1 S.A. No. 230/1996 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 230/1996 ......... Appellant : Nand Kishore (since dead) Plaintiff through his LRs (i) Sardar Patel, aged about 60 years, (ii) Girdhar Das Patel, aged about 55 years, (iii) Umashankar Patel, aged about 53 years, (iv) Suresh Patel, aged about 47 years, Sons of the late Nand Kishore, Residents of Village Sodalpur, Tahsil Timarni, District Harda Versus .......Respondents : 1. Ramkrishna (since dead) Defendants through his LRs (a) Smt. Sumati Patel, aged about 55 years, wife of late Ramkrishna Patel, (b) Ritesh Patel, aged about 42 years, son of late Ramkrishna Patel, Both residents of near Gujar Boarding, Harda. 2. The State of M.P., through the Collector, District Hoshangabad ................................................................................................ Appellant - Shri Imtiaz Hussain, Advocate Respondent No1 - Shri A.K. Choubey, Advocate. Respondent No.2 - Shri Akhilesh Singh, Panel Lawyer 2 S.A. No. 230/1996 ............................................................................................... Date of hearing : 05/08/2011 Date of judgment : /08/2011 J U D G M E N T ( /08/2011) 1. This second appeal has been filed by plaintiff Nand Kishore against the judgment of reversal passed by learned First Appellate Court allowing the appeal of defendant and thereby dismissed the suit of plaintiff. 2. The admitted fact is that plaintiff Nand Kishore is the uncle of defendant Ramkrishna. This is also not in dispute that both of them had bought the property in dispute on 9.1.1963 vide registered sale deed for a consideration of Rs.6000/-. 3. In brief, the suit of the plaintiff which was filed long back on 27.7.1985 (I.e. more than 26 years ago) is that after purchasing the suit property vide registered sale deed dated 9.1.1963 by plaintiff and defendant on 19.6.1969, a partition took place between them which was oral and area 2.13 acre fell in the share of plaintiff having four boundaries eastern side house of Amardas son of Gopal Das and Ganesh Das; western side public lane; northern side Temagaon Road and southern side remaining portion of 3 S.A. No. 230/1996 disputed property which fell in the share of defendant Ramkrishna. 4. It has been further pleaded by plaintiff that after partition respected parties are possessing the property which fell in their share and are utilizing the same for their own use. By amending the plaint it has been further pleaded by the plaintiff that in a notice sent by defendant through his counsel on 23.7.1971 he had admitted the factum of partition which took place between them and thereafter in the revenue case 3-A/13-70-71 in the Court of Nayab Tahsildar, Harda the defendant further admitted the partition in its application dated 24.7.1971. Further it has been pleaded by the plaintiff that in the appeal before the Sub Divisional Officer, the said authority on 26.5.1985 decided the appeal by jeopardizing the right of the plaintiff. Hence the present suit has been filed by him. It has been further averred that on 11.7.1985 the defendant tried to interfere in the possession of the plaintiff's as a result of which the present suit for declaration and injunction is being filed by him arraying Ramkrishna as defendant no.1 and the State of M.P. has been arrayed as formal defendant. Hence, it has been prayed that the suit property 4 S.A. No. 230/1996 mentioned in the plaint be held to be of plaintiff and the defendant be restrained from interfering in his possession. 5. The plaint averments were refuted by defendant by filing written statement although the factum of purchasing the property on 9.1.1963 for a consideration of Rs.6000/- vide registered sale deed has been admitted but the factum of partition held on 19.6.1969 has been denied and further it has been denied that the suit property mentioned in the plaint fell in the share of plaintiff in pursuance to the said oral partition. The factum of sending notice on behalf of defendant on 23.7.1971 by his counsel has been denied. According to the defendant, an application was submitted by plaintiff before Revenue Court in which he resisted the so called partition which took place between him and the plaintiff and further prayed that the partition may properly be made. 6. It is the further case of defendant that the orders of Tahsildar and the Sub Divisional Officer were assailed by filing appeal before the Revenue Commissioner, Hoshangabad Division, Hoshangabad (Appeal No. 16/80-81) in which Revenue Commissioner passed an order on 20.3.1982 which attained finality and 5 S.A. No. 230/1996 accordingly the land in question has been partitioned in the manner that the Samadhi of 'Kannalya Baba' has been