SYNOPSIS

The petitioner/plaintiff is the real brother of the

Respondent/Defendant after the death of their father

they continued to remainded in jointly Hindu family

along with their mother while the others five brothers of

the petitioner/plaintiff and Respondent/Defendant

started living separately along with their families.

The respondent/defendant was the chief head

(KARTA/MUKHIYA) of the joint Hindu family and was

employed in a transferably job in Maharashtra and the

petitioner/application was the youngest son in the

family and was running a Small Tea/food Hotel (DHABA)

in this native place they had half and half share each in

the joint Hindu family properly after the death of their

father.

After the death of his father the petitioner/plaintiff

many time in the front of the relatives requested to

respondent/defendant for partition of the joint Hindu

family property but he did not give attenation on request

of the petitioner /plaintiff only give the assurance and

took time its happened many time.

 LIST OF DATES

1974 The father of the petitioner/plaintiff and

respondent /defendant expired and after the

death of their father the petitioner/plaintiff

and respondent/defendant continued to

remain in jointly with their mother while the

other five brothers started living separately

along with this families.

1974 That the respondent/defendant was the

head (KARTA/MUKHYA) of the joint Hindu

family, after their death of the father of the

petitioner /plaintiff and respondent/

defendant had half and half share each in

the joint family property.

1974 After the death of their father

petitioner/plaintiff was running a small tea

and food Hotel (DHABA) and the

respondent/defendant was employed in a

Transferable job in the Maharashtra.

March’83 The mother of the petitioner/plaintiff and

respondent/defendant advised the

 petitioner/plaintiff and respondent/

defendant to purchase the properly bearing

Survey No. 304 area 1.64 acres situated at

village Kheliya, Tehsil Pan Serval, Distt.

Barwani, Madhya Pradesh.

March’83 The petitioner/plaintiff give Rs.1000/- to

his mother for the expenses of the

agreement to sale but the

respondent/defendant did pay any money

only given assurance to his mother of the

petitioner/plaintiff.

March’83 The petitioner /plaintiff also give Rs. 8-9

thousands for the expenses of the land

diversion turn from the agriculture land to

the residential land but the

respondent/plaintiff did give any expenses

only give the assurance.

April’83 The petitioner/plaintiff had further given Rs.

1393.04 to his mother to deposit the lagen of

the said property but the

respondent/defendant.
8.4.1983 That the above said land was converted into

residential land from the agriculture land vide

diversion order dated 8.4.1983 passed by the

Court of the under departmental officer

(Revenue) Distt. Barwani, Madhya Pradesh.

15.6.83 That the petitioner also further had given Rs.

6000/- for entire expenses for the registration

of the sale deed regarding of the above said

land and it was decided the sale deed will be

executed in the favour of their in mother but

the sale deed was executed in the favour of the

respondent/defendant. In the capacity of the

elder brother and (KARTA/MUKIYA) of their

joint Hindu family.

June 83 That it decided by the family member of the

petitioner/plaintiff and Respondent/defendant

the said property is the joint family property of

the petitioner/plaintiff and the

respondent/defendant. It was also decided

that the petitioner/plaintiff and

 respondent/defendant had half and half share

each in the above said land.

1984 That after the registration of the sale deed the

petitioner/plaintiff spent total Rs. 4200/- on

his joint Hindu family as Rs. 1700 for the

construction of the two small tamper (shade

place) for the agriculture item and animal the

petitioner and also spent gave Rs.1500 to his

brother in law and give Rs. 400 on leader from

Gynov and further spent Rs. 600 for

construction on pillons.

1987 The respondent/defendant divided the said

land into 57 plots during the poling the

petitioner/plaintiff was given assurance by the

respondent/defendant to give equal share in

the above land in others income came from

plots and remained left plot also expressed

that have been mutually partitioned.

1990 The mother of the petitioner/plaintiff and the

respondent/defendant expired and after the

death of their mother, the respondent/

defendant and all five brothers of the petitioner

had given all agriculture land and also gave 3-

4 tola gold and ½ kg silver of his mother to

the petitioner as a gift for the service of his

mother Habisa Bai.

