IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL th ON THE 17 OF JANUARY, 2024 SECOND APPEAL No. 88 OF 2022 BETWEEN:-

1. SUSHILA W/O LATE SHESHRAO BELSARE, AGED ABOUT 65 YEARS, OCCUPATION: HOUSEWIFE BERDI, TEH.SAUNSAR (MADHYA PRADESH)

2. PRAMOD S/O LATE SHESHRAO BELSARE, AGED ABOUT 32 YEARS, OCCUPATION: NILL R/O BERDI, TAHSIL SAUNSAR, DISTT.

CHIINDWARA (MADHYA PRADESH)

3. VINOD S/O LATE SHESHRAO BELSARE, AGED ABOUT 30 YEARS, OCCUPATION: NILL R/O BERDI, TAHSIL SAUNSAR, DISTT.

CHIINDWARA (MADHYA PRADESH)

4. PRAMILA S/O LATE SHESHRAO BELSARE, AGED ABOUT 45 YEARS, OCCUPATION: NILL R/O BETUL PATANSAWANGI, TAHSIL SAVNER, DISTT NAGPUR (MAHARASHTRA)

5. JAYSHREE S/O LATE SHESHRAO BELSARE, AGED ABOUT 35 YEARS, OCCUPATION: NILL R/O KHUBALA, TAHSIL SAVNER, DISTT. NAGPUR (MAHARASHTRA)

6. SHANTARAM S/O LATE CHINTAMAN BELSARE, AGED ABOUT 30 YEARS, OCCUPATION: NILL R/O BERDI, TAHSIL SAUNSAR, DISTT. CHIINDWARA (MADHYA PRADESH)

.….APPELLANTS Signature Not Verified Signed by: SARSWATI (BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)

AND

1. GOKULI D/O MORBA BELSARE, AGED ABOUT 53 YEARS, KABAR PIPLA, TEH.SAUNSAR (MADHYA PRADESH)

2. MANJULABAI W/O MORBA MELSARE, AGED ABOUT 83 YEARS, OCCUPATION: NILL R/O KABAR PIPLA TAHSIL SAUSAR, DISTT. CHHINDWARA (MADHYA PRADESH)

3. BHAURAO S/O MORBA BELSARE, AGED ABOUT 68 YEARS, OCCUPATION: NILL R/O TIGAON TAHSIL PANDURNA, DISTT. CHHINDWARA (MADHYA PRADESH)

4. BEBIBAI W/O PANDURAND BELSARE, AGED ABOUT 43 YEARS, OCCUPATION: NILL R/O UBHEGAON TAHSIL BICHUA, DISTT.

CHHINDEARE (MADHYA PRADESH)

.....RESPONDENTS (NONE)

_______________________________________________________________

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

J U D G E M E N T

This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 30.11.2021 passed by Additional District Judge to the Court of District Judge, Saunsar, District Signature Not Verified Signed by: SARSWATI Chhindwara (MP) in regular Civil Appeal RCA No.59/2016, arising out of the judgment and decree dated 29.01.2016 passed in Civil Suit No.119-A/2013.

2. Brief facts of the case are that plaintiffs filed a suit for deceleration of title and permanent injunction, on the ground that they are owner and in possession of suit property and they are cultivating suit property since last 40 years peacefully. Plaintiffs as well as defendants have been in possession of suit property as per earlier partition and this partition was later on reduced into writing dated 14.05.1999. Therefore, defendants are stopped from again filing suit for partition. Plaintiffs have received suit property in the partition effected between plaintiff and defendant.

3. Learned counsel for the appellants submits that Vithoba was original owner of suit property. Vithoba has three sons, namely, Chintaman, Daulat and Morba. Plaintiffs are sons of Chinaman whereas defendants No.1 to 3 are sons/wife on Morba and remaining are successor of Daulat. On 14.05.1999 written partition took place between Chintaman, Daulat and Morba and in above partition, plaintiffs got the suit property. It is also urged that on the one hand, trial Court dismissed plaintiff’s application under Order 11 Rule 12 of CPC and application under Section 65 of Evidence Act . On the other hand, trial Court also concluded that plaintiffs failed to prove partition dated 14.05.1999. It is also urged that nature of documents/construction of documents is a substantial Signature Not Verified Signed by: SARSWATI question of law. In this connections, he has relied upon P.Chandrasekharan Vs. S.Kanakarajan, reported in (2007) 5 SCC 669. It is also urged that Appellate Court has wrongly dismissed plaintiff’s application under Order 41 Rule 27 of CPC. Learned counsel for appellants, after relying on M.B.Ramesh (Dead) by Lrs. Vs. K.M.Veeraje URS (Dead) by Lrs. And anothers, reported in (2013) 7 SCC 490, submits that appellate Court has held that plaintiff is in