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RAb^llE jy, g ,.U^d OQs^pl JLtttd 00=0011 - faMJbdS MyiK UBS t—hJP^ EQ/iii^t AUiiy. 4^ l^ie fijfiv. ttiy-Laji siif UAIiSh Siftj,'.la^fcJit- .U'Sftto *tOOZ/ffi^l3 -Ai.rf sifi Aiafite JA.I.B Mjsifij.s^a *e-p 'BVUJUJIS JU-at^ BAiJP^fE WjaK M36te Ufe£ ' ' ':'::*)aVa€".S^"J^^';i w/o\/s sibssj. uy apy. ay.iji ^ sooz/ie-fitT isiirf jayiE rty.ty. J.A.I.S' MMS /^^..- •'*': . ~ " ~ ' -i&^a'UtP.l.M&s. JJirty. UaS iitt^ hU.lU.te". .H^Bs.B ^ l»^}fiJ-fi^ MSfate. 001 1M5 i*i^3 'a^a» <vaw ^- 's-^i^-ya.H^^ -z- XI-HC-22 T^'^IWM'M, »'n1<rt*i6, I<«'iiuy 3TI^?T 'q=ra? / _S:^...S3/^ WWll sb»llch 200 'f^^N' sn^rw T<-u^ sf^y fli+11<h W ..):- ri y, *-..(_^. ./ ^.02.2005:- Shri Sree Kumar Agrawal, Agrawal, learned counsel for theappl Shri J.R.Verma, learned coun) The instant Second appj appellants/defendants No. 3 and passed byfirstA.D.J., Baloda Bazaj which the appeat preferred bythea| judgment and decree passed bythe RespondehtNo. 1 (hereinafts for deelaration and perpetual ir property is a coparcenary property Delaou. The appellants and responc No. 2 is the brotherofthe plaintiff. land each to the plaintiff and the di his lifetime and in the remaining tw defendant No. 1 have possession. 4 were creating dispute,regarding members of the coparcenary prof partition over the suit property and was entitled for half share on the si be restrained from interfering withth *i'i|i<ri''i1-f ^Wvii ^^S <Fai<si< ^; sipOT sn^r leamed Sr.Advocate with Shri Akhil ellants. sel for the caveator. sal has been preferred by the 4 against the impugned judgement in Civil Appeal No. 49-A/2003 and by ppellants has been dismissedand the rial Court has been confirmed. (r referred to as 'plaintiff) fileda suit junction and partition against the appellants and respondent No.2 ahd 3 pn the averment that the suit recorded in the name of their father |ent No. 3 are sisters and respondent pather Delaou had given four acres of sjfendant No. 1 on the partition during f^> acres of land also the plaintiff and lowever, the defendants No. 2, 3 and |the suit property and have initiated proceedings before the Revenue Co^irts. It was also pleaded by learned counsel for the appellants that thou;lh defendants No. 2 to 4 are not the i^rty and do not have any right of flhe reliefwas sought that the plaintiff ijt property and the defendants shoutd 4 possession of the plaintiff and share . ; [^ftsiFOT ^ XI-HC-22 I sn^T^i ft-fi.* sv^s a)^ «[?n '.-:;.....-: •5F5? -MWicl''1, ^^yid, I'K'lwy 3TI^?T 'q^T *<IICTI aiiich __^.:.^.^: 200 i^^s' sn^i'B^iWdf??! —2.- be fixed. Defendant No. 1 namely] he is also entitled for half share in to 4 hase.no right over the suit proj application of defendants No. 3 an^ order dated 10.03.1997 passed in had partitioned the property whiclt S. D.0., Bhatapara vide appellants/defendants 3 and 4 in| exucw^^ applisatign^ of the plaint and st^ coparcenary property and they als< land each to plaintiff and defendant was submitted that the defendants of the suit property and their namejs records. The Nayab Tehasildar, Bt had partitioned the suit property an^ dsfendants No. 3 and 4 are in posse|ssion. However, it was admittedl 10.03.1997 ofAnnexure D/3 has bejen Bhatapara and even then, in corrj defendants No. 3 and 4 have Beeh 23.10.1997. They also pleaded thajt Revenue Case No. 7-A/27 year 1; passed an order to the detriment of|the against which they preferred an app^al pending. Onthe basis of the plea< +l<<[<!l'Iil-l IIHdl''? feIA AtSK ^T 3lPaH 3D^[ |Bahas Ram in his reply submitted that fhe suit property and defendants No. 2 >erty. He further pleaded that on the 4, Nayab Tehasildar, Bhatapara vide fjtevenue Case No.S-A/27 year 1996-97 was subsequently set aside by the jrder dated 27.02.T999. The there written statement denied the ^ted thatj suit property was not a denied the allotment of four acres of |^o. 1 during the life time of Delaou. It |and plaintiff were jointly in possession e|s have been recorded in theRevenue latapara, vide order dated 10.03.1997 in pursuance of-the said partition the that the order of partition dated |en set aside in appeal by the S.D.0., (pliance of the above partition order put in possession vide order dated the Nayab Tehasildar, Bhatapara in 199-00, Bahas Ram Vs. Manohar had interest of defendants No. 3 and 4 ^al before S.D.0., Bhatapara which is ^ljngs of both the parties issues were J1[ft^ ^Pa'^ XI-HC-22 7^-aiPTRPT, '^tlWS, ftcll'My sntw^i 1?;IP?3Ilt?I ^)*1 lch WHCTI 0*11'*) 3n^?T -q3ra?