Madhya Pradesh High Court
Janki vs Jageshwar on 2 August, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2 nd OF AUGUST, 2023
MISC. PETITION No. 4247 of 2023
BETWEEN:-
JANKI S/O RATAN LODHI, AGED ABOUT 69 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
RAIYASATA, TEHSIL SHAHNAGAR, DISTRICT PANNA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHISHEK DUBEY - ADVOCATE)
AND
1. JAGESHWAR S/O KISHORI LODHI OCCUPATION:
AGRICULTURE R/O RAIPURA, TEHSIL
SHAHNAGA, DISTRICT PANNA (MADHYA
PRADESH)
2. RAMPRASAD S/O KISHORI LODHI R/O AGED
ADULT, VILLAGE RAIPURA TAHSIL SHAHNAGAR,
DISTRICT PANNA (MADHYA PRADESH)
3. UMESH S/O KISHORI LODHI, AGED ADULT, R/O
VILLAGE RAIPURA TAHSIL SHAHNAGAR,
DISTRICT PANNA (MADHYA PRADESH)
4. MUNDIBAI ALIAS RAMPYASI D/O KISHORI LODHI
W/O BABULAL LODHI R/O VILLAGE BHARWARA,
TAHSIL RAIPURA DISTRICT PANNA (MADHYA
PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 227 of Constitution of India has been filed
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 03-08-2023
19:09:12
against order dated 27.06.2023 passed by Additional Commissioner, Sagar
Division, Sagar in Appeal No.454/Appeal/A-27/2019-20 and order dated
30.05.2017 passed by Incharge Tehsildar, Tehsil Raipura, District Panna in
Revenue Case No.16/A-27/2015-16.
2. It is the case of the petitioner that one Ghasiram was the owner of the
property in dispute. After his death the property devolved upon his 3 sons
namely Pyarelal, Lalman and Narayandas. Lalman and Narayandas died
issueless. Therefore, the entire property went to Kishorilal S/o Pyarelal.
Kishorilal had 4 sons namely Ramprasad, Suresh, Umesh and Jageshwar and
one daughter Mundibai. During the lifetime of Kishorilal, the property was
partitioned amongst his sons. After execution of partition deed, Umesh
executed a sale deed in favour of the petitioner in respect of Khasra No.5678/1
area 0.188 hectares and Jageshwar executed a sale deed dated 16.09.2004 in
respect of Khasra No.5678/2 area 0.188 hectares in favour of the petitioner.
Petitioner was placed in possession of the property purchased by him and his
name was also mutated in revenue records. One Shantibai got married to
Suresh, second son of Kishorilal but after few days of his marriage he died
before gouna. Thereafter, she was married to Umesh. Shantibai filed a civil suit
against the respondents for partition, declaration of partition deed dated
04.02.1987, sale deed dated 22.06.2007 and sale deed dated 02.01.2012 as null
and void, for possession as well as for permanent injunction. It was her case
that heirs of Kishorilal had equal share and after death of her husband namely
Suresh, Kishorilal had executed a partition deed dated 04.02.1987. The entire
property was distributed to Umesh and Jageshwar whereas no share was given
to Shantibai being the widow of Suresh Lodhi. The suit was dismissed by the
Trial Court by judgment and decree dated 21.02.2012.
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 03-08-2023
19:09:12
3 . Against the aforesaid judgment and decree, the plaintiff Shantibai
preferred an appeal which was allowed by Appellate Court and a decree in
favour of Shantibai was passed thereby declaring her 1/5th share in the
property.
4. It is fairly conceded by counsel for the petitioner that the judgment and
decree dated 17.08.2013 passed by Additional District Judge Pawai, District
Panna in Civil Appeal No.13-A/2013 has not been challenged by anybody. It is
the case of the petitioner that thereafter Jageshwar/respondent No.1 filed an
application for partition under Section 178 of M.P.L.R. Code on the basis of
judgment and decree passed by First Appellate Court and prayed for partition
of remaining land. The Tehsildar by order dated 30.05.2017 allowed the
application.
