Madhya Pradesh High Court
Smt. Shashikala vs Smt. Narmada Devi on 13 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 13 th OF DECEMBER, 2023
MISC. APPEAL No. 1897 of 2013
BETWEEN:-
1. SMT. SHASHIKALA W/O LATE SHRI HIRALAL
DUBEY, AGED ABOUT 59 YEARS, WARD NO.20
KUMHARI MOHALLA, BALAGHAT (MADHYA
PRADESH)
2. KU. MONIKA D/O LATE SHRI HIRALAL DUBEY,
AGED ABOUT 31 YEARS, WARD NO. 20, KUMHARI
MOHALLA, BALAGHAT, M.P. (MADHYA PRADESH)
3. KU. SONIKA D/O LATE SHRI HIRALAL DUBEY,
AGED ABOUT 28 YEARS, WARD NO. 20, KUMHARI
MOHALLA, BALAGHAT, M.P. (MADHYA PRADESH)
4. RAKESH DUBEY S/O LATE SHRI HIRALAL DUBEY,
AGED ABOUT 34 YEARS, WARD NO.20, KUMHARI
MOHALLA, BALAGHAT M.P. (MADHYA PRADESH)
5. SHARAD DUBEY S/O LATE SHRI HIRALAL DUBEY,
AGED ABOUT 39 YEARS, V.P. DIXIT INSIDE P.R.
TIKRAPARA, BILAPAUR, TEHSIL & DISTT.
BILASPUR C.G
6. RAKESH DUBEY (DELETED)
7. SMT. ASHALATA TIWARI W/O NAVNEET TIWARI,
AGED ABOUT 33 YEARS, ASHWINI NAGAR,
MAHADEVGHAT, RAIPUR, C.G.
.....APPELLANTS
(BY SHRI KUNAL THAKRE AND SHRI RAMAN CHOUBEY - ADVOCATES)
AND
1. SMT. NARMADA DEVI (DELETED)
2. RAVISHANKAR (DEAD) THROUGH LRS MANJU
DUBEY W/O LATE SHRI RAVISHANKAR, AGED
ABOUT 67 YEARS, R/O WARD NO.3 JUNNARDEO,
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/14/2023
2:29:51 PM
2
DISTT. CHHINDWARA (MADHYA PRADESH)
3. JAWAHARLAL (DEAD) THR. LRS
3A ANURAG DUBEY S/O LATE SHRI JAWAHARLAL
DUBEY, AGED ABOUT 37 YEARS, WARD NO.20,
KUMHARI MOHALLA, BALAGHAT M.P. (MADHYA
PRADESH)
3B MANOJ DUBEY S/O LATE SHRI JAWAHARLAL,
AGED ABOUT 33 YEARS, OCCUPATION: NIL WARD
NO. 20 KUMHARI MOHALLA BALAGHAT
(MADHYA PRADESH)
3C MANISH DUBEY S/O LATE SHRI JAWAHARLAL,
AGED ABOUT 28 YEARS, OCCUPATION: NIL WARD
NO. 20 KUMHARI MOHALLA BALAGHAT
(MADHYA PRADESH)
3D ASHISH DUBEY S/O LATE SHRI JAWAHARLAL,
AGED ABOUT 25 YEARS, OCCUPATION: NIL WARD
NO. 20 KUMHARI MOHALLA BALAGHAT
(MADHYA PRADESH)
3E KU. POOJA DUBEY D/O LATE SHRI JAWAHARLAL,
AGED ABOUT 23 YEARS, OCCUPATION: NIL WARD
NO. 20 KUMHARI MOHALLA BALAGHAT
(MADHYA PRADESH)
4. RAMNIKLAL (DELETED)
5. SMT. ANNAPURNA W/O LATE SHRI
MANOHARLAL, AGED ABOUT 56 YEARS, WARD
NO.20, KUMHARI MOHALLA, BALAGHAT M.P.
