Madhya Pradesh High Court
Vipin Kumar Pandey vs Smt. Kusum Kali Tiwari on 8 May, 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 8 th OF MAY, 2023
MISC. PETITION No. 1574 of 2021
BETWEEN:-
1. VIPIN KUMAR PANDEY S/O LATE RAMCHARIT
PANDEY, AGED ABOUT 22 YEARS, OCCUPATION:
FARMER R/O GRAM AND P.S. SAGRA, TEHSIL
HOOJUR, DISTRICT REWA (MADHYA PRADESH)
2. ASHISH KUMAR PANDEY S/O LATE RAMCHARIT
PANDEY, AGED ABOUT 20 YEARS, OCCUPATION:
FARMER R/O GRAM AND P.S. SAGRA, TEHSIL
HOOJUR, DISTRICT REWA (MADHYA PRADESH)
3. ABHISHEK KUMAR PANDEY S/O LATE
RAMCHARIT PANDEY, AGED ABOUT 19 YEARS,
OCCUPATION: FARMER R/O GRAM AND P.S.
SAGRA, TEHSIL HOOJUR, DISTRICT REWA
(MADHYA PRADESH)
4. SMT. ASHA PANDEY W/O LATE RAMCHARIT
PANDEY, AGED ABOUT 37 YEARS, OCCUPATION:
FARMER R/O GRAM AND P.S. SAGRA, TEHSIL
HOOJUR, DISTRICT REWA (MADHYA PRADESH)
5. GURU PRASAD PANDEY S/O LATE
RAMSWAYAMBER PANDEY, AGED ABOUT 38
YEARS, OCCUPATION: FARMER R/O GRAM AND
P.S. SAGRA, TEHSIL HOOJUR, DISTRICT REWA
(MADHYA PRADESH)
6. SMT. SUSHILA PANDEY W/O LATE
RAMSWAYAMBER PANDEY, AGED ABOUT 78
YEARS, OCCUPATION: FARMER R/O GRAM AND
P.S. SAGRA, TEHSIL HOOJUR, DISTRICT REWA
(MADHYA PRADESH)
7. URMILA MISHRA D/O LATE RAMSWAYAMBER
PANDEY, AGED ABOUT 35 YEARS, OCCUPATION:
FARMER R/O GRAM AND P.S. SAGRA, TEHSIL
HOOJUR, DISTRICT REWA (MADHYA PRADESH)
8. SMT. SATYAVATI MISHRA D/O LATE
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/10/2023
6:24:49 PM
2
RAMSWAYAMBER PANDEY, AGED ABOUT 38
YEARS, OCCUPATION: FARMER R/O GRAM AND
P.S. SAGRA, TEHSIL HOOJUR, DISTRICT REWA
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ASHOK KUMAR JAIN - ADVOCATE WITH SHRI ADITYA JAIN -
ADVOCATE)
AND
1. SMT. KUSUM KALI TIWARI W/O RAMNATH
TIWARI, AGED ABOUT 62 YEARS, R/O GRAM
SAGRA, P.S. AND TEHSIL HUJOOR, DISTRICT
REWA (MADHYA PRADESH)
2. RAMMANI PANDEY S/O LATE PARASNATH
PANDEY, AGED ABOUT 59 YEARS, R / O GRAM
SAGRA, P.S. AND TEHSIL HUJOOR, DISTRICT
REWA (MADHYA PRADESH)
3. BEWA RAMRATI PANDEY W/O LATE PARASNATH
PANDEY, AGED ABOUT 82 YEARS, R / O GRAM
SAGRA, P.S. AND TEHSIL HUJOOR, DISTRICT
REWA (MADHYA PRADESH)
4. SIDHMANI PANDEY S/O LATE PARASNATH
PANDEY, AGED ABOUT 48 YEARS R / O GRAM
SAGRA, P.S. AND TEHSIL HUJOOR, DISTRICT
REWA (MADHYA PRADESH)
5. SURESH PANDEY S/O LATE PARASNATH PANDEY,
AGED ABOUT 47 YEARS, R /O GRAM SAGRA, P.S.
