STATE OF M P Vs. SHIV PRASAD

JUDGEMENT

(1.) BEING aggrieved by the judgment/decree dated 12-8-88, passed by District Judge, Shahdol in C. A. No. 84- A/81, reversing the judgment/decree, dated 19-8-81, passed by Civil Judge Class I, Shahdol in C. S. No. 2-A/76, defendant/appellant has preferred this appeal under Section 100, CPC.

(2.) THE appeal has been admitted on the following substantial questions of law:-"

(3.) FACTS in brief are, plaintiffs/respondents Beni Prasad, Ramkishore respectively are sons of plaintiff/respondent Shiv Prasad. Shiv Prasad is recorded Bhumiswami of 77. 46 acres of land. The Competent Authority under the M. P. Ceiling on Agricultural Holdings Act (hereinafter called "act") started proceedings for determining the surplus land and held that 23. 46 acres of land was surplus as such liable to vest with the State. Order dated 13-12-75 (Exhibit P-19) accordingly was passed in Rev. Case No. 260-A-90 (3)/74-75. While determining 23. 46 acres of land as surplus the Competent Authority overruled the objection that plaintiffs/respondents Shiv Prasad constituted a Joint Hindu Family alongwith his major sons Beni Prasad, Ram Kishore, who being co-parceners were entitled to share in the ancestral land 77. 46 acres. Accordingly, plaintiffs/respondents instituted C. S. No. 2-A/76 in the Court of Civil Judge Class I, Shahdol, challenging the order dated 13-12-75 (Exhibit P-19) on the ground that the Competent Authority had not calculated the entitlement of the holders correctly. Order declaring 23. 46 acres of land as surplus be declared as void. Defendant/appellants contested the suit and stated that there was a partition between plaintiff/respondent and sons then they have been living separately. Plaintiff/respondent Shiv Prasad alone is the recorded Bhumiswami of the suit land 77. 47 acres. Therefore, order dated 13-12-75 declaring 23. 46 acres of land as surplus is valid. The suit filed by plaintiffs/respondents is time barred. The Civil Judge vide judgment dated 19-8-81 in C. S. No. 2-A/76 held that plaintiffs/respondents are not members of Joint Hindu Family held plaintiff/respondent Shiv Prasad alone is the Bhumiswami of the suit land 77. 46 acres. The suit has been filed within prescribed period of limitation. The order dated 13-12-75 passed by Competent Authority as to the entitlement of holder plaintiff/respondent Shiv Prasad was correctly ascertained. Consequently, C. S. No. 2-A/76 was dismissed. The First Appellate Court dealt with the points aforesaid and in judgment Paras 7, 8 and 13 respectively has held :-