYA TULA, TEHS IL SANRANPUR, DISTRICT RAJGARH (MADHYA PRADESH)
1C. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS ANTARSINGH S/O LATE MUNNALAL LODHA, AGED ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST, R/O VILLAGE DAYAKHEDI, TEHS IL SANRANPUR, DISTRICT RAJGARH (MADHYA PRADESH)
1D. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS SUGANBAI W/O MOTISINGH LODHA, AGED ABOUT 29 YEARS, OCCUPATION: HOUSEHOLD, R/O VILLAGE GHOSLA, TEHSIL SANRANPUR, DISTRICT RAJGARH (MADHYA PRADESH)
1E. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS LAKHAN S/O MUNNALAL LODHA, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURIST, R/O VILLAGE DAYAKHEDI, TEHS IL SANRANPUR, DISTRICT RAJGARH (MADHYA PRADESH)
1F. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS SIMABAI W/O RAMBABU LODHA, AGED ABOUT 25 YEARS, OCCUPATION: HOUSEHOLD, R/O VILLAGE SANKAT MOCHAN COLONY, DISTRICT RAJGARH (MADHYA PRADESH)
1G. KALIBAI W/O LATE MUNNALAL DEAD THROUGH LRS MUNNALAL S/O DEVAJI LODHA, AGED ABOUT 70 YEARS, OCCUPATION: NOTHING, R/O VILLAGE DAYAKHEDI, TEHSIL SARANGPUR DIST.
RAJGARH (MADHYA PRADESH)
2. DHAPUBAI W/O RAMESHWAR LODHA, AGED ABOUT 52 YEARS, OCCUPATION: AGRICULTURIST, R/O VILLAGE NIPANIYA TULA, TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
3. CHAMPIBAI W/O MODSINGH LODHA, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE CHAPIHEDA, TEHSIL KHILCHIPUR DISTRICT RAJGARH (MADHYA PRADESH)
4. BAHADURSINGH S/O GIRDHARI LODHA, AGED ABOUT 53 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
5. KAMALSINGH S/O BHAGIRATH LODHA, AGED ABOUT 37 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
6. MUKESH S/O BHAGIRATH LODHA, AGED ABOUT
35 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
7. RAJESH S/O BHAGIRATH LODHA, AGED ABOUT 32 YEAR S , OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
8. SANTOSH S/O BHAGIRATH LODHA, AGED ABOUT
30 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
9. DHARMENDRA S/O BHAGIRATH LODHA, AGED ABOUT 27 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
10. NANDIBAI D/O BHAGIRATH LODHI, AGED ABOUT
57 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
11. KAMLABAI D/O BHAGIRATH LODHA, AGED ABOUT 67 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
12. GANGABAI D/O GIRDHARI W/O BHAGIRATH LODHA, AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE GHOSLA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
13. KANHAIYALAL S/O BAPULAL LODHA, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
14. GOKULSINGH S/O BAPULAL LODHA, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
15. PREMBAI D/O BAPULAL LODHA, AGED ABOUT 45 YEAR S , OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
16. SHANTIBAI D/O BAPULAL LODHA, AGED ABOUT
53 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
17. BANESINGH S/O MAANSINGH LODHA, AGED ABOUT 65 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
18. DARYAVSINGH S/O MAANSINGH LODHA, AGED ABOUT 60 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
19. RAMLAL S/O MAANSINGH LODHA, AGED ABOUT
25 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
20. SUNIL S/O PRATAPSINGH LODHA, AGED ABOUT
65 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
21. MANGILAL S/O PRATAPSINGH LODHA, AGED ABOUT 25 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
22. DILIP S/O PRATAPSINGH LODHA, AGED ABOUT 21 YEAR S , OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
23. MAKHAN MINOR THR MOTHER G.A.L. RUPABAI W/O PRATAPSINGH LODHA, AGED ABOUT 45 YEAR S , VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
24. SUGANBAI D/O PRATAPSINGH LODHA, AGED ABOUT 27 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
25. RUPABAI WD/O PRATAPSINGH LODHA, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE MEHRI CHOTI TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
26. LILABAI D/O ANARSINGH W/O MANGILAL LODHA, AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURE, R/O RAJPURA TEHSIL KHILCHIPUR DIST. RAJGARH (MADHYA PRADESH)
27. KALABAI D/O ANARSINGH W/O MANGILAL LODHA, AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE NIPANIYA TULA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
28. MEVABAI D/O ANARSINGH W/O SIDDHNATH LODHA, AGED ABOUT 51 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE NIPANIYA TULA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
29. RUPABAI D/O ANARSINGH W/O PURALAL LODHA, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE NIPANIYA TULA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
30. BADAMBAI D/O ANARSINGH W/O BALRAM LODHA, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE NIPANIYA TULA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
31. NANDUBAI W/O LATE ANARSINGH LODHA, AGED ABOUT 75 YEARS, OCCUPATION: NOTHING, R/O VILLAGE NIPANIYA TULA TEHSIL SARANGPUR DIST. RAJGARH (MADHYA PRADESH)
32. STATE OF M.P. THROUGH COLLECTOR RAJGARH (MADHYA PRADESH)
.....RESPONDENTS This appeal coming on for admission this day, the court passed the following:
ORDER
Records of both the Courts below have been received.