AND TEHSIL HUJOOR, DISTRICT REWA (MADHYA
PRADESH)
6. SMT. SAVITRI DEVI D/O LATE PARASNATH
PANDEY, W/O CHANDRAMANI PANDEY, AGED
ABOUT 62 YEARS, R/O MOHALLA KUTHULIYA
WARD NO.45, P.S. BICHIYA, TEHSIL HUJOOR,
DISTRICT REWA (MADHYA PRADESH)
7. SMT. LALITA DEVI W/O SHRI DEVRAJ, AGED
ABOUT 60 YEARS, R/O GRAM BARA KOTHAR,
TEHSIL HUJOOR, DISTRICT REWA (MADHYA
PRADESH)
8. STATE OF M.P. THROUGH THE COLLECTOR
REWA (MADHYA PRADESH)
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/10/2023
6:24:49 PM
3
.....RESPONDENTS
(SHRI JAI SHUKLA - ADVOCATE FOR RESPONDENT NO.1, MS. PAPIYA
GOSH - PANEL LAWYER FOR RESPONDENT NO.8/STATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This petition under Article 227 of the Constitution of India has been filed
against the order dated 18.01.2021 passed by Ninth Additional District Judge,
Rewa in Miscellaneous Civil Appeal No.83/2020.
2. It is the case of the petitioners that Ramswayambar, Parasnath and
Ramavtar are real brothers. Ramavtar was bachelor and he died issueless.
Parasnath got the entire property mutated in his name and sold khasra No.718/1
to respondent No.1. Earlier Ramswayambar, another brother of Ramavtar had
filed a suit against the defendants which was registered as RCSA
No.3900104/2013 and in the said suit, by judgment and decree dated
07.01.2020, it was held that respondent No.1/Smt. Kusum Kali is in possession
of khasra No.718/1 and the suit filed by Ramswayambar in respect of khasra
No.718/1 was dismissed in the light of Section 34 of Specific Relief Act.
3. It is submitted by the counsel for the petitioners that the petitioners are
the grandsons of Ramswayambar. It is submitted that the present suit has been
filed by the petitioners for partition of khasra No.718/1 and they have also
challenged the sale deed executed in favour of respondent No.1. It is submitted
that an application under Order 39 Rule 1 & 2 of CPC was filed which was
rejected by the Trial Court and the appeal has also been dismissed by Ninth
Additional District Judge, Rewa in Miscellaneous Civil Appeal No.83/2020 by
order dated 18.01.2021. It is submitted that dismissal of the previous suit does
not amount to decree as the petitioners can always pray for partition. Further,
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/10/2023
6:24:49 PM
respondent No.1 is raising construction over the property in dispute and in case
if the nature of the property in dispute is changed, then it would cause
irreparable loss to the petitioners/plaintiffs.
4. Per contra, the petition is vehemently opposed by counsel for
respondent No.1. It is submitted that in view of Explanation 4 of Section 11 of
CPC, the subsequent suit is not maintainable. It is further submitted that it is not
the case of the petitioners that respondent No.1 is diminishing the value of the
property. If any construction is raised, then it would add the value to the
property and therefore, no irreparable loss would be caused to the petitioners.
5. Heard the learned counsel for the parties.
6. Whether the subsequent suit is maintainable in the light of Explanation
4 of Section 11 of CPC or not is not a subject matter of this petition, therefore,
it is left to the discretion of the Trial Court to be decided at appropriate stage.
7. So far as the prayer for temporary injunction is concerned, there is a
specific finding by the Trial Court in RCSA No.3900104/2013 that respondent
No.1 is in possession and the plaintiffs are not in possession of khasra
No.718/1.
8. Now the only question for consideration is as to whether respondent
No.1 can be restrained from raising any construction and alienating the property
thereby denying to enjoy the fruits of the property which is in her possession?
9. In case if any alienation takes place, then it will always be subject to the
provisions Section 52 of Transfer of Property Act.
10. So far as raising of construction is concerned, it is suffice to mention
here that respondent No.1 will not be diminishing the value of the property but
will be adding value to the property by raising construction over the same.
11. However, it is observed that respondent No.1 shall not claim any
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/10/2023
6:24:49 PM
equity on the basis of construction which shall be raised by her during the
pendency of the suit and any construction raised by respondent No.1 shall be
subject to the final outcome of the civil litigation.
12. With aforesaid observations, the order dated 18.01.2021 passed by
Ninth Additional District Judge, Rewa in Miscellaneous Civil Appeal
No.83/2020 is hereby affirmed.
13. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
vc
Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/10/2023
6:24:49 PM
