Ashok Kumar vs Vimla Devi
2022 Latest Caselaw 15643 MP

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                                  IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT INDORE
                                                       BEFORE
                                      HON'BLE SHRI JUSTICE PRANAY VERMA

                                        SECOND APPEAL No. 1797 of 2022

                            BETWEEN:-
                            ASHOK KUMAR S/O BABULAL,
                            AGED ABOUT 45 YEARS,
                            OCCUPATION: BUSINESS GRAM DODAR,
                            TEHSIL JAORA, DISTRICT RATLAM
                            (MADHYA PRADESH)
                                                                             .....APPELLANT
                            (BY SHRI RISHIRAJ TRIVEDI, ADVOCATE)

                            AND
                              VIMLA DEVI W/O LATE JHAMAKLAL,
                              AGED ABOUT 60 YEARS,
                           1. OCCUPATION: BUSINESS,
                              KHARIWAL MOHALLA, JAORA,
                              DISTRICT RATLAM (MADHYA PRADESH)
                              STATE OF M.P. THROUGH
                           2. COLLECTOR RATLAM
                              (MADHYA PRADESH)
                                                                          .....RESPONDENTS
                            ( RESPONDENT NO.2/STATE BY MS. ARCHANA MAHESHWARI,
                            PANEL LAWYER AND CAVEATOR BY SHRI MANOJ KUMAR SAHANI,
                            ADVOCATE



                               This appeal coming on for admission this day, the court passed



Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 28-11-2022
17:53:56
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                           the following:

                                                     J U D G M E N T

(Delivered on 28.11.2022)

1. Learned counsel for the appellant is heard on the question of admission.

2. This appeal under Section 100 of the C.P.C. has been preferred by defendant No.1/appellant against the judgment and decree dated 25.04.2022 passed in Regular Civil Appeal No.79/2019 by the Ist Additional Judge, Jaora to the Court of First Additional District Judge, Jaora, District Ratlam reversing the judgment and decree dated 23.09.2016 passed in Civil Suit No.41-A/2013 by the Civil Judge, Class-I, Jaora, District Ratlam and decreeing the claim of plaintiff/respondent No.1 for declaration of title to the suit land and for partition of the same.

3. As per plaintiff she and defendant No.1 jointly purchased the suit land bearing survey No.8/4/3Kha area 0.222 hectare by a registered sale deed dated 03.09.1992 for a consideration of Rs.55,000/-. Upon purchase they were jointly recorded over the same in the revenue records. When plaintiff obtained copy of the mutation entry from Patwari on 15.11.2016 she found out that the area of the suit land has been reduced to 0.198 hectare. She made inquiries from defendant No.1

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56

in that regard but did not receive any satisfactory response hence issued a notice to him on 06.03.2007 for partition and delivery of separate possession of her half share in the suit land but the same remained without any response. The defendant No.1 attempted to alienate the entire suit land hence on 29.09.2007 the plaintiff instituted an action for declaration of her half share in the suit land, for partition of the same and for permanent injunction restraining defendant No.1 from alienating the same.

4. The defendant No.1 contested the plaintiff's claim by filing his written statement submitting inter alia that plaintiff had assured him that if he would sell his share in the suit land then they would distribute the sale proceeds amongst them, that on such assurance he sold 0.240 hectare of land to different persons and delivered 55% of the sale proceeds to plaintiff, that upon sale the suit land was renumbered and mutation was carried out in which plaintiff participated, that plaintiff has always been aware of the sale deeds and reduced area of the suit land ever since 1993-94 hence the same is time barred and that the same has been filed by plaintiff with oblique motives.

5. The trial Court held that plaintiff has proved that she is the owner of half share in the suit land, that the present area of the suit land is 0.198 hectare and that defendant No.1 has not proved that he is the owner of the entire remaining land. However, further recording finding to the effect that the claim is bad for non-joinder of necessary parties

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56

i.e. purchasers from defendant No.1 and that the same is barred by time, the same was dismissed.

