IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 16^th OF FEBRUARY, 2024 SECOND APPEAL No.577 of 2017 BETWEEN:-

LATE BHAGWAN SINGH PARIHAR THR. LRS.

1(A) SMT. KANTI PARIHAR W/O LATE BHAGWAN SINGH RAJPOOT, AGED ABOUT 45 YEARS, VILLAGE BICHUA TEH. CHAURAI DISTT.

CHHINDWARA (MADHYA PRADESH)

1(B) SUJEET SINGH, AGED ABOUT 30 YEARS, SON OF LATE BHAGWAN SINGH RAJPOOT RESIDENT OF VILLAGE-BICHUA TEHSIL-

CHAURAI, DISTRICT-CHHINDWARA (M.P.)

1(C) VIKRAM SINGH S/O LATE BHAGWAN SINGH RAJPOOT, AGED ABOUT 28 YEARS, VILLAGE BICHUA, TEHSIL CHAURAI, DISTT.

CHHINDWARA (MP) (MADHYA PRADESH)

1(D) JOGENDAR SINGH S/O LATE BHAGWAN SINGH RAJPOOT, AGED ABOUT 26 YEARS, VILLAGE BICHUA, TEHSIL CHAURAI, DISTT.

CHHINDWARA (MP) (MADHYA PRADESH)

.....APPELLANTS (BY SHRI PRADEEP NAVERIYA AND SHRI PRAVESH NAVERIYA, ADVOCATES)

AND

1. BHAGWATI BAI @ KANTA BAI D/O BABBU SINGH RAJPOOT, AGED ABOUT 50 YEARS, OCCUPATION: THR. CHIEF EXECUTIVE OFFICER VILLAGE SAUSAR TEH. SAUSAR DISTT. CHHINDWARA (MADHYA PRADESH) )

2. BAIJANTI BAI D/O BABBU SINGH RAJPUT W/O CHHOTE SINGH THAKUR, AGED ABOUT 60 YEARS, SHRIVASTAVA COLONY TEH.AND DIST. CHHINDWARA (MADHYA PRADESH)

3. RAVI KUMAR S/O RAMSINGH RAJPOOT, AGED ABOUT 3 YEARS, BEHIND BADI MATA MANDIR, (MADHYA PRADESH)

4. STATE OF MADHYA PRADESH THROUGH COLLECTOR CHHINDWARA CHHINDWARA (MADHYA PRADESH)

5. PATWARI, VILL. BICHHUA, POST PIPARIYA MANSINGH, CHAURAI CHHINDWARA (MADHYA PRADESH) .....RESPONDENTS (BY SHRI PRAMOD KUMAR SAHU, ADVOCATE FOR RESPONDENT 1)

(BY SHIR VIJAY KUMAR SHUKLA, ADVOCATE FOR RESPONDENT 3)

……………………………………………………………………………………………………………………………………………….

This appeal coming on for admission, this day, the court passed the following:

ORDER

This second appeal has been preferred by the appellants/LRs of original plaintiff-Bhagwan Singh Parihar, challenging the judgment & decree dtd. 23.02.2017 passed by Additional District Judge, Amarwara, District Chhindwara in Civil Appeal No. 1A/2014 affirming the judgment & decree dtd. 29.11.2013 passed by Additional Civil Judge to the Court of 1st Civil Judge Class-I, Chhindwara in Civil Suit No.60A/2013 whereby plaintiff's suit for declaration of title, for declaring the order of partition passed in case no. 191/A-27/04-05 null & void and for permanent injunction has been dismissed and counter claim for possession filed by defendants 1 & 3-Smt. Bhagwati Bai and Ravi Kumar (son of another daughter Devki), has been decreed.

2. Learned counsel for the appellants/plaintiff submits that the defendants 1 & 3 Bhagwati Bai and Ravi Kumar have no right in the suit property because even after death of father Babbu Singh (who died 30 years ago from the date of suit i.e. 30.03.2012) and mother Bhaga Bai (who died on 02.03.1998), the defendants did not file any suit for declaration and recovery of possession. He submits that due to death of father prior to amendment in section 6 of the Hindu Succession Act, 1956, the defendants are not entitled to any share in the light of decision of Supreme Court in the case of Prakash and others vs. Phulavati and others (2016) 2 SCC 36. Learned counsel submits that being in possession of the land for more than 12 years, the plaintiff acquired title by adverse possession and the order of partition dtd. 20.08.2007 passed in the aforesaid case is not sustainable because the plaintiff never consented to the partition and on the date when the application for partition was filed, the defendants 1 & 3 were not recorded bhoomiswami and the suit land was recorded exclusively in the name of plaintiff Bhagwan Singh Parihar, but Courts below without taking into consideration this aspect of the matter, have dismissed the suit and decreed the counter claim. With these submissions, he prays for admission of the second appeal.

3. Learned counsel appearing for the respondents 1 & 3 support the impugned judgment & decree passed by Courts below and prays for dismissal of the second appeal.

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

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