divided into two equal positions. One portion is falling on northern side while other portion is falling on the southern side. The western side of the land admeasuring 2.13 acres was given to the plaintiff and the eastern side of the land admeasuring 2.13 acres fell in the share of defendant. Eventually, an order was passed on 29.6.1983 which was affirmed in the appeal by the Sub Divisional Officer on 24.6.1985. Hence, it has been prayed that since the partition has been effected in pursuance to the order of the Revenue Court this suit is not maintainable and the plaintiff is estopped from challenging the partition. On these premised pleadings in the written statement it has been prayed that the suit be dismissed. 7. Learned Trial Court after framing necessary issues recorded the evidence of the parties and decreed the suit of the plaintiff. However, the judgment of the learned Trial Court has been reversed in first appeal filed by defendant Ramkrishna and the learned First Appellate Court has dismissed the suit by passing impugned judgment and decree. 6 S.A. No. 230/1996 8. In this manner this second appeal has been filed by the plaintiff. 9. This Court on 28.6.1996 admitted the appeal on the following substantial question of law:- “Whether on the facts and in the circumstances of the case the court below was justified in holding that the suit property was not partitioned between the parties?” 10. The contention of Shri Imtiaz Hussain, learned counsel for the appellant is that the findings rendered by learned First Appellate Court is perverse inasmuch as it had failed to hold that partition took place between the parties orally although it has been so admitted by the defendant in the Revenue Court. By inviting my attention to the testimony of defendant Ramkrishna when he appeared in the Court as DW-1 it has been contended by learned counsel that if the admission made by him in his evidence is considered on the touchstone and anvil of the four boundaries given by the plaintiff in the plaint it would reveal that the defendant is admitting the claim of plaintiff claiming that the suit property fell in his share. Hence it has been prayed by learned counsel that by allowing this appeal the impugned judgment and decree passed by learned First Appellate Court be set 7 S.A. No. 230/1996 aside and the judgment and decree passed by the learned Trial Court be restored. 11. Combating the aforesaid submissions it has been put forth by Shri A.K. Choubey, learned counsel for the respondents that the finding rendered by the learned First Appellate Court is a pure finding of fact and cannot be interfered in this second appeal. Learned counsel further submits that appellant is not in possession of the suit property, therefore, his suit is hit by Section 34 of the Specific Relief Act. In this context, learned counsel has placed heavy reliance on a decision of Supreme Court Gian Kaur vs. Raghubir Singh, 2011(4) SCC 567. Learned counsel further submits that learned First Appellate Court after considering the evidence of the parties, pleadings as well as the order passed by the Revenue Court has rightly dismissed the suit and there is no scope of any interference and, therefore, this appeal be dismissed. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law framed:- 13. Before answering the substantial question of law, it would be apposite to mention that the original plaintiff Nand 8 S.A. No. 230/1996 Kishore and defendant Ramkrishna had died during the pendency of the suit and their LRs have been brought on record. 14. The pivotal point to be decided in this appeal is whether the finding rendered by learned First Appellate Court is perverse inasmuch as it had ignored the material evidence of defendant admitting that suit property fell in the share of plaintiff. In this context, the evidence of defendant Ramkrishna is very material. In para 3 of his examination-in-chief he is saying that in pursuant to the order of the Revenue Commissioner which was passed in the year 1982 the partition order effected at the spot in the year 1983 in terms of the order passed by Revenue Commissioner and accordingly the eastern side of the plot admeasuring 2.13 acres fell in his share and remaining 2.13 acres fell in the share of his uncle (plaintiff). Earlier when the property in dispute was joint its survey number was 391/1 and after partition the area which fell in his share became survey no. 391/4 while the portion which fell in the share of his uncle-plaintiff has become survey number 391/5. Further he has stated in his testimony that the portion which fell in his share on its northern side the road 9 S.A. No. 230/1996 of Tekna Betul is in existence; on the eastern side the property of