Madhya Pradesh High Court
Babulal vs Sitaram S/O Umrao Singh (Died) Thr ... on 25 August, 2023
Author: Sunita Yadav
1 MISC. APPEAL No. 294/2001
IN THE HIGH COURTOF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 25th OF AUGUST, 2023
MISC. APPEAL No. 294 of 2001
BETWEEN:-
BABULAL S/O BHOLARAM, AGED ABOUT 45
YEARS, VILLAGE BERKHEDI BUJURG TEHSIL
AND DIST VIDISHA (MADHYA PRADESH)
.....APPELLANT
(BY MR. SATYENDRA SINGH RAJPUT - ADVOCATE)
AND
SITARAM S/O UMRAO SINGH (DIED) THR LRS
1. SURESH S/O LATE SHRI SITARAM, AGED
1. ABOUT 30 YEARS, OCCUPATION: KASTKARI
VILLAGE BORIYA TEHSIL AND DIST VIDISHA
(MADHYA PRADESH)
SITARAM S/O UMRAOSINHG DIED THR LRS 2.
MAHESH KUMAR S/O SITARAM, AGED ABOUT
2. 28 YEARS, OCCUPATION: KASTKRI VILLAGE
BORIYA TEHSILAND DIST VIDISHA (MADHYA
PRADESH)
SABODARABAI W/O UMRAOSINHG (DIED)
THR LRS A. GORELAL (DELETED) S/O UMRAO
3.
SINGH VILLAGE BORIA TEHSIL AND DIST
VIDISHA (MADHYA PRADESH)
4. SABODARABAI W/O UMRAOSINHG (DIED)
THR LRS B. NAREN SINGH S/O UMRAO SINGH
(DIED) THR LRS B.1. JITENDRA S/O LATE SHRI
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
2 MISC. APPEAL No. 294/2001
NARAN SINGH, AGED ABOUT 22 YEARS, NEAR
HOME GUARD OFFICE VIDISHA (MADHYA
PRADESH)
SABODARABAI W/O UMRAOSINHG (DIED)
THR LRS B. NAREN SINGH S/O UMRAO SINGH
(DIED) THR LRS B.2. RAHUL S/O LATE SHRI
5.
NARAN SINGH, AGED ABOUT 18 YEARS, NEAR
HOME GUARD OFFICE VIDISHA (MADHYA
PRADESH)
SABODARABAI W/O UMRAOSINHG (DIED)
THR LRS B. NAREN SINGH S/O UMRAO SINGH
(DIED) THR LRS B.3. SMT. BHAGWAI BAI W/O
6.
LATE SHRI NARAN SINGH NEAR, R/O HOME
GUARD OFFICE VIDISHA (MADHYA
PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR LRS
A. KHUBRAM S/O HIRALAL, R/O VILLAGE
7.
PIPALKHEDA, TEHSIL AND DISTRICT
VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR LRS
B. KASHIRAM S/O HIRALAL, R/O VILLAGE
8.
PIPALKHEDA TEHSIL AND DISTRICT
VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR LRS
C. DOLIBAI W/O NARAIN SINGH R/O
9. VILLAGE PHOOLBAGH SANCHAMPA TEHSIL
SANCHI, DISTRICT RAISEN (MADHYA
PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS D. KAMMABAI W/O BHIKAM SINGH,
10.
R/O VILLAGE KARAIYA, TEHSIL SANCHI
DISTRICT RAISEN (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS E. GANGABAI W/O DEVARAM, R/O
11.
VILLAGE PIPALKHEDA TEHSIL AND
DISTRICT VIDISHA (MADHYA PRADESH)
12. KASTURIBAI W/O HIRALAL (DIED) THR
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
3 MISC. APPEAL No. 294/2001
LRS F. PARASRAM S/O HIRALAL, R/O
VILLAGE PIPALKHEDA, TEHSIL AND
DISTRICT VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS G. JAIRAM S/O HIRALAL R/O VILLAGE
13.
PIPALKHEDA, TEHSIL AND DISTRICT
VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS H. SITARAM S/O HIRALAL R/O
14.