1990 The petitioner /plaintiff kept as security his 3-

4 tola gold and ½ kg silver which came in his

share with the respondent/defendant which is

at present in the position of the

respondent/defendant.

17.4.1992 The petitioner/plaintiff and the

respondent/defendant enter into mutual

statement /compromised before the family

member, that 28 plots in the share of the

petitioner/plaintiff and 28 plots in the share to

the respondent /defendant and 1 plot of the

mother same from the total 57 plots.

1996 The respondent/defendant concealing this fact

from the petitioner/plaintiff and with other

purchaser because he obtained amount and

committed the deal to sale the land in this

regard on enquiry by the petitioner/plaintiff,

the respondent/defendant stated quarrel and

abusing with the petitioner/plaintiff.

1996 The petitioner/plaintiff demanded from the

respondent/defendant this 3-4 total gold and

½ kg silver ornament which came in his

share, the respondent/defendant did not

return any thing to the petitioner/plaintiff.

1996 The petitioner/plaintiff called his relative

Madhu Nikumar and his parents Raja Ram

Kumar the respondent/defendant admitted

the mother’s ornament kept as security with

him and he also admitted half share of the

petitioner/plaintiff in the said land and all

joint Hindu family property took some time to

return the above.

1996 That respondent/defendant also took 2-3

months time before the relatives for the

partition of the said land and other Joint

Hindu family properties, he also further took

time to return the ornament of the

petitioner/plaintiff but the

respondent/defendant neither partition the

land nor return the ornament.

3.9.1996 That petitioner /plaintiff issued one legal

notice to respondent/defendant to return the

amount and partition the said and other joint

hindu family property, the

respondent/defendant wrongly /replied of /the

notice saying the in the year 2000 he will

partition the firothery will also return of

portion the proposed and we return the

ornaments.

2000 That petitioner/plaintiff requested with the

respondent/defendant of partition property

and return the ornament but the

 respondent/defendant admitted the fact 7

partition and replay the ornament in the year

of 2001.

2001 That to his bad intention and his dishonest in

the mind the respondent/defendant had

denied to partition the said land and other

joint Hindu family properly he also denied to

return the ornament.

2001 That the petitioner/plaintiff came to know that

the respondent/defendant transferred the plot

No.10 and 11 in the name of his daughter

Meena and remaining plots either sold or

agreement to sale have been executed by

dishonestly.

10.4.2001 The petitioner/plaintiff filed a Civil Suit No.

6A/2001 in the court of Civil Judge,

Badhwani, M.P. for permanent injection,

declaration and partition in respect of joint

founder family properly and his ornament kept

as family with the respondent/defendant.

31.5.2001 The respondent/defendant his daughter his

son in law and other relative came at 8.00 am

in the house of the petitioner/plaintiff they

threatened to the petitioner/plaintiff either

withdraw the will or face dir consequent, when

the petitioner/plaintiff demanded his share

and fighting ornament they all started quarrel

and with the petitioner/defendant and also

destroyed the house of the petitioner

/defendant and other house hold items.

31.5.2001
8.30 am The petitioner/applicant informed and

complaint to the police about the incident but

no action was taken.

1.6.2001 the police informed to the petitioner/plaintiff

that no complaint has been lodge regarding the

incident happened with the petitioner/plaintiff.

2.7.2001 The petitioner sent the written complaint to

the senior police officer by registered post but

no action was taken.

7.7.2001 The petitioner/plaintiff filed a complaint U/s

156 Cr PC to lodge FIR 451, 506, 427, 294 IPC

 of Cr. P.C. to lodge the FIR against the

respondent/plaintiff and his family member

and others associates.

