Gokaran Prasad Pyasi vs Prakash Kumar Pyasi
2023 Latest Caselaw 7199 MP

                           1               M.P. No.2343/2023


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 3rd OF MAY, 2023
              MISC. PETITION No. 2343 of 2023
BETWEEN:-

1.   GOKARAN PRASAD PYASI S/O LATE SHRI
     AWADH SHARAN PYASI, AGED ABOUT 64
     YEARS,  OCCUPATION:  AGRICULTURE
     RESIDENCE OF VILLAGE TAPA, TAHSIL
     RAMPUR BAGHELAN, DISTRICT SATNA
     (MADHYA PRADESH)



2.   SANTOSH KUMAR PYASI S/O LATE SHRI
     AWADH SHARAN PYASI, AGED ABOUT 54
     YEARS,   OCCUPATION:   OCCUPATION
     GOVT. EMPLOYEE, THROUGH THE POWER
     OF ATTORNEY HOLDER, SMT. URMILA
     MISHRA W/O SANTOSH KUMAR MISHRA,
     AGED ABOUT 53 YEARS, R/O VILLAGE
     TAPA   TAHSIL   RAMPUR   BAGHELAN
     DISTRICT SATNA R/O VILLAGE TAPA
     TAHSIL RAMPUR BAGHELAN, DISTRICT
     SATNA (MADHYA PRADESH)



3.   JAI KUMAR PYASI S/O LATE SHRI AWADH
     SHARAN PYASI, AGED ABOUT 48 YEARS,
     OCCUPATION: PRIVATE JOB, THROUGH
     THE POWER OF ATTORNEY HOLDER, SMT.
     URMILA MISHRA W/O SANTOSH KUMAR
     MISHRA, AGED ABOUT 53 YEARS, R/O
     VILLAGE    TAPA    TAHSIL    RAMPUR
     BAGHELAN DISTRICT SATNA R/O VILLAGE
     TAPA   TAHSIL   RAMPUR    BAGHELAN,
     DISTRICT SATNA (MADHYA PRADESH)



4.   SANAT KUMAR PYASI S/O LATE SHRI
     AWADH SHARAN PYASI, AGED ABOUT 44
     YEARS, OCCUPATION: PRIVATE JOB,
                                                  2                             M.P. No.2343/2023


       THROUGH THE POWER OF ATTORNEY
       HOLDER, SMT. URMILA MISHRA W/O
       SANTOSH KUMAR MISHRA, AGED ABOUT
       53 YEARS, R/O VILLAGE TAPA TAHSIL
       RAMPUR BAGHELAN DISTRICT SATNA R/O
       VILLAGE    TAPA   TAHSIL   RAMPUR
       BAGHELAN, DISTRICT SATNA (MADHYA
       PRADESH)



                                                                                 .....PETITIONER
(BY SHRI RAJENDRA PRASAD GUPTA- ADVOCATE)

AND

1.     PRAKASH KUMAR PYASI S/O LATE SHRI
       AWADH SHARAN PYASI, AGED ABOUT 59
       YEARS, R/O VILLAGE TAPA TEHSIL
       RAMPUR BAGHELAN, DISTRICT SATNA
       (MADHYA PRADESH)



2.     SHIV KUMAR @ SHIVWATI PANDEY W/O
       SHRI UMENDRA PANDEY D/O LATE SHRI
       AWADH SHARAN PANDEY, AGED ABOUT 48
       YEARS, R/O VILLAGE BARRO TAHSIL
       RAMPUR    NAIKIN, DISTRICT   SIDHI
       (MADHYA PRADESH)



3.     STATE OF MADHYA PRADESH THROUGH
       THE COLLECTOR, SATNA, DISTRICT
       SATNA (MADHYA PRADESH)



                                                                             .....RESPONDENTS
(NONE)

---------------------------------------------------------------------------------------------------------
         This petition coming on for admission this day, the court passed the
following:
                                   3                    M.P. No.2343/2023


                                   ORDER

This Miscellaneous Petition under Article 227 of the Constitution of India has been filed against the order dated 13.04.2023 passed by District Judge, Rampur Baghelan, District Satna in M.C.A. No.7/2021 and order dated 08.07.2021 passed by 1st Civil Judge Class-II, Rampur Baghelan, District Satna.

