Hiramani/Smt.Lolariya & Anr. vs Vishwanath Pd. (Dead) Through ...
2022 Latest Caselaw 13480 MP

                                  1

               IN THE HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                              BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                    SECOND APPEAL No. 972 of 1997


   Between:-


   1.     SMT. LOLARIYA (DEAD)
   2.     HIRAMANI (DEAD) THR. LRS
   I.     MST. CHHATHIYA DEVI, AGED 70 YEARS,
          W/D OF LATE HIRAMANI
   II.    BHAIYYALAL DWIVEDI, AGED ABOUT 44
          YEARS, S/O LATE HIRAMANI
   III.   KAILASH DWIVEDI, AGED 40 YEARS, S/O
          LATE HIRAMANI
   IV.    SMT. SUSHILA, AGED 50 YEARS, D/O LATE
          HIRAMANI
   V.     SMT. PREMVATI, AGED 48 YEARS, D/O
          LATE HIRAMANI


          ALL RESIDENT OF VILLAGE SURA,
          PRESENTLY    AT     RANI     PURVA
          (MANGAWAN) POST MANGAWAN TAH.
          MANGAWAN, DISTT. REWA (M.P.)
                                              ....................APPELLANTS

(BY SHRI RAVISH AGRAWAL, SENIOR COUNSEL WITH MRS. SANJANA
SAHANI-ADVOCATE)
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AND

      1.   VISHWANATH PD. (DEAD) THROUGH LRS
      A.   DEVENDRA NATH MISHRA, AGED 37
           YEARS, S/O LATE VISHWANATH PRASAD
      B.   PRAYAG DATT MISHRA, AGED 31 YEARS,
           S/O LATE VISHWANATH PRASAD
      C.   JITENDRA NATH MISHRA, AGED 28
           YEARS, S/O LATE VISHWANATH PRASAD.
      D.   BALKRISHNA MISHRA, AGED 21 YEARS,
           S/0 LATE VISHWANATH PRASAD


           ALL THE ABOVE FOUR SONS OF
           VISHWANATH PRASAD ARE RESIDENT OF
           MANGAWAN,       POLICE    STATION
           MANGAWAN, P.O. MANGAWAN, DISTRICT-
           REWA, M.P.
      E.   SMT. GAYATRI SHUKLA, AGED 40 YEARS,
           D/0 LATE VISHWANATH PRASAD, WIFE
           OF DEVI PRASAD SHUKLA, R/0 VILLAGE
           MADANI,   POLICE   STATION     GARH,
           TEHSIL GIRMAUR, DIST. REWA, M.P.
      F.   SARLA DEVI, D/O LATE VISHWANATH
           PRASAD, WIFE OF GOVIND PRASAD
           PANDEY,   RESIDENT   OF  VILLAGE
           SIRMOUR, POST OFFICE AND PS AND
           TEHSIL SIRMOUR, REWA
      2.   SMT. JANKI DEVI AGED 72 YEARS, WIFE
           OF LAXMAN PRASAD, RESIDENT OF
           MANGAWAN,       TEHSIL    SIRMOUR,
           DISTRICT REWA, M.P.
      3.   RANGNATH AGED 52 YEARS, SON OF
           LAXMAN   PRASAD,  RESIDENT  OF
                               3

         MANGAWAN,       TEHSIL     SIRMOUR,
         DISTRICT REWA, M.P.
    4.   KAPILMUNI AGED 30 YEARS, SON OF
         LAXMAN     PRASAD,   RESIDENT  OF
         MANGAWAN,       TEHSIL    SIRMOUR,
         DISTRICT REWA, M.P.
    5.   SUSHILA   DEVI   AGED   37  YEARS,
         DAUGHTER    OF LAXMAN      PRASAD,
         RESIDENT OF GUMI GURH TEHSIL GURH,
         DISTRICT REWA, M.P.
    6.   SAVITRI DEVI, AGED ABOUT 35 YEARS,
         DAUGHTER     OF LAXMAN     PRASAD,
         RESIDENT OF VILLAGE DIGHAUL POST
         OFFICE DHERA, TEHSIL MAUGANI,
         DISTRICT REWA, M.P.
    7.   ARUNA DEVI, AGED 33 YEARS D/O
         LAXMAN PRASAD, W/O NARENDRA
         PRASAD, RESIDENT OF SURASA, TEHSIL
         RAIPUR KARCHULIYA, DIST REWA M.P.
    8.   SANDHYA DEVI, D/0 LAXMAN PRASAD,
         WIFE OF RAM NIWAS, RESIDENT OF
         VILLAGE KOLAHA, POST OFFICE PATAI,
         POLICE   STATION    GARH,    TEHSIL
         SIRMOUR, DISTRICT REWA, M.P.
    9.   ABHA DEVI, DAUGHTER OF LAXMAN
         PRASAD, WIFE OF ARUN KUMAR
         RESIDENT OF DUBGAWAN, POST OFFICE
         KATKI, POST STATION BAIKUNTHPUR,
         TEHSIL SIRMOUR, DISTRICT- REWA, M.P.