_ . ^A'S^/S1_^ -260- •M (c|*<{8T' 311^1'SSitWdfCT ._ framed and learned Civil Judge, C property coparcenary properi:y and 4il<<Iddl-f HW<A"'? ft'st <I'i<4i< •^ aifigir 311^1 lass-11, Baloda Bazar, also held the partially decreed the suit holding that the plaintiffwasentitledforl/3"1 sh^e and1/5th of 1/3Tdshare to the suit property whereas defendant Nos. 2 tb 4 were entitled for 1/5 of the 1/3f share each to the suit property. The|defendants No. 3 and 4 preferred an appeal and the learned First Appell^te Court dismissed the appeal and conflrmed the judgment and decree pd ssedbythe leamed Civil Judge. Learned counsel for the appell|ints/defendants 3 and 4 assaited the concurrent findings of both the CQUrt^ betow basically on the ground that in pursuance of the partition order|dated 10.03.1997 which has been exhibited as Ex. D/3, the appeliants ^ with plaintiffs/defendants No. 1 and 2| and 4 had submitted in their written :th ft/ere allotted 1/5'" share eaeh along and the plaintiff and defendants 2, 3 fetatement vide document of Ex. D/1 and D/2 by which they had express^d that the suit property has been partitioned and the defendants Nos. ^ to 4 have moved an application for possession in the Court of Nayab objection against the delivery of poss^ the light of documents of Annexure D suit property effected and accepted t plaintiff has waived this right to rai; separate suit. 'ehasildar and the plaintiff has no 'ssion to the defendants and thus in '1, D/2 and D/3, the partition of the y the respondents/plaintiffsand the e the question of title for filing a 1 have heard learned counsel fc|r the appellants/defendants 3 and 4 and have also gone through the pfeadings of bqth the parties and documents filed by the respective parti4s. ^ w XI-HC-22 3IliRl^R R'ti.'h SV^V sh+li^ flf^t v-^' ^^ '<<1<11<'1*1, 8ia'l'y*i<o, (°«ii'y'i< W*l(»tlth*ll<h 3H^?T 'q^; _&.^:.^?.^..^ 280- fc|'b<{8T" 31ACT ^aiw 'afOT _ ^ Though the defendants disp^t the suit property was the coparcer^ary this regard by the trial Court whic| appellate Court is based on Revenuj by the defendants. Therefore, the the suit property was a coparcenarst the counsel for the appellants has submissionof the appellants that in| 10.03.1997 of Annexure D/3 and by document of Annexures D/1 ani waived his right to raise the que^t following reasons; (i) that even according | statements the order of Annexure Di the S.D.0. and therefore, the suit property partitioned under Sect can not beaccepted. The other relia|i no force because from perusal of t[ the said documents do not referto applications were filed and the exten|i and 4. Thus, documents do not shol defendantsNo. 3 and 4 and that in pursuance bf the partition allotted share with the consent of document of EX.P/8 which is certifield recorded in the Court of Additionil (tedthe contention of the plaintiff that property. However, the finding in was subsequently confirmed by the records which has not been rebutted findings of both the Courts below that property requires no interference and hot challenged the above finding. The Ipursuance of the partition orderdated su|3sequent coosent given by the plaintiff D/2 on 27.08.1997, the plaintiff has ^tion of title is not accepted for the thereftre 'bl'silft^l-l ^WvS 4fv6 At^K '^3lfWT31I^T subnhission to the averments in the written |3 has been set aside in the appeal by of the appellants that the said (on 178 of M.P.Land Revenue Gode ilnce on document of D/1 , D/2 has also ;he above documents it is evident that •levenue case number in which the said t of share allotted to defendants No. 3 tv as to what share was allotted to the these documents do not establish ^der of Ex.D/3,the appetlants were the plaintiff. Apart from this, the copy of the order dated 09.05,2002 Tehasildar, Bhatafi.ara in; Revenue 1 •• • ' : '. [?t^ ^Hsi^. a^-t^miwa&wsoM-.^m / 1 XI-HC-22 sii^i^r. R-lii* Sf^l ^iH ^lt s" • r~ s • '"r .<-, t\ liilj Itili Ks ^JL^ li!I.?ii-'»'l I IFf -TBg'^fpiRpt, ^gtwis^'f^TOy WWII %)<<1<*> sn^r IRR? ^s;a^.. ^ l^^ff' Case No. 6-A/27 year 99-2000, in appear that some proceedings with was initiated at the instance of the was stayed on the ground that before the Civil Judge and therefo stayed. These documents appellants/defendants. the case ofChitrautin Vs. Manohar, it fespect to partition was pending which ippellants and the above proceedings cfspute regarding partition is pending [•e the above proceedings shoutd be ras not been denied by the Thus, considering the materii opinion that judgment and deeree Baloda Bazar which Awas confirmed finding offacts and no substantial qu this second appeal and the appeal accordinglydismissed at this admissii However, looking the facts shall be no order as to costs. •til<li<"i''il-1 11*1<A"'? fe'st <I»ltii< ^•ariiOTSltel available on records, 1 am of the tsassed by the Civil Judge, Class-1!, ()y the appellate Court is a concurrent i^stion of law arises for adjudication of deserved to be dismissed and it is >n stage. (nd cireumstances of the case there Sd/- Dhirendra Mishra Judge