Madhya Pradesh High Court
Abid Khan vs Smt. Bilkish Begam on 3 August, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 3 rd OF AUGUST, 2023
MISC. PETITION No. 4224 of 2023
BETWEEN:-
ABID KHAN S/O SHRI SADIQUE KHAN, AGED ABOUT 49
YE A R S , OCCUPATION: PRIVATE WORK R/O SAD
COLONY, SEONI, P.S. TEHSIL AND DISTRICT SEONI
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ARPAN SHRIVASTAVA - ADVOCATE)
AND
1. SMT. BILKISH BEGAM W/O AIZAZ SIDDHIQUI,
AGED ABOUT 58 YEARS, OCCUPATION:
HOUSEWIFE R/O OPP. PUNJAB NATIONAL BANK,
FLAT NO T-01, JYOTI COMPLEX INDORA CHOWK
NAGPUR, TEHSIL AND DISTRICT
(MAHARASHTRA)
2. MOHD. ASLAM S/O MOHD. BHAI, AGED ABOUT 63
YEARS, RESIDENT OF TIGGA MOHALLA ASHOK
WARD SEONI TEHSIL AND DISTRICT SEONI
(MADHYA PRADESH)
3. MOHD. IQBAL S/O MOHD. BHAI, AGED ABOUT 59
YEARS, RESIDENT OF TIGGA MOHALLA ASHOK
WARD SEONI TEHSIL AND DISTRICT SEONI
(MADHYA PRADESH)
4. MOHD. SALEEM S/O MOHD. BHAI, AGED ABOUT
59 YEARS, RESIDENT OF TIGGA MOHALLA
ASHOK WARD SEONI TEHSIL AND DISTRICT
SEONI (MADHYA PRADESH)
5. THE STATE OF M.P. THROUGH THE COLLECTOR
DISTRICT SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VAIBHAV JAIN - CAVEATOR)
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 05-08-2023
11:26:14
2
This petition coming on for admission this day, th e court passed the
following:
ORDER
This is a petition seeking quashment of the order dated 10.07.2023
(Annexure-P/6) in RCS No.344-A/2022 passed by 4th Civil Judge, Junior
Division, Seoni (M.P.)
2. Learned counsel for the petitioner contends that an application
moved by the present petitioner under Order 1 Rule 10 of CPC has been
rejected by the Court below. It is contended by the counsel that the plaintiff /
respondent no.2 and defendant no.2 to 4 are real sibling and are children of Late
Mohd. Bhai. It is contended by the counsel that in the year 2003, all the
aforesaid legal hires moved an application under Section 178 of M.P.L.R.C.
3. In pursuance to which, a partition took place on the strength of an
order passed by Nayab Tahsildar dated 16.04.2003. In terms of the said
partition, the property was equally divided among all the successors of Late
Mohd. Bhai. The present petitioner received Khasra No.48/1 area 0.51 Hectare
as her share. Having received the said property, the plaintiff Smt. Bilkish Bano
became absolute owner of the property and accordingly, she entered into an
agreement for sale of the entire property except 2000 sq. ft. vide agreement to
sale dated 05.12.2019. Later on, the plaintiff in collusion with her brothers, just
in order to nullify the effect of the agreement dated 05.12.2019, filed a suit
before the trial Court seeking declaration and permanent injunction. In the suit,
the defendant nos.1 to 4 entered appearance. They filed their written statement
and admitted the claim of the plaintiff. Therefore, the suit itself was filed in
order to defeat the agreement. Thus, the present petitioner moved an application
under Order 1 Rule 10 of CPC before the Court below and made a prayer that
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 05-08-2023
11:26:14
on the strength of the agreement the present petition is a necessary party,
therefore, his participation in the proceedings is necessary.
4. Learned counsel for the petitioner submits that the trial Court has
rejected the application filed by the petitioner by the impugned order. It is the
further contention of the counsel that the Court below was required to
appreciate that the present petitioner has right as regards the property in
question in view of the agreement to sale dated 05.12.2019. It is further
contended by the counsel that the present petitioner is a necessary party and in
absence of present petitioner there cannot be effective adjudication.
5. It is also contended by the counsel that all facts are required to be
brought to the notice of the trial Court and unless and until, the petitioner is
permitted to participate in the proceedings, in absence of necessary particulars
and evidence, the adjudication would not be effective. It is contended by the
counsel that there a Batwaranama on record which is at page no.43 of the
petition and the same reflects that the plaintiff Bilkish Bano became the absolute
owner of the Khasra No.48/1 area 0.51 Hectare and accordingly, she entered
into an agreement as regards that said property only except 2000 sq. ft.
6. Therefore, counsel while placing reliance on the decision of this
Court in the case of Tilak Sahkari Grah Nirman Sanstha vs. Aqeel Ahmed
& Ors. (2020 1 MPLJ 332) submits that order impugned deserves to be set
aside.
7. Per contra, learned counsel for the respondent submits that the
present petition filed by the petitioner is misconceived and deserves dismissal.
8. It is contended by the counsel that the petitioner is neither proper
nor necessary party. It is further contended by the counsel that if the petitioner
has any grievance pertaining to the alleged agreement, it is for the petitioner to
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 05-08-2023
11:26:14
file a suit for specific performance. However, no interference with the impugned
order is warranted as, the present petitioner has no nexus with the subject matter
of the suit filed by the plaintiff before the trial Court. Thus, counsel submits that
the petition deserves to be dismissed.
9. Having considered the submissions advanced on behalf of the
parties, the record reflects that in a suit filed by the plaintiff Smt. Bilkish Bano
for declaration and permanent injunction, the present petitioner seeking
impleadment in view of an agreement of sale dated 05.12.2019. The said
agreement has been brought on record at page no.32.
10. A perusal of agreement reflects that Smt. Bilkish Bano and the
present petitioner has entered into an agreement as regards the sale of the
property situated on Khasra No.48/1 area 0.51 Hectare. As per the petitioner,
the aforesaid total land 0.51 Hectares situated on Khasra No.48/1 was received
by the plaintiff in partition. The said partition deed has been brought on record
by the petitioner.
11. A perusal of the said partition deed reflects that it was agreed by
way of the said partition deed that Khasra No.48/1 area 0.51 Hectares would be
in the ownership of the Mohd. Aslam, Mohd. Iqbal, Mohd Salim and Smt.
Bikish Bano (the plaintiff). The aforesaid partition deed which is being relied by
the petitioner prima facie reflects that the plaintiff Bilkish Bano is not the
exclusive owner of the property situated at Khasra No.48/1 area 0.51 Hectares
on the contrary, the same is recorded in the name of three other persons namely
Mohd. Aslam, Mohd. Iqbal, Mohd. Salim. This fact is also further evident from
the perusal of Kharsa which is at page no.46 of the petition. Therefore, if the
petitioner is claiming any right on the basis of agreement with Smt. Bilkish
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 05-08-2023
11:26:14
Bano, it is proper for the petitioner to file a suit for specific performance on the
strength of agreement to sale dated 05.12.2019. So far as the suit filed by the
plaintiff is concerned, the present petitioner is neither necessary nor proper
party.
12. Therefore, in the considered view of this Court, the Court below
has rightly rejected the application filed by the petitioner under Order 1 Rule 10
of CPC while observing that the present petitioner is neither necessary nor
proper party.
13. The judgment as relied upon by the petitioner is distinguishable
on facts.
14. Accordingly, in view of the aforesaid, this Court does not find
any infirmity in the order impugned passed by the trial Court.
15. Resultantly, the petition stands dismissed.
(MANINDER S. BHATTI)
JUDGE
mn
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 05-08-2023
11:26:14