                                       ......................RESPONDENTS

(BY SHRI M.L. JAISWAL, SENIOR COUNSEL WITH SHRI K.K. GAUTAM
AND MS. RAJSHREE JAISWAL-ADVOCATE)
                                                                       4




.............................................................................................................................................

Reserved on                             :         28.09.2022

Delivered on                            :         13.10.2022

.............................................................................................................................................

      This appeal coming on for final hearing this day, the court passed the following:

                                                          JUDGMENT

This second appeal has been filed by the appellants/plaintiffs challenging the

judgment and decree dated 30.09.1997 passed by 4 th Additional District Judge, Rewa in

Civil Appeal No.16-A/1994 reversing the judgment and decree dated 25.10.1989 passed

by 3rd Civil Judge Class-II, Rewa in Civil Suit No.143-A/89 whereby learned trial Court

decreed the suit of the plaintiffs with regard to agricultural land survey no.70 area 1.62

acre, survey no.71 area 9 acre and survey no.72 area 0.27 acre situated in Village

Ranipurva, Tahsil Sirmaur, District Rewa, which was dismissed by first appellate Court.

2. In short the facts of the case are that the original plaintiffs Prabhudatt and Lolariya

instituted a suit simpliciter for permanent injunction against original defendants Laxman

Prasad and Vishwanath Prasad with regard to aforesaid lands seeking relief to restrain

the defendants from making any interference in use and possession of the suit land as

well as in agriculture operations. During pendency of suit, due to transfer of land by

original plaintiffs Prabhudatt and Smt. Lolariya, the purchaser Hiramani was also

impleaded as plaintiff.

3. By filing written statement, the defendants denied the plaint allegations and

contended that the plaintiffs' house and well are situated over eastern half portion of the

land and they are doing cultivation in the eastern half portion only. On inter alia

contentions, the suit was prayed to be dismissed.

4. Record shows that the suit in question was filed on 01.11.1973. By way of

document no.1536/2022, which is a reply to I.A.No.14686/2016, the appellants have

submitted a copy of plaint dtd. 20.12.1979 before this Court, which appears to have been

instituted by Vishwanath Prasad for relief of declaration of title and for cancellation of

sale deed dated 22.12.1976 along with other reliefs. This suit is having new no.418-

A/11, which according to the parties, is still pending before the Court concerned.

5. On the basis of pleadings, learned trial Court framed as many as 11 issues and

recorded evidence of the parties and decided all the issues and ultimately granted relief

only of permanent preventive injunction holding the plaintiffs to be

owner/Bhoomiswami of the suit land vide its judgment and decree dated 25.10.1989.

Upon appeal by the defendants, learned first appellate Court vide judgment and decree

dated 30.09.1997 reversed the judgment and decree of trial Court and even after holding

the plaintiffs and defendants to be owner/Bhoomiswami and in possession of 1/2 -1/2

equal and different portions, dismissed the suit in its entirety. However, no reason of

dismissal of suit in toto has been given in the judgement.

6. This second appeal was admitted by this Court on 02.03.1998 on the following

substantial questions of law:-

(1) Whether the lower appellate Court was right in holding in paragraph 6 of

its judgment that the appellants were bound to file a written statement either u/O

8 Rule 9 of the CPC or were required to amend the plaint u/O 6 Rule 17 of the

CPC in reply to additional pleadings of respondent no.1 ?

(2) Whether the lower appellate Court was right in relying on an unregistered

mortgage deed Ex.D-1 for holding that a mortgage was created in respect of some

other property ?

(3) Whether the lower appellate Court was right in reversing the judgment and

decree of the trial Court on a presumption that there was fear of implementation

of law of ceiling in the year 1952 or thereabout and, therefore, the finding of the

Court below is perverse ?

