Madhya Pradesh High Court
Manorama vs Sudha on 2 May, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 2nd OF MAY, 2023
CIVIL REVISION No. 288 of 2023
BETWEEN:-
1. MANORAMA W/O LATE CHTURBIHARI
NIGAM, AGED ABOUT 80 YEARS,
OCCUPATION: HOUSEHOLD 77 G/H
SCHEME NO. 54 DISTRICT INDORE
(MADHYA PRADESH)
2. SMT. MAMTA W/O SHRI AVINSH
KANUNGO, AGED ABOUT 55 YEARS,
OCCUPATION: NAMALUM 77, G/H,
SCHEME NO. 54, INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY MS.PRANJALI PANDYA,ADVOCATE)
AND
1. SUDHA W/O SHRI NARENDRA SINGH
BAIS, AGED ABOUT 53 YEARS, 5C
BAKHATAR RAM NAGAR, DISTRICT
INDORE (MADHYA PRADESH)
2. MUKESH S/O LATE SHRI
CHATURBIHARI NIGAM 77, G/H,
SCHEME NO. 54, INDORE (MADHYA
PRADESH)
3. RAJENDRA KUMAR S/O SHRI
VISHNUPRASAD SHUKLA 94,
GANGANGA MAINROAD, INDORE
(MADHYA PRADESH)
4. MADHYA PRADESH THROUGH
2
JILADHEESH KARYALAY PRASHNIK
SANKUL, MOTI TABLEA, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
.........................................................................................................
This revision coming on for admission this day, the court passed
the following:
ORDER
1] This civil revision has been filed by the petitioners/defendants
no.1 & 2 under Section 115 of the C.P.C. assailing the order dated
23.3.2023 passed by the 26th Additional District Judge, Indore (M.P.)
in RCS No.101/2016 whereby, the application filed by the
petitioner/defendant No.1 under Order 7 Rule 11 of the C.P.C. has
been rejected.
2] In brief, the facts of the case are that the civil suit has been filed
by the respondent No.1 for cancellation of the sale deed and
permanent injunction of the suit property against the petitioners and
defendants No.2 to 4.
3] In the aforesaid civil suit, the defendant no.1 & 2/petitioners
have also filed their written statement and it is also contended in their
written statement that the petitioners have not sought the relief of
possession of the property despite the fact that the suit property is in
possession of the defendant No.4 and, hence, the suit is liable to be
rejected. Thus, a separate application to this effect under Order 7 Rule
11 of the CPC was also filed, citing Section 34 of the Specific Relief
Act, 1963.
4] The plaintiff filed her reply to the aforesaid application
contending that the suit property is a joint property hence, the plaintiff
has filed the suit that the plaintiff is an equal share holder of the suit
property at par with the defendants No.1 to 12. It is also stated that
the suit is at the stage of recording the plaintiff's evidence and only to
further delay the trial, the application has been filed, which is liable
to be dismissed.
5] The aforesaid application has been rejected by the learned Judge
of the trial court vide its impugned order holding that the suit has been
filed by the plaintiff with pleadings that the plaintiff is also entitled to
the equal share in the property along with the defendants No.1 to 12
and the property is a joint property as there is no partition and, in such
circumstances, there is no need for the plaintiff to seek the possession
of the property. The court has also held that the application under
Order 7 Rule 11 of the CPC is to be decided only on the averments
made in the plaint and on this ground also, no case for interference is
made out.
6] Contending that the finding recorded by the learned Judge of
the civil court is erroneous, Ms.Pandya, learned counsel for the
petitioners has also relied upon the decisions rendered by the Supreme
Court in the case of Shakuntala vs. Lt. Col. Mukhtiar Singh &
others reported as 2008(11) SCC 42 and Gian Chand vs. Krishen
Singh and another reported as 1978 AIR (Jammu and Kashmir) 16 .
7] Heard. On due consideration of the submissions and on perusal
of the documents filed on record, it is found that so far as the civil suit
is concerned, the plaintiff has pleaded that she and the other
defendants are the close relatives and belong to the same family, and
they are entitled to the equal share in the family property. The plaintiff
has also sought the cancellation of the sale deed, which has been
allegedly executed by the defendants no.1 to 3 in favour of the
defendant no.4 without there being any partition in the family
property. At this juncture, this court may fruitfully use the decision
rendered by the Supreme Court in the case of Md. Mohammad Ali v.
Jagadish Kalita, (2004) 1 SCC 271, at page 277 : the relevant para
of the same reads as under:-
"25. Possession of a property belonging to
several co-sharers by one co-sharer, it is trite,
shall be deemed that he possesses the property
on behalf of the other co-sharers unless there has
been a clear ouster by denying the title of other
co-sharers and mutation in the revenue records in
the name of one co-sharer would not amount to
ouster unless there is a clear declaration that the
title of the other co-sharers was denied and
disputed. No such finding has been arrived at by
the High Court."
(emphasis supplied)
8] In view of the aforesaid dictum of the Supreme Court, it is
apparent that in a suit for partition, when the property belongs to one
co-sharer, it shall be deemed to be held by that co-sharer on behalf of
the other co-sharers, and in such circumstances, in the considered
opinion of this court, it is not required by the plaintiff-co-sharer to
specifically claim possession as well, and thus, the suit shall not be
barred under proviso to u/s.34 of the Specific Relief Act, 1963.
Even otherwise, it found that in the plaint, the plaintiff has clearly
averred that the property is a joint family property which has been
sold without there being any partition, thus, on the face of it, plaintiff's
suit cannot be rejected merely on the basis of the plaint averments.
Hence also, at this stage the suit cannot be rejected under Or.7 rule 11
of CPC.
9] So far as the decisions relied upon by the counsel for the
petitioners are concerned, in both the cases, the judgments have been
delivered after the full trial and not on an application filed under
Order 7 Rule 11 of the CPC, thus, have no application in the facts and
circumstances of the case.
10] In such facts and circumstances of the case, this Court is of
considered opinion that no illegality or jurisdictional error has been
committed by the learned Judge of the civil court in rejecting the
application filed by the petitioner No.1 under Order 7 Rule 11 of the
CPC.
11] Resultantly, the petition being devoid of merit is hereby
dismissed. However, considering the fact that the civil suit itself is
filed in the year 2016, the learned Judge of the civil court is requested
to expedite the matter and conclude the same preferably within a
period of one year as it is also found that various amendments have
been made in the pleadings and appears that the matter is being
dragged for one reason or other by the defendants.
Certified copy, as per rules.
( SUBHODH ABHYANKAR)
JUDGE
moni
Digitally signed by MONI RAJU
MONI RAJU
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
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eba7af5a5244844c1, postalCode=452001, st=Madhya Pradesh,
serialNumber=3BFD07BEC0C790E4AEA8CB122D629549D1067813
B2AE8FB016F1BF08EE881126, cn=MONI RAJU
Date: 2023.05.06 17:06:45 +05'30'