(MADHYA PRADESH)
6. KU. RICHA D/O LATE SHRI MANOHARLAL, AGED
ABOUT 27 YEARS, WARD NO. 20, KUMHARI
MOHALLA, BALAGHAT, M.P. (MADHYA PRADESH)
7. KU. SHILPA D/O LATE SHRI MANOHARLAL , AGED
ABOUT 25 YEARS, WARD NO. 20, KUMHARI
MOHALLA, BALAGHAT, M.P. (MADHYA PRADESH)
8. AMRISH S/O LATE SHRI MANOHARLAL, AGED
ABOUT 22 YEARS, WARD NO.20, KUMHARI
MOHALLA, BALAGHAT M.P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI UMESH TRIVEDI - ADVOCATE FOR RESPONDENTS 5-8)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 12/14/2023
2:29:51 PM
3
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on IA No.19641/2023, which is an application under Order 22
Rule 2 CPC for deleting the name of appellant 6.
2. For the reasons mentioned in the application, the same is allowed, with
the direction to learned counsel for the appellants to carry out necessary
amendment in the memo of appeal today itself.
3. Accordingly IA No.19641/2023 is allowed/disposed off.
4. Also heard on admission.
5.This misc. appeal has been preferred by the appellants/defendants
challenging the judgment and decree dtd. 01.05.2013 passed by First Additional
District Judge, Balaghat in civil appeal No.48-A/2012 reversing the judgment
and decree dtd. 31.03.2010 passed by Third Civil Judge Class-II, Balaghat in
civil suit No.14-A/2009 whereby trial court decreed the suit holding the plaintiffs
and defendants to be joint owners of 1/3-1/3 share each and also issued
permanent injunction.
6. In the present case the dispute is in respect of house property which
according to the plaintiffs, belonged to Fateh Lal Dubey, who was survived by
three sons namely Buddhulal, Pannalal and Jainarayan. The plaintiffs 1-2 are
claiming through Jainarayan Dubey and plaintiffs 3-8 are claiming through
Pannalal, whereas the defendants are claiming through Buddhulal Dubey.
Accordingly learned trial court held the plaintiffs and defendants to be joint
owners of 1/3 - 1/3 share in the house property.
7. Learned counsel for the appellants/defendants submits that against the
judgment and decree of trial court dtd.31.03.2010, the defendants preferred civil
appeal, in which the defendants moved an application under Order 6 Rule 17
CPC for amendment in the written statement, which was allowed vide order dtd.
01.07.2011 and by remanding the matter to trial Court findings were called on
some issues. In pursuance of which trial court vide its order dtd. 02.02.2012
sent the findings on the issues to the appellate court, thereafter by the impugned
judgment dtd. 01.05.2013 the appellate court has remanded the matter for
decision of the civil suit afresh.
8. Learned counsel for the defendants/appellants submits that on the
basis of material available on record learned first appellate court itself ought to
have decided the appeal and should not have remanded the matter.
9. Learned counsel for respondents 5-8 supports the impugned judgment
of remand and prays for dismissal of the misc. appeal.
10. Heard learned counsel for the appellants/defendants and perused the
record.
11. By the judgment and decree dtd. 31.03.2010 trial court decreed the
suit holding the plaintiffs and defendants to be joint owner and in possession of
the suit property and challenging this judgment and decree, the defendants
preferred regular civil appeal, which by the impugned judgment of remand has
been allowed and matter has been remanded to trial court for decision of civil
suit afresh after setting aside the judgment and decree dtd. 31.03.2010 passed
by trial court.
12. The judgment of remand passed by first appellate court is in favour
of the defendants and could have been challenged by the plaintiffs/respondents
but not by the appellants/defendants, who themselves preferred the regular civil
appeal against the judgment and decree of trial court. As such, interference in
the impugned judgment of remand is declined.
13. In view of the aforesaid discussion in my considered opinion, this
misc. appeal fails and is hereby dismissed.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