7. Thereafter, upon listing the case for final hearing on 28.09.2022, this Court in the

light of the averments made in para 23 of the impugned judgment of the first appellate

Court dated 30.09.1997 found that this second appeal involves following three more

substantial questions of law:-

(4) Whether in the light of order dated 15.12.1983 passed by District Judge,

Rewa in MJC No.19/83, learned trial Court had jurisdiction to pass the judgment

and decree dated 25.10.1989 in Civil Suit No.143-A/89 ?

(5) Whether learned first appellate Court has erred in reversing the judgment

and decree of trial Court, despite taking cognizance of the aforesaid order dated

15.12.1983 in para 23 of the impugned judgment dated 30.09.1997 ?

(6) Whether in the light of order dated 15.12.1983 passed in MJC No.19/83 by

District Judge, Rewa the suit in question deserved to be decided along with other

pending civil suit No.418-A/11 filed by Vishwanath for declaration of title and

permanent injunction ?

8. Learned counsel for the appellants/plaintiffs argued the matter at length and

submitted that although the suit was filed for permanent injunction but in the light of

several findings of title recorded by learned trial Court and first appellate Court, the

substantial questions of law framed by this Court on 02.03.1998 should be decided and

submits that the learned first appellate Court has erred in reversing the judgment and

decree of trial Court on the grounds, not sustainable in the eyes of law. He submits that

even in the suit simplicitor for permanent injunction, learned Courts below were

competent to record finding on the question of title. However, he concedes that in the

light of order dated 15.12.1983 passed by District Judge, Rewa in MJC No.19/83,

learned trial Court should not have passed the judgment and decree dated 25.10.1989 in

the present civil suit no.143-A/89 and further concedes that the order passed by the

District Judge, Rewa in MJC No.19/83 was binding on the trial Court as well as on the

first appellate Court and upon taking cognizance of the same in para 23 of the impugned

judgement by the learned first appellate Court, it should not have decided the matter on

merits and with a view to maintain discipline, both the civil suits should have been

decided together, just with a view to avoid passing of conflicting judgments.

9. Learned senior counsel for the respondents in the first attempt tried to support the

judgment and decree passed by the learned first appellate Court but facing with the

aforesaid situation and in the light of observation made by learned first appellate Court

in para 23 of the impugned judgment, conceded that the impugned judgment and decree

passed by learned Courts below either in favour of the appellants or in favour of the

respondents, are not sustainable and deserves to be set aside, with the further submission

that the learned trial Court be directed to decide the instant suit along with the Civil Suit

No.418-A/11 filed by Vishwanath for declaration of title and permanent injunction.

10. Heard the learned counsel for the parties and perused the record.

11. It is pertinent to mention here that the present suit is only for permanent injunction

and later/another suit was filed by Vishwanath for declaration of title and permanent

injunction, with regard to the same property, which is still pending. The Supreme Court

has in the case of GRAM PANCHAYAT OF VILLAGE NAULAKHA VERSUS

UJAGAR SINGH & OTHERS (2000) 7 SCC 102, considered the scope of the suit

filed simpliciter for permanent injunction and held as under:-

"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into nor decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer (2000) 3 SCC 350 : (2000 AIR SCW 901 : AIR 2000 SC 1238) where this Court, on a detailed consideration of law in India and elsewhere held that even if, in an earlier suit for injunction, there is an incidental finding on ti - tle, the same will not be binding in a latter suit or proceeding where title is directly in question, unless it is established that it was 'necessary' in the earlier suit to decide the question of title for granting or refus- ing injunction and that the relief for injunction was found or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."

12. In view of the aforesaid decision of the Supreme Court in the case of GRAM PANCHAYAT OF VILLAGE NAULAKHA (supra) and further in view of the clear order dated 15.12.1983 passed by District Judge, Rewa in MJC No.19/83, the substantial questions of law 1-3 do not arise in the present second appeal arose out of a suit simpliciter for permanent injunction, and in any case they are not required to be decided in the light of pendency of another civil suit for declaration of title and perma- nent injunction, with regard to same land and between the same parties.

13. The order dtd. 15.12.1983 is available in the file of learned trial Court. While passing the order dtd. 15.12.1983, District Judge Rewa has exercised its powers under section 24 CPC whereby it directed that the civil suit no. 141-A/1980 (instituted on 1.11.73) pending before 4th Civil Judge Class 2, Rewa and civil suit no. 73-A/1982 (in- stituted on 20.12.79) pending before 1 st Civil Judge Class 2, Rewa shall be decided to- gether by the court of 1st Civil Judge Class 2, Rewa. Section 24 CPC is quoted as under :-

"24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

--

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and compe- tent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was with - drawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,--

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no ju- risdiction to try it."

