Madhya Pradesh High Court
Ramchandra (Dead) Through Legal ... vs Ramkhelavan (Dead) S/O Gajadhar ... on 20 March, 2023
Author: Gurpal Singh Ahluwalia
1 M.P.No.1503/2023
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 20th OF MARCH, 2023
MISC. PETITION No. 1503 of 2023
BETWEEN:-
1. RAMCHANDRA (DEAD) THROUGH
LEGAL REPRESENTATIVES
a. BUDDHSEN S/O LATE RAMCHANDRA
AHIR, AGED ABOUT 60 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GHUGHUTA TEHSIL RAMPUR
NAIKIN, DISTRICT SIDHI (MADHYA
PRADESH)
b. RAMNATH S/O LATE RAMCHANDRA
AHIR, AGED ABOUT 54 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GHUGHUTA TEHSIL RAMPUR
NAIKIN, DISTRICT SIDHI (MADHYA
PRADESH)
c. VISHWANATH S/O LATE
RAMCHANDRA AHIR, AGED ABOUT 48
YEARS, OCCUPATION: AGRICULTURE
R/O R/O GRAM GHUGHUTA TEHSIL
RAMPUR NAIKIN, DISTRICT SIDHI
(MADHYA PRADESH)
.....PETITIONERS
(BY SMT. SANJANA SAHNI - ADVOCATE)
AND
1. RAMKHELAVAN (DEAD) S/O
GAJADHAR RAMNATH ALIAS GAPPA
2 M.P.No.1503/2023
(DEAD) THROUGH HIS LRS.
a. HEERALAL YADAV S/O RAMNATH
YADAV, AGED ABOUT 42 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
b. MOTILAL YADAV S/O RAMNATH
YADAV, AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
c. SMT. DASODIYA W/O RAMNATH
YADAV, AGED ABOUT 70 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
2. RAMSAJEEVAN (DEAD) THROUGH HIS
LRS
a. BRIJBHAN S/O RAMSAJEEVAN
YADAV, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
b. INDRABHAN S/O RAMSAJEEVAN
YADAV, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
3 M.P.No.1503/2023
c. SMT. TANGI D/O LATE
RAMSAJEEVAN YADAV, AGED ABOUT
55 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM GAHIRA
TEHSIL MADWA THANA GOVINDGARH
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
d. SMT. PULIYA D/O LATE
RAMSAJEEVAN YADAV, AGED ABOUT
47 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM GAHIRA
TEHSIL MADWA THANA GOVINDGARH
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
3. SMT. RAMVATI (DEAD) THROUGH HER
LRS
a. RAJESH S/O RAMBHAROSA, AGED
ABOUT 21 YEARS, R/O GRAM GAHIRA
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
b. RAMESH S/O RAMBHAROSA, AGED
ABOUT 18 YEARS, R/O GRAM GAHIRA
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
4. RAMNIHOR (DEAD) THROUGH LRS
a. CHANDRASEKHAR PRASAD (DEAD)
THROUGH HIS LRS SMT. INDRAWATI
W/O CHANDRASEKHAR, AGED ABOUT
70 YEARS, OCCUPATION: HOUSEWIFE
R/O GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
b. RAJEEV KUMAR PANDEY S/O
4 M.P.No.1503/2023
CHANDRASEKHAR PRASAD, AGED
ABOUT 38 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM GAHIRA
TEHSIL MADWA THANA GOVINDGARH
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
c. SANJEEV KUMAR PANDEY S/O
CHANDRASEKHAR PRASAD, AGED
ABOUT 38 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM GAHIRA
TEHSIL MADWA THANA GOVINDGARH
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
d. AJIT PANDEY S/O CHANDRASEKHAR
PRASAD, AGED ABOUT 34 YEARS,
OCCUPATION: AGRICULTURE R/O
GRAM GAHIRA TEHSIL MADWA
THANA GOVINDGARH TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
e. MAHEEP KUMAR PANDEY S/O
CHANDRASEKHAR PRASAD, AGED
ABOUT 30 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM GAHIRA
TEHSIL MADWA THANA GOVINDGARH
TEHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
5. MANGAL S/O DADDI, AGED ABOUT 50
YEARS, OCCUPATION: AGRICULTURE
R/O GRAM GAHIRA TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
16. STATE OF MADHYA PRADESH
THROUGH COLLECTOR DISTRICT
REWA (MADHYA PRADESH)
.....RESPONDENTS
5 M.P.No.1503/2023
This petition coming on for admission this day, the court passed
the following:
ORDER
This misc. petition, under Article 227 of the Constitution of
India, has been filed against the order dated 20.01.2023 passed by
the Seventh Civil Judge, Senior Division, District Rewa in RCSA
No.105/2009, by which the application filed by the petitioners under
Order 6 Rule 17 and under section 151 of CPC for examining 2
witnesses has been rejected.