6. Being aggrieved by the judgment and decree aforesaid the plaintiff preferred an appeal before the lower appellate Court. The defendant No.1 also preferred a cross-objection against the findings recorded against him by the trial Court. By the impugned judgment and decree the cross-objection of defendant No.1 has been dismissed whereas appeal preferred by plaintiff has been allowed and her claim has been decreed for declaration and partition holding that purchasers from defendant No.1 are not necessary parties to the suit and that the same is within time.

7. Learned counsel for defendant No.1/appellant submits that the lower appellate Court has committed a gross error of law in reversing the judgment and decree passed by the trial Court and in decreeing plaintiff's claim. The plaintiff was well aware of sales by defendant No.1 and consequent alteration in the revenue records since 1993-94 itself but did not seek to challenge the same within the prescribed period of limitation and instituted the claim in the year 2007 which is apparently barred by time. In her cross-examination plaintiff has admitted that she had filed objection Ex.D/1 dated 28.11.2002 in the Tehsil Court in mutation proceedings and had also preferred an appeal before the Commissioner, Ujjain. The claim had rightly been dismissed by the trial Court upon finding it to be time barred. Moreover, the claim

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56

is for partition and purchasers from defendant No.1 were necessary parties to the same in absence of which it was bad for non-joinder of necessary parties as had rightly been held by the trial Court. The lower appellate Court has however reversed the findings on pure conjunctures and surmises without giving any legally justifiable reasons. It is hence submitted that the impugned judgment and decree is bad in law.

8. I have heard learned counsel for the appellant and have perused the record.

9. Both the Courts below have recorded a categoric finding that plaintiff has proved that she is the owner of half share in the suit lands. The claim has been instituted by her in the year 2007 for relief of declaration of her half share in the suit land and for partition of the same. The claim is hence essentially for partition which would be governed by Article 58 of the Limitation Act, 1963. The right to sue for partition is a recurring right and its cause of action arises on a day to day basis. Thus, only because plaintiff was aware of execution of sale deeds by defendant No.1 and the consequent revenue proceedings, it would not make any difference. Mere knowledge to that effect did not oblige her to institute the claim for partition particularly when sale deeds had been executed by defendant No.1 of land much less than his share in the entire suit land. It is not a case where sale deeds were executed by him in excess of his share.

10. Since plaintiff's claim is for declaration of her title over half

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56

share in the suit land total measuring 0.222 hectare which would be 0.111 hectare there was no necessity for her to seek any declaration to the effect that the sale deeds executed by defendant No.1 in favour of third persons are illegal since the lands sold thereunder were much less than his total share in the entire land and can very well be apportioned in his share. Thus, the claim for partition was very much maintainable which inherently includes relief of delivery of separate possession and it was not necessary for plaintiff to independently seek such relief.

11. As sale deeds were executed by defendant No.1 only of 0.240 hectare of the suit land which could very well be apportioned in his share in the entire suit land in the event of partition, it was not necessary for the plaintiff to implead purchasers from defendant No.1 as parties to the suit and it cannot be said that the suit suffered from non-joinder of necessary parties. The sale deeds executed by defendant No.1 being well within his share, the same cannot be said to be without any authority neither the plaintiff contends so. The purchasers from defendant No.1 can and would in the event of partition claim only through him. The relief claimed by plaintiff in the plaint could very well be granted to her even in absence of purchasers from defendant No.1. The lower appellate Court has hence not committed any error in holding that such purchasers are not necessary parties to the suit and has rightly reversed the finding of the trial Court in that regard.

12. In view of the aforesaid discussion, I do not find any illegality or

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56

perversity in the judgment and decree and the findings recorded by the lower appellate Court and the reasons given by it for the same. Thus, affirming the same, the appeal is found not to be involving any substantial question of law and is accordingly dismissed in limine.

(PRANAY VERMA) JUDGE ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-11-2022 17:53:56