Chattisgarh High Court
Smt. Rampyari Devi vs Smt. Sushila Sahu on 6 September, 2021
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
FA No. 59 of 2021
1. Smt. Rampyari Devi Wd/o Late Chamru Lal Sahu Aged About 58 Years R/o Kadamni
Chowk, Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur District Surguja
Chhattisgarh.,
2. Umesh Gupta S/o Late Chamru Lal Sahu Aged About 30 Years R/o Kadamni Chowk,
Sadar Road, Ambikapur, Police Station And Tahsil Ambikapur District Surguja
Chhattisgarh.
3. Paras Sahu S/o Late Chamru Lal Sahu Aged About 28 Years R/o Kadamni Chowk, Sadar
Road, Ambikapur , Police Station And Tahsil Ambikapur District Surguja Chhattisgarh.
---- Appellants/Plaintiffs
Versus
1. Smt. Sushila Sahu W/o Shri Krishn Gopal Sahu Aged About 46 Years Caste Teli, R/o
Mandalpar, Police Station And Tahsil Baikunthpur District Koriya Chhattisgarh.,
2. Smt. Meena Gupta W/o Shri Krishn Dev Ram Aged About 44 Years Caste Teli, R/o
Village Maini, Tahsil Bagicha, District Jashpur Chhattisgarh.
3. Smt. Urmila Gupta W/o Shri Ramesh Gupta Aged About 40 Years Caste Teli, R/o
Ghutrapara, Police Station And Tahsil Ambikapur District Surguja Chhattisgarh.
4. Smt. Sheela Gupta W/o Shri Vinod Gupta Aged About 35 Years Caste Teli , R/o Sadar
Road, Kadamni Chowk, Ambikapur, Police Station And Tahsil Ambikapur District Surguja
Chhattisgarh.
5. Smt. Sangeeta Gupta D/o Late Chamru Lal Sahu Aged About 31 Years R/o Sadar Road,
Kadamni Chowk, Ambikapur, Police Station And Tahsil Ambikapur District Surguja
Chhattisgarh.
6. The State Of Chhattisgarh Through Collector, Surguja At Ambikapur District Surguja
Chhattisgarh. ---- Respondents/Defendants
06.09.2021 Shri A.K.Prasad, counsel for the appellants.
Shri Ratnesh Kumar Agrawal, counsel for respondent No.1.
Shri Vikram Dixit appears for respondents No. 2 to 5 on memo.
Ms. Reena Singh, P.L. for the State/respondent No.6.
Heard on I.A.No.01/2021, an application filed under Order 39 Rule 1 & 2
read with Section 151 of the Code of Civil Procedure, 1908, praying for
restraining the respondents No. 1 & 2 from interference of their peaceful
possession and also for issuance of direction against them from creating any
third party interest with regard to the property in question, pending decision of
this appeal.
It is contended further, though orally, that since Respondents No. 1 & 2
have initiated the mutation proceedings based upon the impugned judgment and
decree, therefore, the same may also be stayed else, after obtaining the revenue
papers recorded in their names, they may alienate the property in question to
someone else and in the said event, it would cause an irreparable loss to them.
According to Shri Prasad, learned counsel for the appellants, a registered
deed of Will dated 13.03.2005 (Ex.P.3) was executed by Chamrulal in favour of
the Appellants and while entertaining the issue No.1-A, it was upheld by the trial
Court. However, while entertaining the issue No.1-B, it was observed at para 58
that the same is not legally executed and accordingly, it was held that the
Plaintiffs have no right over the property in question and that by allowing the
counter claim of the Respondents No. 1 & 2, the ownership of theirs over the
property in question, except the property bearing Kh.Nos. 166/1 and 771/1, has
been declared. It is contended further while referring to the provisions prescribed
under Section 30 of the Hindu Succession Act, 1956, that Chamrulal could very
well execute the Will in so far as his one-third interest over the property in
question is concerned and has placed his reliance in this regard upon a decision
rendered by the Supreme Court in the matter of Radhamma and others vs.
H.N.Muddukrishna and others reported in (2019) 3 SCC 611 and prays for
grant of interim relief, during pendency of this appeal.
On the other hand, Shri Ratnesh Kumar Agrawal, learned counsel for
Respondent No.1, while opposing the same has submitted that since the Will was
found to be executed illegally, and therefore, the Plaintiffs are not entitled to get
the interim relief as such. Alternatively, it is contended that even if the alleged
Will is upheld to the extent of executor's 1/3rd interest, then in the said
eventuality, the Respondents No. 1 & 2 being co-owners of the property in
question cannot be restrained from creating the third party interest with regard to
the 2/3rd of their shares.
On due consideration of the aforesaid contentions of the parties and
considering further as per the provision of Section 30 of the Hindu Succession
Act, 1956 and also based upon the principles laid down in the aforesaid
judgment, it appears prima facie that Chamrulal could execute the alleged Will
(Ex.P.3) at least to the extent of one-third of his interest to the
Appellants/Plaintiffs and in view thereof, their right over the property in question
cannot be held to be disowned at this stage and, if the revenue records
pertaining to the property in question are mutated or if the property is alienated
based upon the impugned judgment and decree, it would certainly cause an
irreparable loss to the Appellants/Plaintiffs.
Accordingly, the application (I.A.No. 01/2021) is hereby allowed and it is
directed that the mutation proceedings, being Revenue Case
No.202108021700025/197/2020-2021 (A-6), pending before the Naib Tahsildar,
Ambikapur, based upon the impugned judgment and decree dated 14/07/2021
passed by the Second Additional District Judge, Ambikapur, Dist. Surguja in Civil
Suit No.19-A/2016 shall remain stayed until further orders and, it is directed
further that in case of any alienation is made with regard to the property in
question during the pendency of this appeal, the same would be subject to the
outcome of the judgment and decree ultimately to be passed in this appeal.
With the aforesaid direction, the application (I.A.No01/2021) is accordingly
disposed of.
Post this matter for final hearing in its due course.
Sd/-
(Sanjay S. Agrawal)
Judge
Anjani