2. The crux of the matter is that the suit filed by the plaintiff was
partly decreed against which the petitioners have preferred RCSA
No.105/2009. By order dated 22.12.2021 the judgment and decree
passed by the trial court was set aside and it was directed that an
opportunity be given to the plaintiff to make a specific averment
with regard to their exclusive ownership. As no specific averments
were made as a result, the defendant no.4 (a and b) could not get an
opportunity to put forward their defence and accordingly, the matter
was remanded back with a liberty to the plaintiff to move an
application under Order 6 Rule 17 of CPC with regard to their
exclusive ownership and a similar opportunity to the defendants to
incorporate their consequential amendment. It was further directed
that the parties shall be free to lead evidence in support of their
amended pleadings.
3. The petitioners filed an application under order 6 Rule 17 of
CPC on the ground that by a registered sale deed dated 21.01.2014,
they have already alienated Khasra Nos.884, area 0.08 acres and 892,
area 0.023 hectares to Rajkali W/o Motilal and Rajkali is in
possession of the aforesaid land in the capacity of an owner. The
petitioners had filed an application under Order 1 Rule 10 and under
Order 6 Rule 17 of CPC for impleading Rajkali as party as well as to
incorporate the amendment, which has already been rejected. It was
further pleaded that since the plaintiff/petitioners are not the owner
and in possession of the land in dispute, therefore, they are not
seeking any relief in respect of Survey No.884 and 892 and
accordingly proposed the amendment that Survey No.884 and 892
may be deleted from the plaint.
4. Similarly, an application under section 151 of CPC was filed
for examining Rajendra Prasad Yadav and Shyamlal Saket on the
ground that Banspati S/o Tilakdhari, who had earlier given an
affidavit under Order 18 Rule 4 of CPC is now under the pressure of
the defendants and is not ready to depose in favour of the plaintiff.
5. By the impugned order, both the applications have been
rejected by the trial court.
6. Challenging the order passed by the Court below, it is
submitted by the counsel for the petitioner that the petitioner had
filed an application under Order 6 Rule 17 and under section 151 of
CPC in the light of liberty granted by the trial court. Therefore, the
trial court committed a material illegality by rejecting the
application.
