Tukaram vs Ritesh
2023 Latest Caselaw 4302 MP

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                  ON THE 17 th OF MARCH, 2023
                 MISC. PETITION No. 1215 of 2021

BETWEEN:-
1.    TUKARAM S/O LATE KUSHANYAJI CHARPE, AGED
      ABOUT 65 YEARS, OCCUPATION: AGRICULTURIST
      R/O MATA MANDIR PATEL NAGAR KOLADHANA
      CHHINDWARA       TAHSIL     AND     DISTT.
      CHHINDWARA (MADHYA PRADESH)

2.    SUSHILA W/O TUKARMA CHARPE, AGED ABOUT
      55 YEARS, OCCUPATION: HOUSE WIFE R/O MATA
      MANDIR      PATEL   NAGAR     KOLADHANA
      CHHINDWARA TAH. AND DISTT. CHHINDWARA
      (MADHYA PRADESH)

3.    KAMLESH S/O TUKARAM CHARPE, AGED ABOUT
      37 YEARS, OCCUPATION: AGRICULTURIST R/O
      MATA MANDIR PATEL NAGAR KOLADHANA
      CHHINDWARA TAH. AND DISTT. CHHINDWARA
      (MADHYA PRADESH)

4.    SHRIRAM S/O TUKARAM CHARPE, AGED ABOUT
      33 YEARS, OCCUPATION: AGRICULTURIST R/O
      MATA MANDIR PATEL NAGAR KOLADHANA
      CHHINDWARA TAH. AND DISTT. CHHINDWARA
      (MADHYA PRADESH)

5.    SANJEEV S/O TUKARAM CHARPE, AGED ABOUT
      30 YEARS, OCCUPATION: AGRICULTURIST R/O
      MATA MANDIR PATEL NAGAR KOLADHANA
      CHHINDWARA TAH. AND DISTT. CHHINDWARA
      M.P. (MADHYA PRADESH)

                                                   .....PETITIONER
(BY SHRI DHARMENDRA PATEL - ADVOCATE )

AND
1.    RITESH S/O PRAFUL JAIN, AGED ABOUT 45
      YEAR S , R/O NAKODA REALITIES KI OR SE
      SATKAR      COMPOUND   PARASIA    ROAD
      CHHINDWARA,     TAHSIL  AND    DISTRICT
                           2
      CHHINDWARA (MADHYA PRADESH)

2.    SANTOSH S/O LATE KISHAN CHARPE, AGED
      ABOUT 55 YEARS, R/O PATELNAGAR KOLADHANA
      CHHINDWARA TAH AND DISTT. CHHINDWARA
      M.P. (MADHYA PRADESH)

3.    ASHOK DAS S/O LATE PANDHARI DAS, AGED
      ABOUT   52   YEARS, R/O   PATEL NAGAR
      KOLADHANA CHHINDWARA TAH AND DISTT.
      CHHINDWARA M.P. (MADHYA PRADESH)

4.    YOGESH DAS S/O VINAYAK DAS, AGED ABOUT 30
      Y E A R S , R/O PATEL NAGAR KOLADHANA
      CHHINDWARA TAH AND DISTT. CHHINDWARA
      M.P. (MADHYA PRADESH)

5.    THE STATE OF M.P. THROUGH THE COLLECTOR
      DISTT. CHHINDWARA M.P. (MADHYA PRADESH)

                                                              .....RESPONDENTS
(MS. PAPIYA GHOSE - PANEL LAWYER FOR THE RESPONDENT
NO.5/STATE)

      This petition coming on for admission this day, th e court passed the
following:
                                    ORDER

This Petition under Article 227 of the Constitution of India has been filed against the order dated 06.03.2021 passed by Ist Additional District Judge, Chhindwara (M.P.) in MCA No.11/2021 arising out of order dated 21.01.2021 passed by 3rd Civil Judge, Class-II Chhindwara in Civil Suit No.112-A/2020.

2. The facts necessary for disposal of the present petition in short are that the respondent No.1 has filed a suit against the petitioners and other respondents for declaration of title, confirmation of possession as well as for permanent injunction.

3. An application under Order 39 Rule 1 and 2 CPC was filed, which was duly opposed by the petitioners. The trial Court by order dated 21.01.2021 allowed the application and restrained the defendants including the petitioners

from interfering with the peaceful possession of plaintiff in respect of Khasra No.870 area 2.65 acres either by themselves or through their agents, assignees, etc.

4. Being aggrieved by the order passed by the trial Court, the petitioners preferred an appeal, which too has been dismissed by the Appellate Court.

5. Challenging the order passed by the Courts below, it is submitted by the counsel for the petitioners that the Courts below failed to see that in a previously instituted Civil Suit, the Will in question was already held to be a forged one, therefore, no right or title had accrued in favour of the plaintiffs.

6. Heard the learned counsel for the petitioners.

7. The Court below has rejected the contention of the petitioners that the Will was held to be forged in Civil Suit No.60-A/2017. It was specifically held that no finding was given to the effect that the Will is forged.

8. It is submitted by the counsel for the petitioners that the aforesaid observation made by the Court below was contrary to the record. However, he fairly conceded that the copy of the judgment passed in Civil Suit No.27- A/2014 has not been placed on record.

9. If the petitioners wanted to dislodge the findings recorded by the Court below, then they should have filed the copy of the judgment passed in Civil Suit No.27-A/2014. Since the same has not been placed on record, therefore,

this Court is not in a position to consider the submissions of the counsel for the petitioners with regard to the correctness of the findings given by the Appellate Court.

10. So far as the judgment passed in the case instituted by Ramaji is concerned, it is fairly conceded by the counsel for the petitioners that since the

respondent No.1 has not claimed his title through Ramaji, therefore, the provisions of Section 11 of CPC will not come into play.

11. No other argument is advanced by the counsel for the petitioners.

12. As no case is made out, accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.03.17 18:09:31 +05'30'