Madhya Pradesh High Court
The State Of Madhya Pradesh vs Phyrelal on 6 May, 2022
Author: Anjuli Palo
HIGH COURT OF MADHYA PRADESH : JABALPUR.
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Review Petition No. 1283 OF 2017
PETITIONER : State of Madhya Pradesh
through Collector, Bhopal
-VERSUS-
RESPONDENTS : 1. Pyarelal
2. Prabhulal (Dead)
3. Lalaram
4. Harinarayan (Dead)
All R/o Village Laukhedi, Tehsil
Huzur, District Bhopal (M.P.)
5. Smt. Leelabai, W/o Vishram Singh,
R/o Village Pipaliya (Mandideep),
Tehsil Goharganj,
District Raisen (M.P.)
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Shri Rajesh Chand, GA for the petitioner/State.
Shri Rajesh Pancholi, counsel for legal heirs of respondent No.4.
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ORDER
(06/05/2022)
1. This review petition has been filed by the State being aggrieved by
the order dated 25.1.2016 passed by this Court in Second Appeal No. 505
of 2008 by which the second appeal filed by the State has been dismissed
as abated on the ground that in spite of getting knowledge about death of
respondent No. 4, no steps have been taken by the appellant for bringing
LRs of deceased respondent on record.
2. The facts giving rise to this review petition, in brief, are that a civil
suit bearing No. 51-A/2002 was filed by Panna Lal against the State
before Civil Judge Class-I, Bhopal for declaration and permanent
injunction in relation to land Khasra No. 63 ad-measuring 6.2 acres
situated at village Laukhedi, Patwari Halka No. 23, Tehsil Huzur, District
Bhopal. The said civil suit was decreed in favour of the plaintiff vide
judgment and decree dated 30.11.2004. Being aggrieved thereby the
State filed first appeal bearing No. 58-A/2005, which has been dismissed
by Sixth Additional district Judge, Bhopal vide judgment and decree
dated 23.8.2007. Feeling aggrieved by the said judgment and decree, the
State filed a second appeal bearing No. 505/2008. During pendency of
aforesaid second appeal, respondent No. 4 has died on 20.8.2013.
3. This Court vide order dated 25.1.2016, which is under review in this
petition, has dismissed the second appeal as abated and observed that in
spite of getting knowledge about death of respondent No. 4, no steps
have been taken by the appellant/State for bringing LRs of deceased
respondent on record.
4. This review petition has been filed by the State on the ground the
second appeal could have been dismissed as abated only against
respondent No. 4. The other respondents are still alive and against them
the right to sue of the State Government still survives, therefore, the
entire second appeal cannot be dismissed as abated.
5. Learned counsel appearing on behalf of legal heirs of respondent
No. 4 has submitted that respondent No. 4 expired on 20.8.2013 and in
spite of knowledge of death of respondent No. 4, State took no steps for
about 3 years to bring his legal heirs on record, therefore, the Court has
rightly dismissed the second appeal as abated. It is further submitted that
had the right to sue survived against the surviving respondents, the State
would not have sought time constantly to file application for bringing
legal heirs of respondent No. 4 on record, instead the State would have
simply asked for deletion of the deceased respondent. It is further
submitted that the suit property was joint and indivisible. The decree that
was passed was also joint and indivisible. Joint rights were decreed in
favour of the plaintiffs/respondents, as joint claim was made against the
defendant State. Thus, qua deceased, the decree has become final. After
the death of the plaintiff/respondent No. 4 Harinarayan, the appeal could
not be said to have all necessary parties for decision of controversy
before the Court. Counsel has placed reliance on the decision of the
Supreme Court in the case of Mukhtiar Singh Vs. Kishan Kaur (Smt.);
Municipal Council, Mandsaur Vs. Fakir Chand; Rameshwar Prasad
Vs. Shambehari Lal; and of this Court in State of M.P. Vs. Ismile;
Shakoor Khan Vs. Ram Mohan. Reliance has also been placed on
State of W.B. Vs. Kamal Sengupta - 2008(8) SCC 612; Rajendra
Kumar Samaiya Vs. State of Transport Appellate Tribunal; Aiyaz
Khan Vs. Mohalla Vikas Suraksha Evam Shiksha Samiti; Smt.
