Madhya Pradesh High Court

Digambar Singh (Dead) Thr. Lrs. ... vs Smt. Hirabai (Dead) Thr. Lrs. Shri ... on 29 March, 2023

Author: Gurpal Singh Ahluwalia

                          1


 IN THE HIGH COURT OF MADHYA PRADESH
             AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 29th OF MARCH, 2023
               MISC. PETITION No. 1345 of 2021

BETWEEN:-

1.    DIGAMBAR SINGH (DEAD) THR. LRS.
      RAMSAKHI W/O DIGAMBAR SINGH
      TIWARI, AGED ABOUT 80 YEARS,
      OCCUPATION: HOUSE WIFE VILLAGE
      KARMAU      TEHSIL     RAMPUR
      BAGHELAN DISTT. SATNA (MADHYA
      PRADESH)
2.    DINESH   SINGH  TIWARI   S/O
      DIGAMBAR SINGH TIWARI, AGED
      ABOUT 62 YEARS, OCCUPATION:
      AGRICULTURE MADHAVGARH TEH.
      RAGHURAJNAGAR       (MADHYA
      PRADESH)
3.    PRAKASH TIWARI S/O DIGAMBAR
      SINGH TIWARI, AGED ABOUT 56
      YEARS,   OCCUPATION:    GOVT.
      SERVICE   MADHAVGARH     TEH.
      RAGHURAJNAGAR        (MADHYA
      PRADESH)
4.    ASHOK    SINGH   TIWARI  S/O
      DIGAMBAR SINGH TIWARI, AGED
      ABOUT 52 YEARS, OCCUPATION:
      AGRICULTURE VILLAGE KARMAU
      TEH. RAMPUR RAGHURAJNAGAR
      (MADHYA PRADESH)
5.    ANIL SINGH TIWARI S/O DIGAMBAR
      SINGH TIWARI, AGED ABOUT 46
      YEARS, OCCUPATION: JOURNALIST
      VAIBHAV LAXMI NAGAR IN FRONT
      OF BOMBAY HOSPITAL SAI KRIPA
      COLONY (MADHYA PRADESH)
                           2


6.    SMT. DEEPA DWIVEDI W/O RAMESH
      DWIVEDI, AGED ABOUT 50 YEARS,
      OCCUPATION:    GOVT.     SERVICE
      KABIR   NAGAR    448  MIG    KBT
      AASHIYANA    VAS    NEAR   AIIMS
      RESIDENTIAL (CHHATTISGARH)
7.    JAIKARAN SINGH (DEAD) THR. LRS.
      SHOBHA   SINGH    TIWARI   W/O
      JAIKARAN SINGH TIWARI, AGED
      ABOUT 75 YEARS, OCCUPATION:
      HOUSEWIFE KARMAU PRESENLTY
      AT   BARDAHIH    ROAD     NEAR
      DHIRENDRA GAS AGENCY SATNA
      TEH. RAGHURAJNAGAR (MADHYA
      PRADESH)
8.    AJAY SINGH TIWARI S/O JAIKARAN
      SINGH TIWARI, AGED ABOUT 54
      YEARS, KARMAU PRESENLTY AT
      BARDAHIH ROAD NEAR DHIRENDRA
      GAS    AGENCY    SATNA     TEH.
      RAGHURAJNAGAR          (MADHYA
      PRADESH)
9.    VIJAY SINGH TIWARI S/O JAIKARAN
      SINGH TIWARI, AGED ABOUT 47
      YEARS,             OCCUPATION:
      AGRICULTURE KARMAU PRESENLTY
      AT    BARDAHIH    ROAD     NEAR
      DHIRENDRA GAS AGENCY SATNA
      TEH. RAGHURAJNAGAR (MADHYA
      PRADESH)
10.   SMT.    SUNITA    PANDEY    W/O
      RAMVACHAN PANDEY, AGED ABOUT
      60 YEARS, OCCUPATION: HOUSEWIFE
      VILLAGE BHATVARIYA BASDIHA
      POST PANDU DALTONGANJ GADHWA
      TOWN JHARKHAND (JHARKHAND)
11.   SMT. KIRAN PANDEY W/O RAJENDRA
      PANDEY, AGED ABOUT 56 YEARS,
      OCCUPATION: HOUSEWIFE VILLAGE
      BHATVARIYA BASDIHA POST PANDU
      DALTONGANJ     GADHWA     TOWN
      JHARKHAND (JHARKHAND)
                           3


