Manohar Lal S/O Late Shri Gulab ... vs Shrikrishan Sharma
2022 Latest Caselaw 5419 MP

                                   01

      IN THE HIGH COURT OF MADHYA PRADESH
                   AT GWALIOR
                          BEFORE
              HON'BLE SMT. JUSTICE SUNITA YADAV

                FIRST APPEAL No. 728 of 2018


  Between:-
   MANOHAR LAL S/O LATE SHRI
   GULAB CHAND SHARMA (SINCE
   DEAD) THR. LRS JAGDEESH
   PRASAD SHARMA S/O LATE SHRI
1. MANOHAR LAL SHARMA RANI
   LAXMINAGAR         GODOWN
   RAILWAY    COLONY     SEEPRI
   BAZAR (UTTAR PRADESH)

   CHANDRASHEKAR S/O LT SHRI
   MANOHAR LAL SHARMA SUNAR
2. GALI   SHIVPURI  (MADHYA
   PRADESH)

   SITARAM S/O LT SHRI MANOHAR
   LAL SHARMA SUNAR GALI
3.
   SHIVPURI (MADHYA PRADESH)

   RADHEYSHYAM SHARMA S/O LT
   SHRI MANOHAR LAL SHARMA
4. SUNAR GALI SHIVPURI (MADHYA
   PRADESH)

   SMT. MITHLESH W/O LT SHRI
5. MANOHAR LAL SUNAR GALI
   SHIVPURI (MADHYA PRADESH)
                                            .....APPELLANTS
 (BY SHRI VINOD BHARDWAJ, SENIOR ADVOCATE WITH SHRI
 ROHIT BATHAM, ADVOCATE)

 AND

   SHRIKRISHAN SHARMA S/O LATE
   SHRI GULABCHAND SHARMA ,
1. AGED    ABOUT   60   YEARS,
   SUNARGALI (MADHYA PRADESH)

2. VISHNURAM (DEAD) THR. LRS
   SMT. KALAWATI SHARMA W/O LT
   SHRI VISHNURAM SHARMA ,
   AGED ABOUT 70 YEARS, KUSUM
                                               02

     ENGERPRISES 40 KANTI NAGAR
     TANSEN    NAGAR    GWALIOR
     (MADHYA PRADESH)

   VINOD S/O LT SHRI VISHNURAM
   SHARMA , AGED ABOUT 50 YEARS,
   KUSUM ENGERPRISES 40 KANTI
3.
   NAGAR      TANSEN      NAGAR
   GWALIOR (MADHYA PRADESH)

   SMT.  REKHA   W/O   RAKESH
   BHARDWAJ , AGED ABOUT 46
4. YEARS, 13/12 BIRLA NAGAR
   GWALIOR (MADHYA PRADESH)

   SMT. RADHA DEVI W/O LT SHRI
   SATISHCHAND SHARMA KAILA
5.
   FLOUR    MILL  SUNAR   GALI
   SHIVPURI (MADHYA PRADESH)
                                                          .....RESPONDENTS
     (BY SHRI SAMEER KUMAR SHRIVASTAVA, ADVOCATE )



Reserved on :                29.03.2022
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     Whether approved for reporting :


                              JUDGMENT

(Passed on 13 April, 2022)

The present appeal is filed under Section 96(2) of the Code of

Civil Procedure aggrieved by the judgment and decree dated

21/12/2017 passed by Vth Additional District Judge, Shivpuri (M.P.)

in Civil Suit No.500015A/2013 whereby the suit for partition of joint

family property has been decreed in favour of the plaintiff/respondent

No.1-Shrikrishan Sharma.

2. The facts in brief to decide the appeal are that the appellant-

Manohar Lal (since dead) and respondent No.1-Shrikrishan Sharma,

respondent No.2-Late Vishnuram Sharma and father in law of

respondent No.3-Late Tahkur Prasad were brothers and son of Late

Shri Gulabchand Sharma. They are living in house situated at

Sunargali, Shivpuri. The plaintiff/Respondent No.1-Shrikrishan

Sharma filed a civil suit for declaration of title of 1/4 share of joint

Hindu Family house which was registered as Civil Suit No.11-A/89

before the First Additional District Judge, Shivpuri. The plaintiff

claimed his share being the son of late Gulabchand Sharma. The civil

suit was dismissed by the trial Court against which the plaintiff filed

an appeal before this Court which was decided vide judgment dated

19.9.96 and judgment of trial court was set aside and respondent no.1

and all his brothers were declared joint share holder of house having

1/4 share of each. After the decree was passed, the plaintiff demanded

partition and the possession of 1/4 share of the property which was

refused by the defendants. Thereafter, plaintiff filed the civil suit for

partition of the house which was registered at original civil suit no.

500015A/2013 and disposed of by the judgment and decree dated

21.12.2017, which is impugned herein.

