Madhya Pradesh High Court
Chandra Prakash vs Pooran Prakash on 2 August, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF AUGUST, 2023
MISC. PETITION No. 1701 of 2022
BETWEEN:-
1. CHANDRA PRAKASH S/O SURAJ PRASAD
SHARMA, AGED ABOUT 70 YEARS, R/O 7, PARK
VIEW 7,1 RANADE ROAD NEAR SENAPATI BAPAT
STATUTE, SHIVAJI PARK, DADAR
(MAHARASHTRA)
2. SUNDAR KAUR W/O SHRI MAHENDRA SINGH
ARORA, AGED ABOUT 71 YEARS, RAGHVENDRA
NAGAR, SHIVPURI (MADHYA PRADESH)
3. MOHIT S/O SHRI PURUSHOTTAM AGRAWAL,
AGED ABOUT 41 YEARS, R/O KHARA KUA,
KASTAM GATE, SHIVPURI (MADHYA PRADESH)
4. NALIN PANDIT S/O SHRI SHRIPRAKASH SHARMA,
AGED ABOUT 33 YEARS, R/O NEAR BADE
HANUMAN JI MANDIR, KATTHA MEEL, SHIVPURI
(MADHYA PRADESH)
5. PURUSHOTTAM S/O SHRI SITARAM AGRAWAL,
AGED ABOUT 68 YEARS, R/O SADAR BAZAR,
SHIVPURI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAMEER KUMAR SHRIVASTAVA - ADVOCATE )
AND
1. POORAN PRAKASH S/O SURAJ PRASAD SHARMA,
AGED ABOUT 63 YEARS, R/O VILLAGE PADORA
TEHSIL KOLARAS DISTRICT SHIVPURI (MADHYA
PRADESH)
2. LAXMAN PRAKASH S/O SHRI SURAJ PRASAD
SHARMA, AGED ABOUT 57 YEARS, R/O NAU
MAHLA, GHASMANDI GIRD, GWALIOR (MADHYA
PRADESH)
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
2
3. HEMANT PRASAD SHARMA S/O SHRI SURAJ
PRASAD SHARMA, R/O NAU MAHLA, GHASMANDI
GIRD, GWALIOR (MADHYA PRADESH)
4. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, SHIVPURI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI K. K. SHRIVASTAVA - ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 227 of Constitution of India has been
filed against the order dated 16.2.2022 passed by Additional Judge to the Court
of First Class Judge, Junior Division Kolaras, District Shivpuri in Civil Suit
No.RCSA/28/2021 whereby an application under Order 14 Rule 5 of CPC for
framing of additional issues preferred by present petitioner/defendant was
rejected.
Learned counsel for the petitioner had submitted that though in all 7
issues were proposed to be framed by the learned Trial Court but he is limiting
his prayer for framing of issue no.4 & 5 by the learned Trial Court. In that
context, he submits that issue no.4 which relates to the maintainability of very
suit preferred by the respondent/plaintiff on the ground that it was hit by the
proviso to Section 34 of the Specific Relief Act as the possession of the suit
property is with the present petitioner/defendant and without seeking any relief
for possession, the said suit was not maintainable.
In this regard, learned counsel for the petitioner has placed reliance in the
matter of Salim Khan alias Pappu Khan and another Vs. Shahjad Khan
and another, (2020) 1 MPLJ and has contended that where the question of
possession is in dispute then the Trial Court must frame an issue with regard to
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
maintainability of suit in the absence of consequential relief of possession.
It was further argued that with regard to issue no.5 which relates to
Benami Transaction Act, 1988 under which as per Section 3, a property which
is purchased in the name of a person and a consideration is paid by some
another person, it would amount to be and would be termed as Benami
Transaction and therefore, as per paragraph 2 of the plaint, since the land in
dispute has been purchased in the name of present petitioner/defendant out of
the funds of the ancestral property would be hit by provision of the aforesaid
Section and therefore, issue in that regard is required to be framed for which
specific pleading has been made by the petitioner/defendant in his written
statement in reply to paragraph 2 of the plaint.
It was further argued that learned Trial Court on a very flimsy ground that
since the petitioner had not filed a counter claim, the reliefs as has been prayed
through the issues cannot be granted and the issues thereof cannot be framed, is
per se illegal as it is settled that issues are requested to be framed on the basis
of pleadings of the parties in the plaint and in the written statement, it cannot be
said that defendant should file counter suit for claiming any relief and as such it
is not a relief which has been claimed by the petitioner rather it were pleadings
regarding the very maintainability of suit that has been harped upon. Thus, it
was prayed the impugned order deserves to be set aside and the petition
deserves to be allowed.