12.   SMT. RITA DWIVEDI W/O SHRI
      NANDKUMAR     DWIVEDI,  AGED
      ABOUT 47 YEARS, OCCUPATION:
      HOUSEWIFE VILLAGE HARDI POST
      GUD (MADHYA PRADESH)
13.   SHRI JAGDHARAN SINGH S/O SHRI
      TEJBHAN SINGH TIWARI, AGED
      ABOUT 84 YEARS, OCCUPATION: RET.
      DOCTOR VILLAGE KARMAU TEH.
      RAMPUR           RAGHURAJNAGAR
      (MADHYA PRADESH)
14.   SHRI ARUN KUMAR (DEAD) THR. RLS.
      SMT. KESAR BAI W/O ARUN KUMAR,
      AGED     ABOUT     65    YEARS,
      OCCUPATION: HOUSEWIFE VILLAGE
      KARMAU TEH. RAMPUR BAGHELAN
      (MADHYA PRADESH)
15.   RAJESH TIWARI S/O ARUN KUMAR,
      AGED     ABOUT     45   YEARS,
      OCCUPATION: BUSINESS VILLAGE
      KARMAU TEH. RAMPUR BAGHELAN
      (MADHYA PRADESH)
16.   SHRI INDRA KUMAR (DEAD) THR.
      LRS. USHA SINGH TIWARI W/O INDRA
      KUMAR SINGH TIWARI, AGED ABOUT
      46 YEARS, OCCUPATION: HOUSEWIFE
      VILLAGE KARMAU TEH. RAMPUR
      BAGHELAN (MADHYA PRADESH)
17.   SMT. SANDHYA TRIPATHI W/O SHRI
      DHIRENDRA TRIPATHI, AGED ABOUT
      35 YEARS, OCCUPATION: HOUSEWIFE
      SAVARKAR     NAGAR    KAMADGIRI
      HOSPITAL (MAHARASHTRA)
18.   SMT. VIDYADEVI SINGH (DEAD) THR.
      LRS. SMT. BABY DWIVEDI W/O SHRI
      RAMSHIROMANI DWIVEDI, AGED
      ABOUT 62 YEARS, OCCUPATION:
      HOUSEWIFE HARDI KAPSA TEH.
      SEMARIYA (MADHYA PRADESH)
19.   SMT. MAMTA DEVI W/O SHRI
      BHAMBHU PRASAD TRIPATHI, AGED
      ABOUT 54 YEARS, OCCUPATION:
                             4


      HOUSEWIFE    AANAPUR        DISTT.
      BHADOHI (UTTAR PRADESH)
20.   SMT.   SUMAN    DWIVEDI  W/O
      KEVLASHANKAR DWIVEDI, AGED
      ABOUT 45 YEARS, OCCUPATION:
      HOUSEWIFE    JAMUNIPUR  JHUSI
      ROAD (UTTAR PRADESH)
21.   SMT. LALITA DEVI W/O SHRI KAMAL
      KUMAR, AGED ABOUT 60 YEARS,
      OCCUPATION: HOUSEWIFE VILLAGE
      KARMAU TEH. RAMPUR BAGHELAN
      (MADHYA PRADESH)
22.   SHRI VIPIN KUMAR S/O SHRI KAMAL
      KUMAR, AGED ABOUT 40 YEARS,
      OCCUPATION:     PRIVATE     JOB
      VILLAGE KARMAU TEH. RAMPUR
      BAGHELAN (MADHYA PRADESH)
23.   SHRI VINOD TIWARI S/O SHRI
      JAGSHARAN SINGH, AGED ABOUT 46
      YEARS, OCCUPATION: ADVOCATE
      VILLAGE KARMAU TEH. RAMPUR
      BAGHELAN (MADHYA PRADESH)
                                             .....PETITIONERS
(BY SHRI T.S.RUPRAH - SENIOR ADVOCATE WITH SHRI UMASHANKAR
TIWARI - ADVOCATE)

AND

1.    SMT. HIRABAI (DEAD) THR. LRS. SHRI
      SHANKAR SINGH S/O RAMMILAN
      SINGH TIWARI, AGED ABOUT 75
      YEARS, MANAKHARI TEHSIL RAMPUR
      BAGHELAN DISTT. SATNA (MADHYA
      PRADESH)
2.    SHRI OMKAR SINGH S/O RAMMILAL
      SINGH TIWARI, AGED ABOUT 72
      YEARS, MANAKHARI TEH. RAMPUR
      BAGHELAN (MADHYA PRADESH)
3.    SHRI KEDAR SINGH S/O RAMMILAL
      SINGH TIWARI, AGED ABOUT 68
      YEARS, MANAKHARI TEH. RAMPUR
                            5