Meera Bhanja Vs. Smt. Nirmala Kumari Choudhary. In view of the
aforesaid, it is prayed that this review petition may be dismissed.
6. I have heard learned counsel for the parties at length. In the instant
case, the State was the defendant. Legal representatives of late Pannalal
namely Pyarelal, Prabhulal, Lalaram and Harinarayan (respondent Nos. 1
to 4) and respondent No. 5 had filed a suit for declaration and permanent
injunction against the State not to dispossess them from the suit property
inter alia pleading that they were in possession of the suit land bearing
Khasra No. 63 area 6.2 acres situated at village Laukhedi Patwari Halka
No. 23, Tahsil Huzur, District Bhopal for last 50 years and they have
acquired the suit land as Mourushi Krishak.
7. The State filed their written statement and denied the claim of the
respondents inter alia pleading that the plaintiffs/respondents had filed a
case under Section 190 of the M.P. Land Revenue Code, which was
dismissed by the Tehsildar vide order dated 31.7.1992. Being aggrieved
thereby the plaintiffs/respondents have filed an appeal before the Sub
Divisional Officer, which was also dismissed vide order dated
31.10.2004. Because the land bearing Khasra No. 63 area 6.92 acres has
been vested in the State Government under Shahari Bhumi (Seema aur
Viniyaman) Adhiniyam and has become government land, hence
proceedings for dispossession of plaintiffs was started under Sections
189, 190 of the M.P. Land Revenue code. It was stated that only on the
basis of long possession over the suit property, the plaintiffs are not
entitled to acquire the ownership right over the suit property. They failed
to establish their rights over the suit property, thus it is prayed by the
State/defendant to dismiss the suit.
8. During the pendency of Second Appeal No. 505 of 2008 before this
Court, respondent No. 4 died and a Coordinate Bench of this Court vide
order dated 25.1.2016 dismissed the said appeal as abated against the
respondents.
9. Order XXII Rule 2 of the Code of Civil Procedure deals with
procedure where one of several plaintiffs or defendants dies and right to
sue survives. It provides that where there are more plaintiffs or
defendants that one, and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone, or against the
surviving defendant or defendants alone, the Court shall cause an entry to
that effect to be made on the record, and the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs, or against the surviving
defendant or defendants.
10. A bare reading of aforesaid provision makes it clear that in case of
death of any of the plaintiffs or defendants, the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs or against the surviving
defendant or defendant, therefore, the instant second appeal could not
have been dismissed as abated as against all the respondents.
11. The Supreme Court in Central Bank of India Vs. SC/ST
Employees Welfare Association - (2016) 13 SCC 135 has observed that
while reviewing an order/judgment, once error is found in
order/judgment which is apparent on face of record, same must be
corrected. The Court while adopting such course is guided by doctrine of
ex debito justitiae as well as fundamental principle of administration of
justice that no one should suffer because of Court's mistake.
12. In the instant case, respondent No. 4 died during pendency of
second appeal and his legal heirs were not brought on record, therefore,
the Court vide order dated 25.1.2016 intended to dismiss the second
appeal as abated against respondent No. 4 alone, however, inadvertently
it was dismissed as abated against all the respondents, which in the
opinion of this Court, is an error apparent on the face of record and it
must be corrected and no one should suffer because of Court's mistake as
observed by the Supreme Court in Central Bank of India (supra).
13. In view of the aforesaid discussion, the second appeal would abate
against respondent No. 4 only not against all the respondents because the
right to appeal still survives against the other respondents.
14. Accordingly, this review petition is allowed. Order dated 25.1.2016
passed by this Court in Second Appeal No. 505 of 2008 is hereby
recalled so far as it relates to respondent Nos. 1, 2, 3 and 5. Abatement of
Second Appeal No.505 of 2008 is set aside against respondent Nos. 1, 2,
3 and 5 only.
15. Let Second Appeal No. 505 of 2008 be listed for hearing before
regular Bench.
Digitally signed by
PRADYUMNA BARVE (Smt. Anjuli Palo)
Date: 2022.05.06 Judge
18:23:15 +05'30'
PB