2. Heard learned counsel for the appellant on the question of admission.
3. Appellant / defendant No.1 has preferred this second appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred as 'C.P.C.') being aggrieved by the impugned judgment and decree dated 14/08/2023 passed by the I District Judge, Sarangpur, District Rajgarh (M.P.) in Regular Civil Appeal No.05/2019, thereby affirming the judgment and decree dated
20/12/2018 passed by the Additional Judge, Sarangpur to the Court of Civil Judge, Class I, Sarangpur, District Rajgarh (M.P.) in Civil Suit No.02-A/2018, whereby suit filed by the respondents / plaintiffs for declaration of title, possession, partition and mesne profit has been allowed.
4. The facts of the case in brief are that the plaintiffs are Bhumiswami of th the land mentioned in Schedule 'A' of the plaint and 1/5 share in the land mentioned in Schedule 'B'. Plaintiffs are the daughters of Devilal and defendants are the legal representatives of brother of Devilal. Devilal had no male child, so he had given his land to his brother's son for performing agricultural activities, but defendant No.1 had illegally mutated his name in the revenue record and denied the title of the plaintiffs. Hence, plaintiffs have filed this civil suit.
5. Defendant No.1 has denied all the plaint allegations by submitting that Devilal had taken defendant No.1 in adoption on 24/05/1973 and he used to look after Devilal and he has borne the expenses of marriage of plaintiff. Plaintiff has given consent for his mutation in the revenue records. The name of defendant No.1 was mutated in the revenue records vide order dated 16/05/1996 and defendant No.1 was in possession of the suit land during the life time of Devilal. Accordingly, prays for dismissal of the suit.
6. Defendants No.2, 3 and 17 have supported the plaintiffs' case by filing their written statement, but defendants No.4 to16 and 18 to 32 have been proceeding ex parte and they not filed their written statements.
7. On the aforesaid pleadings, the trial Court has framed issues and after recording the evidence and hearing both the parties, allowed the suit filed by the plaintiffs vide judgment and decree dated 20/12/2018. Being aggrieved by the said judgment and decree passed by the trial Court, appellants have preferred an appeal before the First Appellate Court and vide impugned judgment and decree dated 14/08/2023, the First Appellate Court after re-appreciating the entire evidence available on record has dismissed the appeal. Hence, present second appeal has been preferred before this Court.
8. Learned counsel for the appellant contended that the judgments and decrees passed by both the Courts below are illegal, perverse and arbitrary and not based upon the proper appreciation of the evidence. Both the Courts below have committed in allowing the civil suit against the appellants. Both the Courts below have failed to consider oral as well as documentary evidence available on record and ignored the pleading made by the appellant, therefore, findings of both the Courts below are perverse and against the evidence available on record. Thus, in view of the aforesaid, it is prayed that present second appeal deserves to be allowed on the substantial questions of law so proposed by the appellant.
9. I have gone though the impugned judgments and decrees passed by both the Courts below and perused the entire record with due care.
10. From perusal of the record, it appears that the statement of plaintiff Kalabai (PW-1) is well supported by the documentary evidence (Ex.-P/1 to P/15).
11. Appellant / defendant No.1 Hajarilal (DW-1) has been examined before the trial Court in which he categorically stated that he was adopted by Devilal on 24/05/1973 as per social customs, rituals and rights because the Devilal was not having any son and after the death of Devilal he has applied for mutation of the suit land in his name
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