IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI ON THE

16th OF FEBRUARY, 2024 SECOND APPEAL No. 308 of 2023 BETWEEN:-

1. MAHENDRA TIWARI S/O SHRI NATHURAM TIWARI, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE, R/O VILLAGE AGASOUD TEHSIL PATAN DISTRICT JABALPUR (MADHYA PRADESH)

2. SURENDRA TIWARI S/O SHRI NATHURAM TIWARI, AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE AGASOUD TEHSIL PATAN DISTRICT JABALPUR (MADHYA PRADESH)

3. VINOD TIWARI (DEAD) THROUGH ITS LEGAL REPRESENTATIVES (A) SMT. KRISHNA TIWARI D/O LATE VINOD TIWARI W/O SARVESH TIWARI, AGED ABOUT 25 YEARS, OCCUPATION: AGRICULTURE R/O NEAR KRISHI UPAJ MANDI JABALPUR (MADHYA PRADESH)

(B) SUBHAM TIWARI S/O SHRI LATE VINOD TIWARI, AGED ABOUT 19 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE AGASOUD TEHSIL PATAN DISTRICT JABALPUR (MADHYA PRADESH)

(C) SMT. NIDHI TIWARI W/O LATE VINOD TIWARI, AGED ABOUT 45 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE AGASOUD TEHSIL PATAN DISTRICT JABALPUR (MADHYA PRADESH)

Signature Not Verified Signed by: MONIKA

4. JITENDRA TIWARI S/O SHRI NATHURAM TIWARI, AGED ABOUT 40 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE AGASOUD TEHSIL PATAN DISTRICT JABALPUR (MADHYA PRADESH)

.....APPELLANTS (BY SHRI ASHISH TRIVEDI - ADVOCATE)

AND

1. RAJESH KUMAR JAIN S/O SURESH CHANDRA JAIN, AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS 597 SARAFA WARD, JABALPUR (MADHYA PRADESH)

2. STATE OF MADHYA PRADESH THROUGH COLLECTOR JABALPUR DISTRICT JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (SHRI RAM MILAN PRAJAPATI – PANEL LAWYER FOR THE STATE) This appeal coming on for admission this day, the court passed the following:

J U D G E M E N T

Heard on the question of admission.

2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants against the respondents being aggrieved by the impugned judgment and decree dated 13/1/2023 passed by the District Judge, Patan, Distt. Jabalpur in Civil Appeal No.127/2020 affirming the Judgment and decree dated 10/1/2017 passed by Civil Judge, Signature Not Verified Signed by: MONIKA Class – I Patan District Jabalpur (MP) in Regular Civil Suit No. 43A/2014 in respect of land bearing Khasra no.198/1 admeasuring 2.38 hectares situated at village Agasoud (hereinafter referred to as “suit land”).

3. It is submitted by learned counsel of appellants that the impugned judgment and decree passed by the learned courts below is apparently illegal and contrary to the law. The disputed property was ancestral and coparcenary property of joint Hindu family. The learned trial Court in paragraph 7 of the impugned judgment has admitted the fact that the suit property is proved to be ancestral property but it has not been considered as coparcenary property while the plaintiffs has proved their case that the suit property is coparcenary property by leading oral and documentary evidence. It is also proved that the sole ownership of father Nathuram even after the birth of the sons and the transfer of the said ancestral property by father Nathuram should not have been considered valid. There was illegal interference in the peaceful possession of appellants/plaintiffs by the respondent No.l, but same was not considered by the both the learned courts below. Therefore, the rejection of suit by both the learned courts below is illegal, perverse and liable to be set aside.

4. Per contra, learned counsel for the respondents opposed the second appeal.

Signature Not Verified Signed by: MONIKA

5. Heard learned counsel for the parties and perused the record.

6. The suit of the plaintiff is based on the assumption that the suit property is coparcenary property of joint Hindu family but it has to be proved by the plaintiff themselves that the property belonged to joint Hindu family and is coparcenary property. To prove this fact, it was incumbent on the plaintiffs to prove the facts regarding the nature of the property said to be coparcenary. First of all, there must be a joint Hindu family and th