Per contra, learned counsel appearing for respondents submitted that has
reiterated the same grounds by way of arguments, which had been made the
basis of the order by learned Trial Court and had concluded that the issues
which has been proposed by the present petitioner/defendant cannot be framed.
No new grounds have been raised by learned counsel for the petitioner. Thus,
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
while supporting the findings of learned Trial Court he prayed for rejection of
the present petition.
Heard counsel for the parties and perused the record.
Section 34 of the Specific Relief Act, 1963 deals with the discretion of
Court as to declaration of status and title of property, which is reproduced
hereinunder :-
"34. Discretion of court as to declaration of status or
right.--Any person entitled to any legal character, or to
any right as to any property, may institute a suit against
any person denying, or interested to deny, his title to
such character or right, and the court may in its
discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for
any further relief:
Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so."
In the proviso to Section 34, there is a specific stipulation that no Court
shall make any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so."
In the above context, if the reliefs which have been claimed by the
plaintiff are seen, which are reproduced hereinunder :-
"19& vr% fuosnu gS fd oknhx.k ds gd esa fuEu vuqlkj fMØh
iznku dh tkos%&
v& fookfnr Hkwfe dks la;qDr ifjokj dh Hkwfe gksuk ekurs gq;s
oknhx.k dks fookfnr Hkwfe esa fgLlk 1@4&1@4 dk Hkwfe Lokeh gksuk
?kksf"kr fd;k tkosA
c&izfroknhx.k fookfnr Hkwfe esa fof/k dh izØh;k ds flok fdlh Hkh
izdkj ls dksbZ n[ky ;k gLr{ksi fookfnr Hkwfe ij oknhx.k ds
vkf/kiR; esa u rks Lo;a djsa u vU; ls djk;sa] LFkkbZ :i ls fu"ksf/kr
fd;k tkosA
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
l& okn O;; oknh] izfroknhx.k ls fnyk;k tkosA
n& vU; lgk;rk tks izdj.k dh ifjfLFkfr;ksa esa vko';d ,oa
U;k;ksfpr gks oknhx.k dks iznku dh tkosA "
It would be reflected that there is no relief of possession. From the plaint
averments, it is reflected that plaintiffs are claiming 1/4th share each in the suit
property, on the basis that it was purchased out of ancestral funds though it
was in the name of petitioner/defendant. In the plaint, it is also averred that the
plaintiff's and defendants are in joint possession whereas in reply to this para
no.2, petitioner/defendant had specifically stated that the said property has been
purchased out of his funds and the sale-deed thereof was executed in his favour
and in pursuance to the aforesaid sale-deed he is in possession of suit land. In
the aforesaid paragraph, it has further been stated that the suit property has
further been alienated by him to present petitioners 2 to 5/defendant no.2 t 5 and
the subsequent purchasers are at present in possession of suit land. Thus, it
appears to this Court that since contrary pleadings were made by parties, it was
incumbent upon the learned Trial Court to have framed the specific issue in that
regard as to whether in absence of seeking relief of petitioner, suit would be
maintainable as per provision to Section 34 of the Specific Relief Act or not.
So far as judgment cited with regard to framing of issue no.4 is
concerned, the same analogy has been laid down by the Co-ordinate Bench of
this Court in the case of Salim Khan(Supra), the said analogy is applicable to
the present matter also.
This Court has further finds that in paragraph 2 of the plaint the plaintiffs
themselves have stated that property was purchased in the name of
petitioner/defendant, thus, it was not in dispute that property is not in the name
of present petitioner No.1/defendant No.1 though, the plaintiff pleads that the
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
said property being the elder brother was purchased in his name out of funds of
ancestral property. This fact in reply to paragraph 2 of the plaint, in the written
statement has been denied in toto by the present petitioner/defendant rather it
has been contended therein that he had purchased the said property out of his
own funds and he was in possession thereof after the purchase and had further
alienated the property, according to this Court an issue as to whether the said
pleadings would be hit by provisions of Section 3 of Benami Transaction Act,
1988 was required to be framed by the Trial Court, as was proposed in
additional issue No.5
Accordingly, petition is allowed to the above extent and Trial Court is
directed to frame issue No.4 & 5 as proposed by the petitioner/defendant and
proceed with the matter.
(MILIND RAMESH PHADKE)
JUDGE
Rohit
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Aug-23
2:09:23 PM