VILLAGE PIPALKHEDA, TEHSIL AND
DISTRICT VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS I. DAULATRAM S/O HIRALAL R/O
15.
VILLAGE PIPALKHEDA, TEHSIL AND
DISTRICT VIDISHA (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS J. CHIRONJIBAI W/O KARAN SINGH,
16.
R/O VILLAGE BHURIPATHAR DISTRICT
BHOPAL (MADHYA PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS K. JAMNABAI (DELETED) W/O
17. RAJARAM VILLAGE KARAIYA TEHSIL
SANCHI DISTRICT RAISEN (MADHYA
PRADESH)
KASTURIBAI W/O HIRALAL (DIED) THR
LRS L. RAMSHREEBAI W/O JAGANNATH
18. SINGH, AGED ABOUT 40 YEARS, R/O BAYA
BARKHEDA TEHSIL AND DIST VIDISHA
(MADHYA PRADESH)
KASHIBAI (DIED) THR LRS.
A. JAMUNAPRASAD S/O AMARSINGH, R/O
19.
VILLAGE KHEJDA TEHSIL AND DIST
VIDISHA (MADHYA PRADESH)
B. PAPPU S/O AMARSINGH, R/O VILLAGE
20. KHEJDA TEHSIL AND DIST VIDISHA
(MADHYA PRADESH)
21. C. MADANLAL S/O AMARSINGH, R/O
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
4 MISC. APPEAL No. 294/2001
VILLAGE KHEJDA TEHSIL AND DIST
VIDISHA (MADHYA PRADESH)
SARJUBAI W/O NARBADAPRASAD R/O
22. VILLAGE MANA TEHSIL AND DISTRICT
RAISEN (MADHYA PRADESH)
BHANWARIBAI W/O HIRALAL, R/O
23. VILLAGE PIPALKHEDA TEHSIL AND
DISTRICT VIDISHA (MADHYA PRADESH)
SHIVRAM MAINA, AGED ABOUT 41
YEARS, R/O VILLAGE BERKHEDI BUJURG
24.
TEHSIL AND DISTRICT VIDISHA (MADHYA
PRADESH)
DALCHAND MAINA, AGED ABOUT 36
YEARS, R/O VILLAGE BERKHEDI BUJURG
25.
TEHSIL AND DISTRICT VIDISHA (MADHYA
PRADESH)
LAKHAN, AGED ABOUT 31 YEARS, R/O
VILLAGE BERKHEDI, BUJURG TEHSIL
26.
AND DISTRICT VIDISHA (MADHYA
PRADESH)
.....RESPONDENTS
(BY MR. ROHIT BANSAL - ADVOCATE)
This appeal coming on for Hearing this day, the court passed
the following:
JUDGMENT
Present Miscellaneous appeal under Order 43 Rule 1(t) of the
Code of Civil Procedure against the order dated 17.01.2001 passed
by IInd Additional District Judge to the Court of District Judge,
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
Vidisha in Misc. Civil Case No. 6 of 2000 and 7 of 2000 by which
Civil Appeal No. 37-A/99 was dismissed for want of prosecution.
2. Factual matrix of the case, in brief, are that original plaintiff
Ramkobai filed a suit against the defendants for cancellation of sale-
deed got executed from her fraudulently by defendant No. 1 & 2
Sitaram and Sabodrabai on 15-10-62 without paying consideration
and by deceiving her mother Bhuribai on the allegation that Bhuribai
was mother of original plaintiff-Ramkobai and defendant Kasturibai
and Bhamaribai, since deceased, Bhuribai was residing in Village
and she was illiterate and aged more than 90 years and was
cultivating the land. The defendant No.1 who was nephew i.e.
Devar's son persuaded Bhuribai that he will look after her cases and
preserve her land and for that he requires the Power of Attorney and
after persuading Bhuribai, defendant No.1-Sitaram took Bhuribai to
Vidisha and on the pretext of executing power of attorney got sale-
deed executed in favour of his mother Sabodrabai/defendant No.2
and one in his favour and his brother's favour. When the fact came to
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
the knowledge of Bhuribai, she got searched and found that instead
of Power of Attorney, sale-deeds have been got executed without
paying any consideration and therefore, she filed suit for cancellation
of sale-deeds on the allegation that she is illiterate and is no capable
to understand being 90 years old and have been deceived by
defendant No.1 and got sale-deed executed on the pretext that Power
of Attorney is to be executed and no consideration has been paid.