31.8.2007 The said Civil Suit 6A/2001 of the

petitioner/plaintiff was dismissed and

decreed by the Hon’ble Court of Civil Judge

category, Barwani, Madhya Pradesh. A copy of

order dated 21.8.2007 passed by the Civil

Judge, Barwani, Madhya Pradesh in Civil Suit

No. 6A/2001 is annexed herewith and marked

as Annexure P-1 [pages to ]

18.10.2007 The petitioner/plaintiff filed an appeal in

the Court of II Addl. Distt. Judge, Sendhwa,

Distt. Barwani, MP against the judgment and

decree dated 31.8.2007 passed by Civil Judge

category, Barwani, MP.

14.8.2014 That the petitioner /plaintiff and the

respondent/defendant filed an application

under order 41 Rules 27 and U/s 151 CPC

was filed before II Addl. And District Judge,

 Sendhwa Disttt. Barwari, MP with mutual

statement and compromise paper sign by the

petitioner /plaintiff and respondent/defendant

and others family members but no order was

passed on this application by the II Addl. and

District Judge, Sendhana, Distt. Barwani, MP.

11.5.2015 That the petitioner/applicant also

submitted objection before Chief Excutive

Offices, Municipal Corporation Khatiya,

Distt. Barwani, MP against the mutation

application filed by the respondent/

defendant of the 1st appeal in the court of

II Addl. District Judge, Sendhana, Distt.

Barwani, MP.

16.11.2015 That the petitioner/applicant submitted no

objection on the application of the

respondent/defendant for mutation

before Nayab Tehsildar Office, Sendhana,

Distt. Barwani, MP during the pendency

of the suit appeal before II Addl. Distt.

Judge, Shedhwon, Distt. Bawani, MP.

23.12.2015 The respondent/defendant started illegal

construction on the disputed property

during the pendency of the 1 st appeal

before II Addl. District Judge, Sendhana,

Distt. Barwani, MP.

24.12.2015 That the petitioner/application has given

a applicant/complaint to the SHO

against the illegal construction on

disputed property by the respondent/

defendant but no action was taken.

6.1.2016 Stay application Under order 39 Rule 1-2

against the illegal construction and

changing the nature of the suit property.

16.6.2016 Complaint the petitioner/plaintiff also to

concern authority against the illegal

construction on the disputed property by

the respondent/defendant the

petitioner /plaintiff field before the High

Court.
10.4.2015 That the above said Civil Appeal No.6-

A/2014 was also dismissed and decree by

the II Addl. District Judge, Sendhwa,

Barwani, MP.

13.5.2015 IInd Civil appeal No. 235/2015 filed in

the High Court of M.P. at Indore by the

petitioner/plaintiff.

16.11.2016 The II Civil Appeal No.235/2015 filed bdy

the petitioner/respondent was dismissed

by the Hon’ble high Court.

05.2017 Hence the present Special leave petition.

QUESTION OF LAW

1 Whether the learned judge of the trial court was

justified in dismissing the civil suit by ignoring the

statement of two real brother of the

petitioner/plaintiff respondent/defendant Mr. Sukh

Lal PW -1 and PW-2 Mr. Tolala Ram have been

recorded in the favour of the petitioner/applicant

and against the respondent/defendant?

II. Whether the learned judge of the trial court was

justified in dismissing the civil suit by ignoring the

statement and compromise filled before the Court

signed by the respondent/defendant and

petitioner/plaintiff and others family members ?

III. Whether the petitioner/plaintiff issued notice to the

respondent/defendant before filing the suit and the

respondent/defendant did give correct and proper

reply.

III. Whether the criminal complaint against

respondent/defendant and this family member

forcibly try to take over illegal possession of the suit

property and incident regarding quarrel, abusing

and fighting with the petitioner/plaintiff on

31.5.2001 at 8.30 am?

V. Whether in-spite of proof of existence of nucleus

and joint nature of the suit property and failure of

the respondent to discharge the shifted onus of

proving the suit property to be his self acquisition,

the courts below have committed an illegality in

 non-suiting the appellant by misapplying the

fundamental principles of Hindu Law.

VI. Whether the findings recorded by the Courts below

for holding the suit to be barred by the provisions of

Benami Transaction (prohibition) Act, 1988 are

illegal and vitiate the impugned judgment and

decree ?