      BAGHELAN (MADHYA PRADESH)
4.    PHOOLMATI D/O RAMMILAN SINGH
      TIWARI, AGED ABOUT 65 YEARS,
      MANAKHARI     TEH.    RAMPUR
      BAGHELAN (MADHYA PRADESH)
5.    SAROJIYA D/O RAMMILAN SINGH
      TIWARI, AGED ABOUT 62 YEARS,
      MANAKHARI     TEH.    RAMPUR
      BAGHELAN (MADHYA PRADESH)
6.    JALEBIYA D/O RAMMILAN SINGH
      TIWARI, AGED ABOUT 58 YEARS,
      MANAKHARI     TEH.    RAMPUR
      BAGHELAN (MADHYA PRADESH)
7.    KALADEVI (DEAD) THR. LRS. SHRI
      SURENDRA S/O RAMSNEHI, AGED
      ABOUT 47 YEARS, VILLAGE PODI TEH.
      NAGODH (MADHYA PRADESH)
8.    SHRI NARENDRA S/O RAMSNEHI,
      AGED ABOUT 65 YEARS, VILLAGE
      PODI  TEH. NAGODH    (MADHYA
      PRADESH)
9.    SHRI MAHENDRA S/O RAMSNEHI,
      AGED ABOUT 43 YEARS, VILLAGE
      PODI  TEH. NAGODH    (MADHYA
      PRADESH)
10.   SANTOSH DEVI W/O RAJENDRA,
      AGED ABOUT 44 YEARS, VILLAGE
      PODI TEH. NAGODH (MADHYA
      PRADESH)
11.   SHAILENDRA S/O SHRI RAJENDRA,
      AGED ABOUT 31 YEARS, VILLAGE
      PODI TEH. NAGODH (MADHYA
      PRADESH)
12.   PRADEEP S/O SHRI RAJENDRA, AGED
      ABOUT 29 YEARS, VILLAGE PODI
      TEH. NAGODH (MADHYA PRADESH)
13.   ABHILASHA D/O SHRI RAJENDRA,
      AGED ABOUT 18 YEARS, VILLAGE
      PODI TEH. NAGODH (MADHYA
                                     6


          PRADESH)
                                                            .....RESPONDENTS
   (RESPONDENT NO.3 BY SHRI VINOD KUMAR DUBEY - ADVOCATE)

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

1. This petition under Article 227 of the Constitution of India has been filed against the order dated 28.1.2021 passed by the Commissioner, Rewa Division Rewa in R.C.M.S.No.37/Revision/2020-21.

2. It is the case of the petitioners that the respondents had filed a Civil Suit No.102-A/2000 by pleading inter alia that the petitioners and the respondents are the members of the same family and the family had ancestral property in two villages, i.e. Karmau and Mungwari of Tahsil Rampur Baghelan, District Satna. The suit was decreed by the trial court by judgment and decree dated 15.2.2002 and half share in the property was allotted to the respondents. Aggrieved by the judgment and decree passed by the trial court, the petitioners preferred a Civil Appeal No.18-A/2002 and the appeal filed by the petitioners was partially allowed and instead of granting half share to the respondents, the appellate court modified the share of the parties.

3. Being aggrieved by the judgment and decree passed by the first appellate court, the parties preferred Second Appeal before this Court. The respondent no.3 filed an application for partition and for separate possession as per decree passed by the trial court thereby concealing the decree passed by the first appellate court. The Tahsildar served notice upon the petitioners and accordingly the petitioners submitted reply that

the decree passed by the trial court is not executable because the same has been modified by the appellate court. By accepting the objection of the petitioners, the Tahsildar Rampur Baghelan dismissed the application for partition and separate possession. Being aggrieved by the said order, the respondent no.3 made a complaint to the Collector Satna that the Tahsildar is not obeying the decree passed by the civil court. The Collector without giving an opportunity of hearing and without registering the case directed the S.D.O. Rampur Baghelan that the decree passed by the trial court be executed and accordingly the S.D.O. Rampur Baghelan by its order dated 29.7.2011 passed in revenue case No.341/B-121/2010-11 directed the Tahsildar Rampur Baghelan to execute the decree passed by the civil court. The order of the Sub Divisional Officer was challenged by the petitioners before the Board of Revenue and the Board of Revenue remanded the matter back to the Commissioner, Rewa Division Rewa to pass a suitable order and accordingly Commissioner, Rewa Division Rewa has passed the impugned order dated 28.1.2022.

4. It is submitted by counsel for the petitioners that once the decree of the trial court was modified by the first appellate court, therefore, the decree passed by the trial court is merged in the decree passed by the first appellate court and only the decree passed by the first appellate court is executable. Since the shares of the parties were modified by the first appellate court, therefore, no partition can take place on the basis of the decree passed by the trial court.

5. Per contra, it is submitted by counsel for the respondents that the Commissioner in the impugned order has already clarified that the

Tahsildar had dismissed the case for partition after taking note of the objection filed by the petitioners which was to the effect that the decree passed by the trial court has been modified but in fact the Tahsildar should have executed the modified decree passed by the first appellate court.

6. Heard learned counsel for the parties.

7. It is not the case of the petitioners that the execution of the decree passed by the first appellate court has been stayed by the High Court. The only grievance of the petitioners is that once the decree passed by the trial court was modified by the first appellate court, therefore, the Tahsildar did not commit any mistake by dismissing the application for partition and possession on the ground that the decree passed by the trial court has been modified. However, it is not the case of the petitioner that the decree passed by the trial court was set aside by the first appellate court but it is the admitted fact that the shares adjudicated by the trial court were modified and a lesser share was given. In absence of any stay by the High Court, the decree passed by the first appellate court is executable and under these circumstances, the Tahsildar should not have dismissed the application for partition and separate possession.

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

9. The petition fails and is hereby dismissed. The interim order dated 9.1.2023 is hereby vacated.

(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.04.01 17:39:09 +05'30'