14. Order sheet dtd. 20.12.83 of trial Court shows that the order dtd. 15.12.1983 of

learned District Judge, Rewa had come in the knowledge of trial Court timely but just

contrary to the direction of learned District Judge, the trial Court framed additional issue

no.10 and decided it as preliminary issue vide order dtd. 9.3.88 and held that the instant

suit is not maintainable with regard to plaintiff no.2-Heeramani and can be tried with

regard to plaintiff-Lolariya and ultimately stayed the suit only with regard to Hiramani

and fixed the case for further proceeding for 22.4.88 and then after recording evidence

of the parties, passed final judgement and decree dtd. 25.10.1989 just in contravention of

direction issued by District Judge on 15.12.1983.

15. In my considered opinion as soon as the order of transfer is passed, the Court from

which the case was transferred, ceases to have any jurisdiction and no order could be

passed by that Court thereafter in that case.

16. In the case of KAHAN CHAND VERSUS FAQIR CHAND AIR 1968 PUNJAB

AND HARYANA 374, it has been held as under :-

"7. The contrary view has been taken by the High Courts of Allahabad and Patna. In Dulhin Janak Nandini Kunwari v. Kedar Narain Singh, AIR 1941 All 140, a Division Bench of that Court expressed the view that the proceedings for the enforcement of an injunction under O. 39, R. 1 are transferable under the provisions of Section 24, Code of Civil Procedure and the proper Court to enforce the injunction is the Court which at the time was seized of the suit in the course of which the injunction was issued. It was also held that the transfer of a suit implies the transfer of all proceedings which arise out of it. Hence, a Court which has passed an interim order ceases to have jurisdiction to enforce the order when the suit is transferred to another Court and such power lies in the Court to which the suit is transferred. The reason for this view given by the High Court was that it was every way preferable that the enforcement of an injunction issued in the course of a suit should be in the hands of the Court which at the time is seized of the suit. After the transfer of the suit, any new injunction could only be issued by the Court which was dealing with the suit and it is inadvisable that there should be two Courts which might deal with matters which are in effect identical. A Court may issue an injunction under O. 39, R. 1, and then, after the suit is transferred the Court to which it is transferred may have before it other applications of a like nature and a question may arise whether the injunction already issued should be withdrawn. The Court dealing with the suit would be the proper Court to decide whether the injunction should or should not be withdrawn."

17. However, as has been observed by learned first appellate Court in para 23 of the

impugned judgment and decree, learned trial Court has committed illegality in passing

the judgment and decree dated 25.10.1989 in Civil Suit No.143-A/89 because the order

of District Judge, Rewa was having binding effect on the trial Court. As such, it can very

well be said that trial Court did not have jurisdiction to decide the instant civil suit and

resultantly the judgment and decree of trial Court dated 25.10.1989 is hereby set aside.

18. Surprisingly, learned first appellate Court despite taking cognizance of the order

dated 15.12.1983 passed by District Judge, Rewa in MJC No.19/83 and despite holding

the action of trial Court (of ignoring the order dated 15.12.1983) improper, itself decided

the civil appeal in later part by reversing the judgment of trial Court and also by

reversing the findings of trial Court on merits. As the learned first appellate Court was

exercising the appellate jurisdiction, therefore, and in view of said sub-section (3) he

was also bound by the order dated 15.12.1983 passed by District Judge, Rewa in MJC

No.19/83, Resultantly, the impugned judgment and decree dated 30.09.1997 is also not

sustainable and deserves to be set aside.

19. In view of the aforesaid discussion and in the light of the order dated 15.12.1983

passed by District Judge, Rewa in MJC No.19/83, the present/instant suit i.e. Civil Suit

No.143-A/1989 deserves to be decided along with other pending Civil Suit No.418-

A/2011 filed by Vishwanath for declaration of title and permanent injunction.

20. As discussed in aforesaid paragraphs 13 to 19, the substantial questions of law 4-6

are decided accordingly.

21. As such, this second appeal is disposed of and the matter is remanded back to the

concerned trial Court with the direction to decide the present/ instant Civil Suit No.143-

A/1989 along with already pending other Civil Suit No.418-A/2011 filed by

Vishwanath, certainly with a view to avoid passing of conflicting judgment and decree.

22. Parties to bear their own costs.

(DWARKA DHISH BANSAL)

JUDGE sh

Digitally signed by S HUSHMAT HUSSAIN Date: 2022.10.17 17:49:23 +05'30'