5. Being aggrieved by order dated 30.05.2017 passed by Tehsildar, the
petitioner preferred an appeal before S.D.O., Shahnagar, District Panna on the
ground that he was not a party to the Civil Suit No.4-A/2012 as well as in the
appeal registered as RCA No.13-A/2013. Therefore, the judgment and decree
passed in the said case is not binding on him. Appeal filed by the petitioner was
allowed by S.D.O. Shahnagar, District Panna by order dated 05.07.2019 in
Revenue Case No.91/Appeal/2017-18 .
6. Being aggrieved by order passed by S.D.O., the respondents preferred
an appeal which has been allowed by Additional Commissioner, Sagar Division,
Sagar by order dated 27.06.2023 passed in Revenue Case No.453/Appeal/A-
27/19-20 and Revenue Case No.454/Appeal/A-27/19-20 and the order passed
by S.D.O. Shahnagar, District Panna was set aside and order passed by
Tehsildar Raipura was restored.
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 03-08-2023
19:09:12
7. Challenging the order passed by Additional Commissioner, Sagar
Division, Sagar and Tehsildar Raipura, District Panna, it is submitted by
counsel for the petitioner that since the petitioner was not a party to the civil suit
instituted by Shantibai as well as in Civil Appeal No.13-A/2013, therefore, the
judgment and decree passed in the said case is not binding on the petitioner.
8. Heard the learned counsel for the petitioner.
9 . Undisputedly, Civil Suit No.4-A/2012 was filed by Smt. Shantibai
against Ramprasad, Umesh, Jageshwar, Mundibai, Kavita, Manoharlal and
Sandeep. The petitioner is claiming title through Umesh and Jageshwar, who
were party to the civil suit. If the title of Umesh and Jageshwar comes under a
cloud, then it is well established principle of law that a seller cannot alienate a
title better than what he himself is having. The moment, the title of the seller of
the petitioner comes under could, then it will have adverse impact on the title of
the petitioner also. Therefore, merely by saying he was not a party to the said
civil suit, it cannot be said that the petitioner is not bound by the decree passed
in Civil Appeal No.13-A/2013 by Additional District Judge, Pawai, District
Panna.
10. Admittedly, the petitioner has not preferred a second appeal against
the judgment and decree dated 17.08.2013 in Civil Appeal No.13-A/2013 by
Additional District Judge Pawai, District Panna.
11. The contention of counsel for the petitioner that since he was not a
party to the civil suit, therefore, he could not challenge the judgment and decree
passed in the aforesaid case is misconceived. The appellant could have
preferred an appeal alongwith an application seeking leave to appeal. The
petitioner himself allowed the judgment and decree to attain finality.
Signature Not Verified
12. Be that whatever it may be.
Signed by: VARSHA
CHOURASIYA
Signing time: 03-08-2023
19:09:12
1 3 . Faced with such situation, counsel for the petitioner seeks liberty
from this Court to assail the judgment and decree dated 17.08.2013 passed by
Additional District Judge Pawai, District Panna in Civil Appeal No.13-A/2013. It
is sufficient to mention here that since the petitioner has not preferred an appeal
against the aforesaid judgment and decree, therefore, no separate liberty is
required.
1 4 . Since sellers of the petitioner are bound by judgment and decree
passed by Additional District Judge Pawai, District Panna in RCA No.13-
A/2013 which will have a direct impact on the title of the petitioner, this Court is
of the considered opinion that Tehsildar Raipura, District Panna as well as
Additional Commissioner, Sagar Division, Sagar did not commit any mistake by
directing for partition in accordance with judgment and decree passed in Civil
Appeal No.13-A/2013.
15. As no jurisdictional error could be pointed out by counsel for the
petitioner, accordingly, no case is made out warranting interference.
16. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
vc
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 03-08-2023
19:09:12