2. The facts necessary for disposal of the present petition in short, are that the respondents have filed a suit for declaration of title and permanent injunction. It is the case of the respondents that the plaintiff as well as defendants No. 1 to 5/Petitioners are the children of Late Awadhsharan Pyasi. Awadhsharan Pyasi had partitioned the property on 30.06.2005 and accordingly all the interested persons came in possession of their share. The partition deed is signed by all the necessary parties i.e. plaintiff, defendants No.1 to 5 and their father Awadhsharan Payasi as well as attesting the witnesses Mahaveer Prasad Pandey, Chandramani Mishra, Makardhwaj Pandey. Partition deed was scribed by Chandramani Mishra, Since, the plaintiff was looking after his parents, therefore, Awadhsharan Pyasi gave his share to the plaintiff by Will dated 18.12.2009. Accordingly, the plaintiff filed an application for mutation of his name on the basis of Will and accordingly, the name of the plaintiff was mutated. Only the defendants No. 1 and 2 challenged the order of mutation and by order dated 12.03.2013, the SDO, Rampur Baghelan set aside the order of Tehsildar and directed for mutation of the names of defendants No. 1 to 5 and Widow Indrawati. The plaintiff challenged the order passed by the SDO before the Additional Commissioner, Rewa, Division Rewa, who dismissed the appeal by

order dated 26.04.2018. The order of the Additional Commissioner, Rewa, Division Rewa was challenged by the plaintiff before the Board of Revenue, which too has been dismissed. Accordingly, the suit was filed for declaration of title and permanent injunction.

3. The plaintiff also filed an application under Order 39 Rule 1 and 2 of C.P.C.

4. The said application was opposed by the defendants.

5. The trial Court by order dated 08.07.2021 allowed the application thereby restraining the defendants from interfering with the peaceful possession of the plaintiff and the parties were directed to maintain the status-quo.

6. Being aggrieved by the order passed by the trial Court, the petitioners preferred an appeal which too has been dismissed by impugned order dated 13.04.2023.

7. Challenging the order passed by the Courts below it is submitted by the counsel for the petitioners that he has not prepared the case and, therefore, the case should be adjourned.

8. Heard learned counsel for the petitioners.

9. So far as the prayer for adjournment is concerned, it is really shocking that the adjournments are being sought on the ground that the counsel for the petitioners had decided not to prepare the case at home. Once the case is listed, it has to be argued by the counsel unless and until the situation is beyond his control. Merely because the counsel for the petitioners had decided not to prepare the case, cannot be a ground

to seek adjournment.

10. This Court in the case of Nandu @ Gandharv Singh Vs. Ratiram Yadav, decided on 09.01.2019 passed in M.P. No. 1887/2017 has held that a lawyer seeking adjournment for no reason amounts to professional misconduct.

11. In the present case also, the counsel for the petitioners was constantly insisting that since he has not prepared the case, therefore, the matter should be adjourned. This response by the counsel for the petitioners cannot be appreciated. Therefore, this Court is left with no other option but to compel the lawyer to point out the grounds which he has taken in the writ petition. Accordingly, the counsel for the petitioners read out two grounds "C" and "D" which reads as under:-

"(C) For that, impugned order is illegal and arbitrary because as per the provision under section 8 after death of Awadh Sharan all of the son and daughter of Awadh Sharan have equal right in the disputed land.

(D) For that, impugned order is illegal and arbitrary because it was passed without considering the judgment rendered by this Hon'ble court and held that co-owner of the land is not eligible for grant of permanent injunction."

12. Considered the grounds raised in the petition.

13. It is the case of the plaintiff that Awadhsharan Pyasi had partitioned the property during his lifetime, therefore, there is a specific averment with regard to severance of status. Whether the partition had actually taken place or not is a matter to be decided by the trial Court

but the plaintiff has not disputed that the petitioners/defendants are not the children of Awadhsharan Pyasi, therefore, the ground No. C is not relevant for adjudicating the present petition.

14. So far as, the ground No. D raised by the petitioners is concerned, the same is also not relevant for the simple reason that it is case of the plaintiff that a partition had taken place and Awadhsharan had given his share to the plaintiff by executing a Will. After the severance of status it cannot be claimed by a person that he is still Co-sharer in the property in dispute. Both the Courts below have given a concurrent finding of fact that the respondent is in possession of the property in dispute.

15. Under these circumstances, this Court is of the considered opinion that no mistake was committed by the Courts below in granting temporary injunction.

16. Accordingly, the order dated 13.04.2023 passed by District Judge, Ramput Baghelan, District Satna in M.C.A. No.7/2021 and order dated 08.07.2021 passed by 1st Civil Judge Class-II, Rampur Baghelan, District Satna are hereby affirmed.

17. The Civil Suit is pending since 2021 and more than 2 years have passed but the stage of the Civil Suit is not known. Accordingly, it is directed that subject to any administrative order passed in respect of early disposal of the suit, the trial Court shall make every endeavour to decide the civil suit within a period of six months from the date of resumption of Court working after the ensuing summer vacation. If necessary, the trial Court shall take up the matter on day to day basis. No date beyond the period of 4 days shall be fixed by the trial Court.

18. If any interlocutory application is filed, then the same shall be decided either on the same day or if reply is necessary, then the opposite party shall file it positively by the next day and the trial Court shall decide the application within a period of four days from the date of filing of the said application.

19. With aforesaid observations, the petition is dismissed.

(G.S. AHLUWALIA) JUDGE ashish

ASHISH KUMAR LILHARE 2023.05.05 11:54:46 +05'30'