7. Heard the learned counsel for the parties.
8. The Appellate Court by order dated 22.12.2021 passed in RCA
No.57A/2016 had directed as under :-
"18- bl izdkj ;g Li"V gS fd v/khuLFk U;k;ky; esa oknh
dh vksj ls nkfo;k lEifRr ij vius rUgk LoRo gksus ckcr~
Li"V ,oa iw.kZ vfHkopu ugha gq;s gSa vkSj u gh izfroknh
dzekad&4 ¼v ,oa c½ dks U;k;ky; esa viuk i{k j[kus dk dksbZ
volj fopkj.k ds nkSjku izkIr gqvk gSA QyLo:Ik izdj.k esa
oknh ls vius LoRo ds laca/k esa iw.kZ ,oa Li"V vfHkopu djk;k
tkuk rFkk izfroknh dzekad&4 dks izdj.k esa lquokbZ dk ,oa
lk{; is'k djus dk volj fn;k tkuk izdj.k ds U;k;ksfpr
fujkdj.k ds fy;s vko';d jgk gSA mDr leLr dk;Zokgh ds
ifj.kkeLo:i fopkj.k U;k;ky; }kjk fy;s x;s fu"d"kZ rFkk
izdj.k esa ikfjr fu.kZ; ,oa t;i= izHkkfor gksuk iw.kZr;k
laHkkfor gSA ,slh fLFkfr esa i{kdkjksa ds e/; lkjiw.kZ U;k; fd;s
tkus ds n`f"Vxr iz'uk/khu fu.kZ; ,oa t;i= vikLr fd;k
tkuk] oknh ls mlds lEiw.kZ vkjkth esa rUgk LoRo gksus ds
laca/k esa Li"V vfHkopu okni= esa lekfo"V djkuk ,oa bl gsrq
mls okni= esa la'kks/ku djus dh dk;Zokgh djus dk volj
fn;k tkuk] rRi'pkr izfroknhx.k dks ikfj.kkfed la'kks/ku
djus dk volj nsdj vfrfjDr okniz'u mHk; i{k ds la'kksf/kr
vfHkopuksa ds izdk'k esa fufeZr djus rFkk oknh i{k dks
vfrfjDr lk{; is'k djus rFkk izfroknhx.k dks oknh ds lHkh
lk{khx.k ij dwV ijh{k.k djus dk rFkk viuh vksj ls lk{;
is'k djus dk volj nsdj izdj.k iqu% fujkdj.k gsrq fopkj.k
U;k;ky; dks fjek.M fd;k tkuk U;k;ksfpr gSA"
9. Thus, it is clear from the direction that liberty was granted to
the plaintiffs to make a specific pleading with regard to their
exclusive ownership and to examine the witnesses accordingly. If the
application filed by the petitioners under Order 6 Rule 17 of CPC is
considered, then it is clear that the said application was not in
conformity with the remand order.
10. On the contrary, by filing an application under Order 6 Rule
17 of CPC, the petitioners wanted to give up their claim in respect of
Survey No.884 and 892, which according to them were alienated to
Rajkali during the pendency of the civil suit. The suit was filed in
the year 1992; whereas the sale deed was executed on 21.01.2014.
Since the alienation took place during the pendency of the suit,
therefore, the provision of section 52 of the Transfer of Property Act
would come into play and the plaintiffs cannot claim that since they
have alienated the suit property to the third person during the
pendency of the suit, therefore, now they do not have any right or
title in the land in dispute.
11. On the contrary, section 52 of the Transfer of Properties Act
provides that the purchaser of a property during the pendency of a
proceeding or suit, would be bound by the decree which may be
passed against his seller.
12. Thus, this Court is of the considered opinion that the trial court
did not commit any mistake by rejecting the application filed under
Order 6 Rule 17 of CPC.
13. So far as the application under section 151 of CPC is
concerned, the petitioners wanted to examine Ravendra Prasad
Yadav and Shyamlal Saket on the ground that earlier Banspati S/o
Tilakdhari had given his affidavit under Order 18 Rule 4 of CPC but
now is not ready to depose in favour of the petitioners. The matter
was remanded back by the appellate Court with certain directions.
14. Undisputedly, Banspati had given his affidavit in the first
round of litigation. It is not the case of the petitioners that after the
remand, Banspati had given an affidavit and now he does not want to
support the petitioners.
15. The petitioners were given liberty to make a specific pleading
with regard to their exclusive ownership and to examine the
witnesses in the light of the amended pleadings. Since the
petitioners did not file any application with regard to their exclusive
ownership, therefore, there is no question of examination of any
witness in order to fill up the lacuna, which was left by the petitioner
in the first round of litigation because such an attempt would be
contrary to the remand order.
16. Accordingly, this Court is of the considered opinion that no
jurisdictional error was committed by the trial court by rejecting both
the applications.
17. The petition fails and is hereby dismissed.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2023.03.23
13:08:14 +05'30'