3. The appellant/defendant no.1, respondent/defendant no.3

resisted the suit on the ground that the plaintiff/respondent no.1 is

entitled only 1/4 share of joint hindu property which is a house and in

separate occupation of all the four heirs of late Gulabchand. In the

previous suit the plaintiff claimed 1/4 share only in the house without

describing the measurement, area and proper boundary description of

the house. In subsequent suit the plaintiff again did not give proper

and necessary measurement, area and proper boundary description of

the disputed house. Subsequent to filing of civil suit the plaintiff filed

a map in which he also included the exclusive property of late

Manohar Lal/appellant/defendant no.1 which is situated in the

western side of the joint ancestral property and at present it is in the

form of shops and is in exclusive possession of legal representatives

of appellant/defendant no.1.

4. The legal representatives of defendant No.2-Vishnuram namely

Smt. Kalawati Sharma, Vinod Sharma, Pradeep Sharma, Smt. Rekha

Bhardwaj and Smt. Radha Devi filed their written statements and

accepted the averments pleaded in the plaint and submitted that late

Shri Gulabchand Sharma was the owner of the disputed property and

after his death, each legal heir of Gulabchand has 1/4 th share in the

property he left behind.

5. The trial Court has framed five issues and decreed the suit in

favour of plaintiff/respondent No.1-Shrikrishan Sharma (since dead).

6. Learned counsel for the appellants has argued that the

impugned judgment passed by the trial Court is against the fact and

law. The findings of the trial Court is perverse in holding that the

shops situated at western side of the suit house and shown in the map

are joint Hindu family property. The shops are actually the exclusive

property of appellant/defendant No.1. Manohar Lal (since dead). It is

further submitted that the trial Court erred in not considering that the

document or any other evidence at variance with the pleadings is not

admissible and ought to have discarded. The trial Court ought to have

held that the property which was not included in the earlier plaint

cannot be claimed as joint property subsequently in the later suit. The

Court below failed to observe the provision of Order 20 Rule 18(2) of

CPC and also not proceeded as per Order 26 Rule 13 of CPC,

therefore, the present judgment and decree is bad in the eyes of law.

Therefore, the appeal be allowed and the impugned judgment and

decree be set aside to the extent it relates to the property which was

not joint hindu family property and exclusive property of the

respondents.

7. On the other hand, learned counsel for the respondents has

submitted that the decree passed by the trial court is in accordance

with law. It is further submitted that it is already settled that the

plaintiffs/respondents have 1/4th share of the property of late Shri

Gulabchand Sharma. It is also argued that the shops are not exclusive

ownership of Manohar Lal Sharma and therefore, the findings of trial

Court is in accordance with law. It is submitted that the present

appellants have not challenged the final decree which is in progress

and therefore, this appeal is not maintainable and ought to be

dismissed.

8. Heard learned counsel for the parties and perused the material

available on record.

9. The facts on record goes to show that this is the second round

of litigation. The earlier dispute between parties regarding declaration

of right has been decreed in favour of plaintiff/ respondent by virtue

of the judgment and decree dated 19.9.96. This instant civil suit is

only for partition by meats and bound. Therefore, no new rights are

acquired to be determined in this case.

10. Learned counsel for the appellants vehemently argued that the

findings of the learned trial Court is perverse in holding that the shops

situated at western side of the suit house and shown in the map are

joint Hindu Family property. As per his arguments, the shops are

actually the exclusive property of appellant/defendant No.1. Manohar

Lal (since dead). However, the argument of the counsel for the

appellants is not found to be sustainable because on perusal of the

record it is crystal clear that this Court has already settled this issue

vide its judgment dated 19.9.96 in First Appeal No.19/93 which was

filed against the judgment and decree dated 11.12.92 passed by the 1 st

A.D.J. Shivpuri in earlier Civil Suit No. 11 A/89 holding that there is

no evidence to show that any of the house and shops are the self

acquired property of any of the co-sharers. The aforesaid judgment

has attained finality as no appeal has been filed by the appellants

herein against it. Consequently, it is proved that the preliminary

decree passed has achieved finality.

11. Learned counsel for the appellants cited the case law of

Ghanashyam Martha Vs. Brundaban Pradhan and another (1976

SCC Online Ori 55: AIR 1977 Ori 154), Damodar Reddy Vs. M.

Mohan Reddy and Ors. (2006 SCC Online Andhra Pradesh 654)

and argued at length that how the decree of partition be executed and

also argued that the execution Court has not followed the procedure

prescribed in the case of AIR 1968 Kerela 282 and ordered to

demolish the disputed property which is contrary to law. However, in

the instant appeal, the appellants have only challenged the preliminary

decree passed by the trial Court as mentioned above. Since the

proceedings pending before the trial Court for finalization of the

decree are not challenged in this appeal, therefore, the arguments

rendered in this regard are not relevant to decide this appeal.

12. In view of the aforesaid discussion, this appeal is dismissed

being devoid of merits.

(Sunita Yadav) Judge

Monika

MONIKA SHARMA 2022.04.13 16:26:50 +05'30'