Madhya Pradesh High Court
Abdul Raseed Kha Since Deceased) ... vs Smt. Bhagirathi on 4 July, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 4 th OF JULY, 2023
CIVIL REVISION No. 346 of 2023
BETWEEN:-
1. ABDUL RASEED KHA (SINCE DECEASED)
THROUGH LRS (ALREADY SUBSTITUTED)
(i) ABDUL MUKEED S/O LATE ABDUL RASEED,
AGED ABOUT 52 YEARS, PATEL TOLA, WARD NO.
15, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
(ii) MOHAMMAD RASID KHAN S/O LATE ABDUL
RSEED KHAN, AGED ABOUT 50 YEARS, PATEL
TOLA, WARD NO. 15, BARGHAT, POLICE STATION
BARGHAT (MADHYA PRADESH)
(iii) ABDUL SAMI S/O LATE ABDUL RASEED KHAN,
AGED ABOUT 40 YEARS, PATEL TOLA, WARD NO.
15, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
(iv) MUJEEB KHAN S/O LATE ABDUL RASEED KHAN,
AGED ABOUT 46 YEARS, PATEL TOLA, WARD NO.
15, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
(v) MUBEEN KHAN S/O LATE ABDUL RASEED KHAN,
AGED ABOUT 44 YEARS, PATEL TOLA, WARD NO.
15, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
(vi) KU. SHIFA (MINOR) D/O AMREEN KHAN, AGED
ABOUT 10 YEARS, OCCUPATION: THROUGH
MATERNAL UNCLE ABDUL MUKEED S/O ABDUL
RASEED KHA AGE ABOUT 52 YEARS PATEL TOLA,
WARD NO. 15, BARGHAT, POLICE STATION
BARGHAT (MADHYA PRADESH)
2. GULAM MOHAMMAD S/O SHRI MOHAMMAD
AHMAD, AGED ABOUT 60 YEARS, PATEL TOLA,
WARD NO. 15, BARGHAT, POLICE STATION
BARGHAT (MADHYA PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
2
3. SMT. TAHERA W/O LATE SHRI ZAMEEL KHAN R/O
NEAR MUTTON MARKET, NEAR HOUSE
OFRAHMAN KHAN MISTRI, BAIHAR, POLICE
STATION AND TEHSIL BALAGHAT (MADHYA
PRADESH)
4. SMT. FATIMA W/O SHRI NASEEM QUADRI R/O
QAUDRI MANJIL, MOMINPURA MASJID KE
SAMNE WALI GALI, NAYAPURA, TEHSIL AND
DISTRICT (CHHATTISGARH)
5. SMT. BALIDA @ NIGHAT W/O IQBAL QUADRI R/O
QAUDRI MANJIL, MOMINPURA MASJID KE
SAMNE WALI GALI, NAYAPURA, TEHSIL AND
DISTRICT (CHHATTISGARH)
6. SAFIQ KHAN S/O SHRI MOHAMMAD RAFIQ KHAN
R/O VILLAGE LAHUGADUA, TEHSIL PARASIA,
DISTRICT (MADHYA PRADESH)
7. MUSAMMAT KHALIDA BEGUM W/O SHRI
MOHAMMAD ALI PATEL TOLA, BARGHAT,
POLICE STATION BARGHAT (MADHYA PRADESH)
8. AFZULURREHMAN S/O SHRI AZIZURREHMAN R/O
VILLAGE DUTY, TEHSIL AND DISTRICT SEONI
(MADHYA PRADESH)
9. SMT. KHATUN BI W/O HANEEF KHAN PATEL
TO LA, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
10. SMT. RABIYA BI W/O LATE MOHAMMAD HAFIZ
R/O PRATAPGARH, TEHSIL CHHAPARA, DISTRICT
(MADHYA PRADESH)
11. MOHAMMAD HASIM S/O LATE MOHAMMAD
H AFI Z R/O PRATAPGARH, TEHSIL CHHAPARA,
DISTRICT (MADHYA PRADESH)
12. DILWAR KHAN S/O SHRI HANEEF(RANGER) R/O
LALBARRA, POLICE STATION LALBARRA, TEHSIL
WARA SEONI (MADHYA PRADESH)
13. LATEEF KHAN S/O SHRI HANEEF KHAN R/O
PRATAPGARH, TEHSIL CHHAPARA, DISTRICT
(MADHYA PRADESH)
14. HABEEB KHAN S/O SHRI HANEEF KHAN PATEL
TO LA, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
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15. MATEEN KHAN S/O SHRI HANEEF KHAN
OCCUPATION: TEACHER R/O VILLAGE BADA
CHHAPARA (MADHYA PRADESH)
16. HUSALKA W/O SHRI HANEEF KHAN R/O VILLAGE
ARI, TEHSIL BARGHAT, DISTRICT (MADHYA
PRADESH)
17. MAHALKA W/O SHRI WAHEED KHAN PATEL
TO LA, BARGHAT, POLICE STATION BARGHAT
(MADHYA PRADESH)
18. PARVEEN D/O SHRI HANEEF KHAN PATEL TOLA,
BARGHAT, POLICE STATION BARGHAT (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI R.K. VERMA-SENIOR ADVOCATE WITH RAMMURTI TIWARI-
ADVOCATE)
AND
1. SMT. BHAGIRATHI W/O BHUPENDRA BHARTI
VILLAGE GUDMA, POLICE STATION AND TEHSIL
BARGHAT (MADHYA PRADESH)
2. RAKESH S/O RAJENDRA KENATH BHARTI R/O
WARD NO 3, MAI ROAD, BARGHAT, POLICE
STATION AND TEHSIL BARGHAT (MADHYA
PRADESH)
3. SMT. NIMIMA GIRI W/O SHRI AKHILESH GIRI R/O
WARD NO 3, WARA SEONI, TEHSIL WARASEONI,
(MADHYA PRADESH)
4. SANJAY S/O SHRI RAJENDRA KENATH BHARTI
R/O NEAR NAGAR PANCHAYAT , POLICE STATION
AND TEHSIL BARGHAT (MADHYA PRADESH)
.....RESPONDENTS
This revision coming on for admission this day, th e court passed the
following:
ORDER
This civil revision has been preferred by the petitioners/decree holders