Amardas; on the southern side the plot of one Gadre and the plot of Gendalal Dhobi are in existence and on the western side the plot of Nand Kishore (plaintff) exists. In cross examination he has admitted that in the year 1971 a case was initiated on his application in the Revenue Court in respect to approach to his field. At that juncture, the four boundaries of his share was eastern side Amardas and Godarsaha; western side the property fell in the share of Nand Kishore (plaintiff) thereafter public lane; on northern side some portion of Nand Kishore and some portion of his portion adjoining to the Tekna Road; on the southern side land of Gendalal Dhobi. In para 12 of his cross examination defendant is admitting that at that juncture the four boundaries of plaintiff were eastern side some portion which fell in the share of this witness (defendant); on the western side public lane; on the northern side the portion on which Samadhi is in existence and some portion of defendant; on the southern side the portion of defendant. Further he has stated that the partition which took place in the year 1970 was in regard to cutting the grass only. 10 S.A. No. 230/1996 15. It would be apt to keep four boundaries given by the plaintiff in the plaint in respect to the suit property and which has been admitted by the defendant in his examination-in- chief para 1. Both of them read, thus:- Four boundaries given in the plaint Four boundaries admitted by the defendant in his examination-in- chief East- Amardas son of Gopal Das East- Gopaldas (i.e. father of Amardas West-public lane West-Approach way to the Village (I.e. public lane) North-Temagaon road, North-Temagaon Road South- The portion which fell in the South-The portion which fell in the share of defendant Ram Krishna share of Ram Krishna If the admission of defendant in para 1 of his examination- in-chief and the four boundaries of the suit property stated by him in the said para is kept in juxtaposition to each other and on the touchstone and anvil of the four boundaries pleaded in the plaint, it would reveal that indeed the suit property fell in the share of plaintiff. 16. Thus, the plaintiff's pleading in para 1 of the plaint that the suit property which fell in his share and the four boundaries which are given by him in para 1 of the plaint is same which the defendant had admitted in his examination- in-chief, para 3. The purpose of quoting the four boundaries 11 S.A. No. 230/1996 of the suit property pleaded by the plaintiff which fell in his share in the plaint as well as the admission of the defendant herein above is that indeed defendant is admitting the claim of plaintiff that the property which fell in his (plaintiff's) share, the description whereof has been mentioned in the plaint, is admitted to him. 17. This important piece of evidence and admission of defendant in his testimony which is the turning point of the case has been misconstrued by the learned First Appellate Court by indulging itself in respect to cutting of the grass. Indeed, the suit property which fell in the share of plaintiff pleaded by him in para 1 of the plaint should be kept in juxtaposition with the admission made by defendant Ramkrishna and if it would have been done so, the impugned judgment would not have been passed because there is a clear admission of the defendant (since he has stated in his examination-in-chief) admitting the same four boundaries of the suit property which the plaintiff has pleaded in para 1 of his plaint. Thus, I am of the view that the learned First Appellate Court was not justified in the facts and circumstances of the case in holding that the suit 12 S.A. No. 230/1996 property was not partitioned since the defendant himself has admitted this fact in his examination-in-chief. 18. The decision of Gian Kaur (supra) placed reliance by learned counsel for the defendant speaks about the interference of this Court in respect of finding of fact but if the finding of fact has been arrived at by ignoring material piece of evidence i.e. sheer admission of defendant which is the turning point of the case, I am of the view that the said finding has been arrived by ignoring the admission of defendant and therefore this Court is not debarred from setting aside that finding. 19. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the learned first Appellate Court is hereby set aside and the suit of plaintiff is hereby decreed. The judgment and decree passed by the learned Trial Court is restored. 20. Looking to the facts and circumstances of the case, the parties are hereby directed to bear their own costs. Counsel fee accordingly, if pre-certified. (A.K. SHRIVASTAVA) Judge rao 13 S.A. No. 230/1996 rao 14 S.A. No. 230/1996