The plaintiff is still in possession of land and no possession was
delivered to defendant and prayed for cancellation of sale-deeds. The
suit was filed within one month of the alleged sale-deeds.
3. During the pendency of the suit Bhuribai died and Ramkobai,
one daughter was brought on record and other two daughters of
Bhuribai i.e. Kasturibai and Bhamribai were made defendant Nos. 3
& 4.
4. Defendant No. 1 & 2 contested the suit interalia on the ground
that the sale deeds have been executed by deceased-Bhuribai in their
favour and consideration has been paid and the suit is filed by the
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
plaintiff on the wrong advise. Other two defendants daughters
Kasturibal and Bhamaribai gave their written statements in favour of
the plaintiff.
5. During the pendency of the suit, defendant encroached upon
the land therefore the plaint was amended and allegations were made
that Bhuribai was limited owner of the property to the extent of 1/4th
share and had no right to transfer whole of the land and therefore the
remaining land to the extent of the share of the present plaintiff and
defendant No.3 and 4 be declared owner. Thereafter, the learned trial
court decreed the suit and sale-deeds were declared null and void by
judgment and decree dated 6-5-69.
6. Against the said judgment and decree, the defendant-Sitaram
and Sahodrabai filed appeal. In the appeal, the appeal was allowed
and the judgment and decree dated 6-5-69 was set aside and the case
was remanded back to the trial court for fresh and separate trial
because the two suits were consolidated.
7. After remand the learned trial court by judgment and decree
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Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
dated 19-12-77 dismissed the suit.
8. Being aggrieved against the said judgment and decree the
appellant preferred appeal. The learned lower appellate court by the
impugned judgment and decree dismissed the appeal.
9. Being aggrieved against the said judgment and decree second
appeal was filed before this Court and this Court by order dated 25-
9-97 remanded the case to the learned lower appellate court for re-
hearing of the appeal on merits, which was dismissed by the
impugned order on 17.01.2001 for want of prosecution.
10. Counsel for the appellant argued that alleged impugned order
passed by learned first appellate Court is based on perverse
findings and is against the settled principles of law. Learned court
below erred in not considering the fact that that day counsel for
the appellant was busy in district Court. The Court below after
receiving the application of appellant did not fix any time for
arguments and dismissed the case at 1:25 pm. Further submission
is that an opportunity as a matter of last indulgence, may be
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
granted to appellant to argue the matter before first appellate
Court in the interest of justice.
11. Counsel for the respondents vehemently opposed the prayer
and argued that in view of the conduct of the appellant no further
opportunity should be granted to the appellant. Learned first
appellate Court has granted ample opportunities to the appellant
to argue the matter and before dismissing the case almost three
opportunities had been granted to the appellant to argue the
matter, however, he deliberately caused delay and did not argue
the matter. In these circumstance, no further opportunity should
be granted to the appellant.
12. Having heard learned counsel for the parties and in view of
the facts and circumstances of the case, in the considered opinion
of this Court that at least one opportunity should be extended to
the appellant to argue the matter before the first appellate Court,
Vidisha in Civil Appeal No. 37-A of 1999. Thus, the appeal is
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
allowed. The impugned order dated 17.01.2001 is set aside and
the matter is remanded to the Court below for its adjudication
afresh after affording opportunity to the appellant as a matter of
last indulgence with a cost of Rs.5,000/- before competent Court
within a period of one month from the date of receipt of certified
copy of this order.
13. Parties are directed to appear before first Appellate Court,
Vidisha on 30.10.2023 at 11:00 am and thereafter as and when the
case is listed by the Court.
14. Ex consequenti, present appeal stands disposed of with the
aforesaid.
(Sunita Yadav)
Judge
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 8/28/2023
5:30:52 PM
