IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA st ON THE 1 OF FEBRUARY, 2024 SECOND APPEAL No. 1060 of 2023 BETWEEN:-

1. DHARMENDRA S/O LATE GULAB SINGH RAJPUT, AGED ABOUT 41 YEARS, OCCUPATION:

AGRICULTURE NAGAVA TEH.SANAWAD (MADHYA PRADESH)

2. SMT. SHIVKAUR BAI W/O LATE GULAB SINGH, AGED ABOUT 73 YEARS, OCCUPATION:

AGRICULTURE NAGAVA TEH. SANAWAD DIST.

KHARGONE (MADHYA PRADESH)

.....APPELLANTS (BY MS SWATI SHARMA - ADVOCATE FOR THE APPELLANTS)

AND

1. VIJAY SINGH S/O LATE GULAB SINGH, AGED ABOUT 39 YEARS, OCCUPATION: AGRICULTURE KIRGAON POST MULTHAAN TEH.KASRAWAD (MADHYA PRADESH)

2. STATE OF M.P. THROUGH COLLECTOR KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (NONE FOR THE RESPONDENT NO.1)

( BY SHRI SHALABH SHARMA - GOVERNMENT ADVOCATE FOR THE RESPONDENT NO.2)

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

ORDER

This second appeal has been filed by the appellant/plaintiff being aggrieved with the judgment and decree passed on 25.01.2023 by Principal District Judge, West Nimar, District Mandleshwar in RCA/13/2020 by which the decree passed by Civil Judge Class-I, Kasrawad, District Mandleshwar in Regular Civil Suit No. 29-A/2017 dated 16.01.2020, the suit of the plaintiff appellant for declaration of tile, partition and injunction was dismissed.

2 . In nutshell the case of the plaintiff before the trial Court was that plaintiff No. 2, Smt Shivkaur Bai was a legally wedded wife of deceased Gulab Singh Rajput and plaintiff No. 1 Dharmendra is their son and the respondent/defendant No.1 Vijay Singh is the son of deceased Gulab Singh Rajput borne by the second wife of deceased Gulab Singh Rajput. The deceased Gulab Singh Rajput was the owner of the agricultural land bearing Survey No. 18/1/4 area 1.635 hectare situated at village Khirgaon Tehsil Kasrawad, District Mandleshwar and a house situated in village Khirgaon of 20 x 60 ft due to matrimonial dispute plaintiff No.2, Smt Shivkaur Bai left her husband and was residing in her parental home with his son Dharmendra. Gulab Singh expired in the year 2015. After his death the appellants requested to the respondent to give their 2/3 share in the agricultural land and the house, but he had denied and when they applied for the certified copy of the revenue papers they came to know that the defendant No.1 has mutated his name as an owner. Against that mutation an appeal was filed before SDO Revenue, Kasarwad as a Revenue Case No.03/A-6/appeal/2015-2016. The appeal was allowed and order was passed on 28.06.2017 and the mutation was dismissed and an order was passed to correct the entries in the Revenue records. Plaintiff also served a notice to the respondent No.1 on 05.09.2017 for the demand of their share. The defendant replied on 27.09.2017 and has not given their share in the disputed land and the house, hence the suit for the declaration of 2/3 share in the disputed property and for partition, possession of that property and decree for injunction was filed.

3. The defendant No.1 replied the suit and denied the plaint averments and has admitted that the plaintiffs have filed an appeal before SDO, Kasarawad and the order was passed on 28.06.2017 against him, but he has filed an appeal before Commissioner, Indore which is pending. He has further replied that he is the sole son of deceased Gulab Singh and deceased Laxmi Bai. The Gulab Singh in his lifetime has partitioned the whole agricultural land and the disputed land survey No.18/1/4 area 1.635 was given in his share and will was executed in his favour and on the basis of the will after death of Gulab Singh he became the owner of the house and prayed for dismissal of the suit.

4. On the basis of the pleadings, the trial Court framed the issues and recorded the evidence of both the parties and after hearing passed the judgment and decree by which the plaintiffs' suit was dismissed on the ground that they have failed to prove that plaintiff No.1 is the son of deceased Gulab Singh