Rajaram Singh vs Smt. Kusum Singh
2023 Latest Caselaw 12176 MP

                                                             1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                        FA No. 274 of 2022
                                       (RAJARAM SINGH AND OTHERS Vs SMT. KUSUM SINGH AND OTHERS)

                          Dated : 01-08-2023

                                Shri Anshuman Singh - Advocate for the appellants.

                               Mr. Atul Anand Awasthi- Senior Advocate with Shri                   Ashutosh
                          Tiwari - Advocate for the respondent Nos. 1 to 4.

Shri Ravendra Shukla- Advocate for the respondent No.5.

Shri Vivek Baderiya - Advocate for the respondent No.8.

Shri Ramji Patel - Panel Lawyer for respondent No.12/State.

Heard on I.A. No. 1668/2022, which is the application for grant of stay and I.A. No. 7160/2022, which is application for vacating the stay order passed on 27/06/2022.

Learned counsel for the appellants submits that appellants have a good case on merits. Trial court has erred in law and facts in holding that the registered Will (Ex.D-15) dated, 22.05.2010 executed by late Ramphal Singh and Will (Ex.D-27) executed by Smt. Tolia Singh, wife of late Ramphal Singh has not been proved as per law and Smt. Tolia Singh has no title over the

property of Ramphal, hence she has no right to execute the Will (Ex.D-27). Learned counsel for the appellants drew the attention of this Court towards Wills Ex. D/15 and D/27 and submits that the trial court has wrongly decided the issue No.5. He also drew the attention of this Court towards para No. 39 of the impugned judgment, wherein it was held that the appellants/defendants have not interfered in the peaceful possession of the plaintiffs/respondents nos.01 to 04 over the suit property. Learned counsel for the appellants also submits that after passing of the impugned judgment and decree, respondent Nos. 1 to 4 Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 02-Aug-23 1:43:03 PM

have mutated the suit property in their favour as per the impugned judgment and decree, hence, he prays to restrain the respondent Nos. 1 to 4 from alienating the suit property till final disposal of this appeal and prays for dismissal of the application for vacating stay order 27.06.2022 filed on behalf of respondent no. 1 to 4.

Learned Senior Counsel for the respondent Nos. 1 to 4 submits that after the judgment and decree passed by the trial Court, dated 30/11/2021, respondent Nos. 1 to 4 have filed an application under Section 68 read with Section 32 of the M.P.L.R.C., 1959 before Tehsildar, Tehsil Huzur, District Rewa for correction in map, and vide order, dated 29/03/2022, the said

application was allowed and Revenue Inspector/Patwari was directed to prepare the map and correct the revenue records accordingly. Respondent Nos. 1 to 4 have mutated their names in their respective shares and also got the possession of suit property, and demarcation was also affirmed by Tehsildar, Tehsil Huzur, District Rewa vide order, dated 06/06/2022. It is also submitted that in application for stay filed by the appellants, no prayer for maintaining status quo was made and there was no prayer for restraining the respondent Nos. 1 to 4 from alienating the suit property. Hence, no stay order should be granted in favour of the appellants. In support of his contentions, learned Senior Counsel for the respondent Nos. 1 to 4 has placed reliance on the judgment of Hon'ble Apex Court in the case of Rajendra Tiwary Vs. Basudeo Prasad and Another, AIR 2002 SC 136, wherein it has been held that smaller relief can be granted if larger relief is not proved but larger relief cannot be granted when smaller relief is claimed. It is also submitted that there is no specific provision of C.P.C., 1908 mentioned in the stay application. Order 41 Rule 5 of the C.P.C, is the only provision under which stay of proceedings of a execution Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 02-Aug-23 1:43:03 PM

of decree is maintainable.

It is further submitted by learned Senior Counsel for the respondent Nos. 1 to 4 that the nature of impugned judgment and decree is declaratory and nothing has to be done in execution proceeding. By impugned judgment and decree, each plaintiffs were declared landlord, owner and possession holder of the 1/5th share each, of the land Kh. No. 31/1/1 admeasuring 5.19 acres, and it is also declared by the impugned judgment that defendant No.2/appellant No.1 herein, has no right to execute sale deed, dated 14/07/2008 for specific portion of the co-parcenery property. Hence, no case is made out for grant of stay of effect and operation of the impugned judgment and decree.

I have considered the arguments advanced by learned counsel for the parties and perused the impugned judgment and decree and gone through the citations placed before the court.

Learned trial Court vide impugned judgment and decree, decreed the suit in favour of the respondent Nos. 1 to 4 while dismissing the counter-claim of the defendant Nos. 10 to 12. The impugned decree is only declaratory in nature.

Through I.A. No. 1668/2022, appellants have prayed for relief of stay the judgment and decree, dated 30/11/2021 passed by 7th Additional District Judge, Rewa in RCS-A No. 12-A/2008. Since there is nothing in the impugned judgment and decree, which requires to be executed by execution court, hence,

the occasion to stay the execution of the impugned judgment and decree does not arise. In para No. 2 of the application, it is stated that the appellants are being forced to hand over the possession to the plaintiffs and if the possession is delivered, then the appellants would suffer irreparable loss. Whereas, Learned Senior counsel for the respondent Nos. 1 to 4 submits that Respondent no.1-4

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 02-Aug-23 1:43:03 PM

have mutated their names in their respective shares and also got the possession and demarcation which was also affirmed by Tehsildar, in that respect Respondent no.1-4 have filed copy of revenue proceedings through I.A. No. 7747/2023, an application Under Order 7 Rule 14 of the C.P.C.

Learned counsel for the appellants further submits that the respondent Nos. 1 to 4 be directed to restrain from alienating the suit property till final disposal of the instant appeal, but no relief was prayed for in the I.A. No. 1668/2022. Hence, no such relief could be granted in favour of appellants.

Looking to the aforesaid facts and circumstances of the case, in the considered opinion of this Court, I.A. No. 1668/2022 deserves to be and is hereby dismissed. In consequence thereof, I.A. No. 7160/2022, an application for vacating the interim order dated 27/06/2022 is hereby stands allowed. Accordingly, interim order for maintaining status quo granted in favour of the appellant, vide order dated 27/06/2022 hereby stands vacated.

Accordingly I.A. No. 1668/2022, and I.A. No. 7160/2022 are disposed of.

List for arguments on admission after two weeks.

(AMAR NATH (KESHARWANI)) JUDGE

skt

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 02-Aug-23 1:43:03 PM