Manikchandra Chourasia vs Manoj Kumar Raikwar
2023 Latest Caselaw 4354 MP

                                  1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 20 th OF MARCH, 2023
                   MISC. APPEAL No. 2953 of 2021

BETWEEN:-
MANIKCHANDRA CHOURASIA S/O SHRI BARELAL
CHOURASIA, AGED ABOUT 62 YEARS, OCCUPATION:
AGRICULTURIST R/O IN FRONT OF RADIO COLONY
PANNA ROAD, CHHATARPUR TAHSIL AND DISTRICT
CHHATARPUR (MADHYA PRADESH)

                                                          .....APPELLANT
(BY SHRI J.L. SONI - ADVOCATE )

AND
1.    MANOJ KUMAR RAIKWAR S/O POORANLAL
      RAIKWAR, AGED ABOUT 32 YEARS, R/O DERI
      ROAD, CHHATARPUR TAHSIL AND DISTRICT
      CHHATARPUR (MADHYA PRADESH)

2.    SURENDRA PRASAD DWIVEDI S/O SHRI SHARDA
      PRASAD DWIVEDI AGED ABOUT 60 YEARS R/O
      MAHARANA PRATAP NAGAR GALI NO. 2 SATAI
      ROAD, CHHATARPUR, TAH AND DISTRICT
      CHHATARPUR (MADHYA PRADESH)

3.    RAMESH KORI S/O MULLOO KORI, AGED ABOUT
      46 YEARS, R/O VILLAGE KHARGAPUR TAH.
      KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
      PRADESH)

4.    STATE  OF   M.P. THR. COLLECTOR DISTT.
      CHHATARPUR (MADHYA PRADESH)

                                                       .....RESPONDENTS
(MS. SHANTI TIWARI - PANEL LAWYER FOR THE STATE)

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

The record of the Appellate Court has been received. This Miscellaneous Appeal under Order 43 Rule 1(u) CPC has been filed against the order dated 22.09.2021 passed by 5th District Judge, Chhatarpur, District Chhatarpur in RCA No.38/2019 thereby remanding the matter back to the trial Court after setting aside the judgment and decree dated 30.11.2013 passed by 1st Civil Judge, Class-I, Chhatarpur in Civil Suit No.51-A/2013.

2. The facts necessary for disposal of the present appeal in short are that the respondent No.3 entered into an agreement to sell Khasra No.1161/2 area 1.623 hectares for a consideration amount of Rs.1,00,000/- and an amount of Rs.80,000/- was paid on the date of execution of agreement to sell. Since the

appellant came to know that the defendant is trying to alienate the land, therefore, he filed a suit for specific performance of contract. Thereafter, it appears that during the pendency of the suit, the matter was compromised between the appellant and the respondent No.3 and accordingly, a compromise decree was passed on 30.11.2013 and it was directed that the respondent No.3 shall execute a sale deed in favour of the appellant or in the alternative, it was also observed that if the execution of the sale deed is not possible, then the respondent No.3 shall refund the entire amount of Rs.1,00,000/- with 12% interest.

3. It appears that the respondents No.1 and 2 filed an appeal under Section 96 of CPC on the ground that on 22.04.2013, the respondent No.3 had already alienated the suit property to them and a compromise decree has been obtained by the appellant and respondent No.3 without impleading the respondents No.1 and 2 as party to the suit.

4. By the impugned order dated 22.09.2021, 5th District Judge, Chhatarpur has allowed the appeal and has remanded the matter back to the trial Court to

give an opportunity to the respondents No.1 and 2.

5. Challenging the order passed by the Court below, it is submitted by the counsel for the appellant that since the appellant was not aware of the execution of the sale deed in favour of the respondents No.1 and 2, therefore, they were not impleaded as party and thus, the order of remand is bad. However, the execution of sale deed in favour of respondents No.1 and 2 by respondent No.3 on 22.04.2013 is not disputed.

6. Heard the learned counsel for the appellant.

7. It is true that the sale deed was executed in favour of respondents No.1 and 2 by respondent No.3 on 22.04.2013 and thus, the principle of Section 52 of Transfer of Property Act would apply. However, in the present case, a decree on merits has not been passed but a compromise decree has been passed. There is nothing on record to show that the respondent No.3 had ever pointed out to the trial Court that he has already alienated the property in dispute to the respondents No.1 and 2. It appears that the respondent No.3 played fraud on the appellant as well as on respondents No.1 and 2. On one hand, he alienated the property to the respondents No.1 and 2 and at the same time, he entered into a compromise with the appellant and filed an application under Order 23 Rule 3 CPC. Whether the respondents No.1 and 2 are bonafide purchasers or not is a question, which is to be decided by the trial Court but

one thing is clear that even after applying the principle of Section 52 of Transfer of Property Act, since no decree on merits was passed but a compromise decree was passed on the application filed by the appellant and the respondent No.3, the First Appellate Court did not commit any mistake by extending an opportunity of hearing to the respondents No.1 and 2.

8. Accordingly, no case is made out warranting interference.

9. The order dated 22.09.2021 passed by 5th District Judge, Chhatarpur, District Chhatarpur in RCA No.38/2019 is hereby affirmed.

10. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.03.21 14:37:37 +05'30'