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
challenging the order dtd.09.02.2023 passed by II Civil Judge Sr. Div., District
Seoni in case No. EX.A/18/17 whereby preliminary objection raised by the
petitioners/decree holders with regard to maintainability of the application filed
by the objector under Order 21 Rule 36, 97 r/w Section 151 CPC, has been
dismissed.
2. Learned counsel for the petitioners/decree holders submits that
the objector/respondent 1 namely Smt. Bagirathi Bharti has preferred objections
on the basis of a sale deed dtd. 13.02.1978 executed by Mukul Bharti and Smt.
Kusum Bharti, claiming herself to be owner and in possession of the part of the
suit property, whereas, the rights of her predecessor in title-Mukul Bharti have
already been decided vide judgment and decree dtd. 17.10.2006, which has
attained finality vide order dtd. 19.04.2017 passed in SA No.179/2014, whereby
parties to the second appeal have compromised the matter and the defendants
in the second appeal No.179/2014 were required to leave possession of the suit
property except an area 1600 sq.ft., which was given to them under
compromise. With the aforesaid submissions and placing reliance on the
decisions of the Supreme Court in the case of Bool Chand (Dead) Thr. LRs
and Ors. vs. Rabia and Ors. (2016) 14 SCC 270 (Para 11&12); Umadevi
Nambiar vs. Thamarasseri Roman Catholic Diocese (2022) SCC Online 398
(Para 18 &19) and Jogi Ram vs. Suresh Kumar and Ors. (2022) 4 SCC 274
(Para 39), he submits that in every case detailed enquiry on the application
under Order 21 Rule 97 CPC is not necessary and the Court can decide the
rights of the parties on the basis of material available on record, including the
copy of judgment and decree passed by courts. He further submits that merely
on the basis of some entries made in the revenue record it cannot be said that
the objector is in possession of the suit property and by placing reliance on the
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
decision of the Supreme Court in Bhimabai Mahadeo Kambekar (Dead) Thr.
LRs. vs. Arthur Import and Export Company and Ors. (2019) 3 SCC 191 he
submits that revenue entries do not confer title. Accordingly he prays for
allowing the civil revision by setting aside the impugned order and further prays
for dismissal of the objection filed by the respondent 1/objector.
3. Heard learned counsel for the petitioners and perused the record.
4. From perusal of the judgment and decree dtd. 17.10.2006 passed
by II Civil Judge Class-II, Seoni, it is clear that the suit in question was
instituted on 18.10.1994 which attained finality by passing final order dtd.
19.04.2017 in SA No.179/2014. Perusal of objections filed under Order 21 Rule
36, 97 r/w 151 CPC shows that the respondent 1/objector is claiming rights on
the suit property on the basis of sale deed dtd. 13.02.1978 which was executed
even prior to institution of the civil suit No.175-A/2003, therefore, and in view
of the fact that the objector has filed several documents showing her to be in
possession of the suit property that too for the period prior to institution of civil
suit No.175-A/2003 on 18.10.1994, hence at this stage it cannot be said that the
respondent 1/objector is claiming right through the judgment debtors.
5. It is pertinent to mention here that upon filing the objection by the
respondent 1, the learned executing court had entertained the objection long
back and case was listed for recording evidence on 22.11.2018, which was not
objected by the petitioners timely.
6. As such in my considered opinion learned executing court has not
committed any illegality in rejecting the preliminary objection raised by the
petitioners/decree holders.
7. Accordingly, this civil revision is dismissed.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
8. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/5/2023
11:13:49 AM