VII. Whether the learned Judge of the Lower Appellate

Court was justified in rejecting the application filed

by the appellant under Order 41 Rule 27 C.P.C.

without properly considering the evidentiary value

of additional documentary evidence?

5. GROUNDS

A. Because the sale out the plots during the pendency

of the civil suit.

B. Because try to change the nature of suit and

started illegal construction on the suit property

during the pendency of the suit.

C. Because destroying the temper (temporary room)

and agricultural items of the petitioner/plaintiff

laying on the suit property.

D. The respondent/defendant counselling the fact

from the petitioner /plaintiff and with other

purchaser and started obtained amount and

committed deal to sale deed in this regard on

enquiry by the petitioner /defendant the

respondent/defendant started general and abusing

with the petitioner /defendant he also threatened to

the petitioner/plaintiff either keep silence or face

dire consequence.

E. Because complaint of the petitioner /plaintiff on

demand his share of the respondent /defendant this

daughter and other family members of the

respondent /defendant and started beating to the

petitioner /plaintiff and also deserving his house

and other house hold items. Petitioner/plaintiff

immediately complaint to the local police but no

action was taken.

G. Because the Ld. Judges of the Courts below have

committed grave error of law and facts both in

dismissing the claim of the appellant when the suit

land was established to be a joint family property.

H. Because the learned Judges of the Courts below

have committed grave illegally in holding that the

suit land was the self acquired property of the

respondent when the respondent had not even

adduced or produced the sale deed of the suit land.

I. That the learned Judges of the Courts below have

failed to consider that the appellant had discharged

the initial onus to prove the existence of a nucleus

and the suit land being a joint family property, and

that in such circumstances the burden of proving

the suit land to be the self acquired property had

shifted on the respondent which he had altogether

failed to discharge.

J. That the learned Judge of the Courts below have

grossly misconstrued the pleading of the appellant

in respect of the purchase of the suit land and in

construing the pleadings to be admission for

holding that the suit land was the self acquired

property of the respondent.

K. That the learned Judges of the courts below have

failed to consider that the appellant had clearly

 pleaded in the plaint that the respondent was the

elder brother and the Karta of the joint unit and

that even the purchase of the suit land was made in

the name of the respondent in the capacity of

Karta and not in his individual capacity.

L. That, the findings recorded by the learned Judges

of the Courts below for holding the suit to be barred

by the provisions of Benami Transaction

(Prohibition) Act, 1988 are illegal and vitiate the

impugned judgments and decrees.

M. That the learned Judge of the Lower Appellate Court

has committed gave illegally in rejecting the

application filed by the appellant under Order 41

Rule 22 CPC without considering that the

documents sought to be adduced by the appellant

had a vital and material bearing on the issue

involved between the parties.

6. GROUNDS FOR INTERIM RELIEF:

A. Because the petitioner shall face irreparable loss

in-terms of prestige and social stigma shall

 damage his life and there is every chance of his

acquitted in the case.

B. Because the contents of the Special Leave Petition

including the main grounds may also be read as

part and parcel of the interim grounds and the

same are not repeated in the sake of brevity.

7. MAIN PRAYER

It is, therefore, most respectfully prayed that

this Hon’ble Court may graciously be pleased to:

(a) Grant Special Leave to appeal against the

against the Impugned Order and Judgment

dated 16.11.2016 passed by the High Court

of Madhya Pradesh in S.A. No. 235/2015;

(b) Pass any other further order/ orders as may

be deemed fit in the facts & circumstances of

this case.

8. PRAYER FOR INTERIM RELIEF:

(a) grant ad-interim ex-parter stay against the

order Impugned Order and Judgment dated

 16.11.2016 passed by the High Court of

Madhya Pradesh in S.A. No. 235/2015;

(b) Pass any other further order/ orders as may

be deemed fit in the facts & circumstances of

this case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONERS

AS IN DUTY BOUND, SHALL EVER PRAY.

Drawn by: Filed by