IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

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ON THE 25 OF NOVEMBER, 2025 SECOND APPEAL No. 439 of 2009 GOPIBAI Versus NATHULAL AND OTHERS Appearance:

Shri Santosh Agrawal - Advocate for appellant.

Shri Pawan Vijaywargiya - Advocate for respondent No.1.

State- G.K. Agrawal - G.A. for respondent No.2/State.

ORDER (1) This second appeal has been filed against the judgment and decree dated 9/7/2009 passed by District Judge Sheopur in Civil Appeal No.37A/2007, by which the judgment and decree dated 31/10/2007 passed by Civil Judge Class 1, Sheopur, in civil suit No.174A/2003 was set aside.

(2) Appellant is the plaintiff who lost her suit, but suffered a decree in a counterclaim filed by defendant No.1. Counterclaim was allowed by Trial Court, and it was held that defendant Nos. 1 and 2 have half share each in the disputed property. Defendant No. 2 Ganeshlal had entered into compromise with appellant, therefore, the Trial Court held that appellant is the owner of half of the disputed property by virtue of compromise. However, the Appellate Court held that compromise with defendant No. 2 Ganeshlal was not in accordance with law, therefore, it was held that appellant has no share, but defendants No. 1 and 2 have half share each in the disputed property.

(3) Heard on the question of admission.

(4) Undisputed family tree is as under:

Nenga (Died after marriage of Dhanni)

|

Champa Bai (1st Wife)

_______|_______________________________________ |_________________ |

| | Devya (2nd husband of Champa Bai)

Dhanna Dhanni __|_____________ |_____________________________ | |

| | | Sukkha Bhuri Bai Kesar (Dead) Ganga (Dead) Gopibai (Plaintiff) | |

Premi Bai (W/o Sukha) |

__________|___________ | |

Natthulal (Defendant No. 1) Ganeshlal (Defendant No. 2)

(5) The facts necessary for disposal of present appeal, in short, are that plaintiff/appellant filed a suit for declaration of title and permanent injunction in respect of Survey No. 62/1 area 11 bigha and 6 biswa situated in village Jaida, District Sheopur. Aforesaid property is the disputed property. It is the case of plaintiff that Smt. Premi Bai, who was the mother of plaintiff, was the owner and in possession of the property in dispute. Smt. Premi Bai has already expired. Name of Smt. Premi Bai was recorded in revenue record of Samvat 2055 as Bhumiswami and in possession. Originally, it was the case of plaintiff that after the marriage of plaintiff, Smt. Premi Bai kept the plaintiff and her husband with her so that they can take care of the property belonging to Premi Bai, and the land can be cultivated in proper manner. Plaintiff and her husband took care of her mother Premi Bai during her lifetime and also remained in cultivating possession of the land in dispute. The expenses of funeral, etc., of late Premi Bai were also borne by plaintiff and her husband. It was the intentions of Premi Bai that after her death, no one should stake claim by projecting himself to be a legal representative, therefore, Premi Bai executed a Will in favor of plaintiff on 07/10/1997. The Will was also got duly registered, and by Will dated 07/10/1997, earlier Will dated 04/07/1974 was cancelled. It is the case of plaintiff that after the death of Premi Bai on 12/05/1999, Will dated 07/10/1997 came into force, and accordingly, plaintiff has become the Bhumiswami of land in question, and at present, crop of Arhar sown by the plaintiff is standing on the field. Plaintiff filed an application for mutation of her name on the basis of Will executed by her mother, which was registered as Case No. 27/98-99/A-6. Defendant No. 1 filed his objection, but defendant No. 2 did not raise any objection. The Tahsildar, after accepting the objection raised by defendants, illegally passed an order of mutation in favor of defendants on 22/09/2000, against which plaintiff preferred Appeal No. 3/2000-2001/A.Ma., which too was dismissed by the SDO by order dated 11/12/2000, against which a second appeal is p