IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI th ON THE 14 OF MARCH, 2024 SECOND APPEAL No. 351 of 2010 BETWEEN:-

SOHAN SINGH S/O JALAM SINGH, AGED ABOUT 64 Y E A R S , OCCUPATION: AGRICULTURIST R/O PARASAIKHURD TEH. REHALI DISTT. SAGAR M.P.

(MADHYA PRADESH)

.....APPELLANT (BY SHRI G. S. BAGHEL - ADVOCATE )

AND

1. BHABOOT SINGH (DEAD) SMT PREM BAI W/O LATE BHABHOOT, AGED ABOUT 80 YEARS, OCCUPATION: AGRICULTURIST R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

2. HANUMAT SINGH S/O LATE BHABHOOT, AGED ABOUT 60 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

3. SAHODRA BAI D/O LATE BHABHOOT W/O MAHENDRA SINGH, AGED ABOUT 55 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

4. RAJKUMARI D/O LATE BHABHOOT W/O HARI SINGH, AGED ABOUT 52 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

5. RAGHURAJ SINGH S/O LATE BHABHOOT, AGED ABOUT 49 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

6. MADAN SINGH S/O LATE BHABHOOT, AGED ABOUT 47 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

Signature Not Verified Signed by: AKANKSHA

7. RAJ BAI D/O LATE BHABHOOT, AGED ABOUT 44 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

8. PARAS SINGH S/O LATE BHABHOOT, AGED ABOUT 42 YEARS, R/O PARASAI KHURD TEHSIL REHILI DISTRICT SAGAR (MADHYA PRADESH)

STATE OF MADHYA PRADESH THROUGH

9. COLLECTOR, SAGAR, (M.P.).

.....RESPONDENTS (BY MS. AMRIT KAUR RUPRAH - ADVOCATE FOR THE LRS OF RESPONDENT NO. 1 AND SHRI SOMESH GUPTA - PANEL LAWYER)

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

ORDER

This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant (hereinafter referred to as “plaintiff”) against the respondent (hereinafter referred to as “defendants”) being aggrieved by the impugned judgment and decree dated 17.12.2009 passed by the Additional District Judge, Rehali District, Sagar in civil Appeal No.33- A/2008 arising out of the Judgment and decree dated 30.08.2007 passed by Civil Judge, Class – II, Rehali District Sagar in Civil suit No. 11-A/2006.

2. It is submitted by learned counsel of appellant/plaintiff that the impugned judgment and decree passed by the first appellate court is erroneous, illegal and against the settled principles of law. The first appellate court has not appreciated the evidence on the record and wrongly held that the appellant has failed to prove the suit property as joint ancestral property of the appellant and respondent. The first appellate court also erred in holding that partition deed dated 21.10.1986 found proved that the adverse possession has not found proved of respondent no.1. It is also submitted by the learned counsel of Signature Not Verified Signed by: AKANKSHA appellant that the first appellate court erred in holding that burden of proof that suit property is a joint ancestral property of the appellant and respondent was on the appellant. The name of the appellant was recorded in sale deed and revenue record being the brother of the respondent but the plea in this regard has not been accepted. The partition deed Ex. D-1 is not admissible in evidence and no partition has taken place between the parties. If it is admissible then there is no evidence to act upon it. Therefore prays to set aside the impugned judgment and decree and to decree the suit.

3. Per contra counsel for the respondents opposes the prayer and prays for dismissal of this appeal.

4. Having heard the learned counsel for the parties and perusal of record, it is found that since the plaintiff has come up with the case that the suit property is ancestral property therefore the burden was on plaintiff himself to prove that the suit property is ancestral property and that he has equal share with respondent no.1 defendant. However, plaintiff is utterly failed in proving so. In this regard the courts below h