Imrat Kushwaha vs Smt. Haribai Kushwaha
2022 Latest Caselaw 6468 MP

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               IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR
                               MP No. 2121 of 2021
                 (IMRAT KUSHWAHA AND OTHERS Vs SMT. HARIBAI KUSHWAHA)

Dated : 29-04-2022
      Ms. Sanjna Sahni, learned counsel for petitioners.

      Shri Pradeep Kumar Sharma, learned counsel for the respondent.

Heard on admission.

Admit.

Als o heard on I.A.No.12238/2021, which is an application for vacating interim order dated 28.10.2021 filed on behalf of the respondent.

This Court on 28.10.2021 while issuing notices, has stayed the effect and operation of the impugned order dated 22.06.2021 passed by the Additional Collector, District Narsinghpur. The Co-ordinate Bench of this Court has passed aforesaid interim order taking note of the fact that when the portions have already been decided in earlier round by the civil courts which have attained finality before this Court, there is no question for filing an application under Section 178 of the M.P.L.R.C.

Learned counsel for the respondent submits that an application Annexure P/2 dated 06.01.2021 filed by the petitioners under Section 10 of C.P.C. reflects

that stay was only till final disposal of Second Appeal No.286/2017. However, the said Second Appeal was withdrawn by respondent - Haribai on 30.06.2021. Therefore, when the second appeal itself was withdrawn, then nothing survived for deciding the application (Annexure P/2) dated 06.01.2021 and thus said application before Tahsildar had rendered infructuous. It is also submitted that in civil suit filed by Jamna Prasad, respondent - Hari Bai was arrayed as defendant and she has not instituted any proceedings except filing S.A. No.286/2017. Second Appeal was withdrawn on the grounds of possibility of settlement before the Revenue Court. It is also stated that there is no bar for the respondent to move an application under Section 178 of M.P.L.R.C. before the Tahsildar for partition and recording her name over 1/9th share in the property. Therefore, Tahsildar and the Additional Collector have rightly rejected the application of the petitioners under Section 10 of C.P.C. Hence, ex-parte interim order dated 28.10.2021 is liable to be vacated.

From perusal of the documents filed by the petitioners, it is clear that the properties in disputes were the subject matter of civil litigation for a long time. Civil Suit No.46A/2013 was filed by Jamuna Prasad against not only the petitioners but also against present respondent - Haribai, which was dismissed vide judgment and

decree dated 27.09.2013. In the Civil Suit (Annexure P/7), petitioners were defendant Nos.2 to 4 and respondent was defendant No.10. Against the said judgment and decree dated 27.09.2013, Jamuna Prasad preferred First Appeal before the Appellate Court, which was also dismissed vide judgment and decree dated 20.12.2016.

Being aggrieved by the said judgment and decree dated 20.12.2016, Hari Bai had preferred Second Appeal and the same was withdrawn vide order dated 30.06.2021 on the statement of counsel for the appellant therein that there is possibility that matter may be settled in the Revenue Courts.

In the suit filed by Jamna Prasad against petitioners and respondent, it was held by the trial Court (in para 11 of judgment) that since plaintiff Jamuna Prasad was member of joint Hindu family and to ascertain title over 1/5th share of the suit property, it was necessary to see that whether coparcenary exists between plaintiff and defendants. From perusal of Exh. P/5 (Adhikar Abhilekh) it is reflected that Ramcharan s/o Kadhora was owner of the property in 1954-55. Plaintiff Jamuna Prasad born in the year 1956. There was partition between sons of Ramchandra and in this regard in Khasra Panchsala from 1983-84 to 1986-87 over Khasra Nos.181/1, 181/6, 182/1 & 182/2, there was name of plaintiff's father Bali Ram s/o Ramchandra. Over Khasra Nos.181/2, 181/3, 182/3 & 182/4, name of Kanaiya Lal was recorded and name of Ramchandra was recorded over Khasra Nos.181/4, 181/5, 182/5 & 182/6. Thus, names of Baliram and Kanhaiyalal were recorded excepting the lands other than suit lands separately. Thus, names of plaintiff and brother of plaintiff's father were recorded separately over the ancestral property. Hence, it is also not proved that there is coparcenary right exist between plaintiff and defendants in respect of 1/5th share of the suit property. The first appellate Court has affirmed that findings of the trial Court. Accordingly, when no coparcenary right existed, then application on behalf of respondent (Hira Bai)

under Section 178 of M.P.L.R.C. ought not to have been filed, as has rightly been prima facie observed by the Co-ordinate Bench while passing interim order dated 28.10.202.

Therefore, Interim order cannot be vacated. Accordingly, I.A.No.12238/2021 stands dismissed.

(SMT. ANJULI PALO) JUDGE

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Signature Not Verified SAN

Digitally signed by RAJESH KUMAR JYOTISHI Date: 2022.04.29 18:04:30 IST