Rajendra @ Rajan vs The State Of Madhya Pradesh
2023 Latest Caselaw 14564 MP

                               -1-


       IN THE HIGH COURT OF MADHYA PRADESH
                    AT I N D O R E
                        BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA
               ON THE 5th OF SEPTEMBER, 2023


                 FIRST APPEAL No. 540 of 2014

BETWEEN:-
RAJENDRA @ RAJAN S/O SHYAMVEL @ SEMUAL, AGED ABOUT 62
YEARS, OCCUPATION: SERVICE 851-A, NEPIER TOWN JABALPUR
(MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI HARISH JOSHI, ADVOCATE)

AND
     THE STATE OF MADHYA PRADESH COLLECTOR / DISTRICT
1.
     MAGISTRATE INDORE (MADHYA PRADESH)
   ARUN @ YURUN S/O SHYAMVEL @ SEMUAL, AGED ABOUT 65 YEARS,
2. OCCUPATION: RETIRED KHER SECTOR AMBAMATH,EAST MUMBAI
   (MAHARASHTRA)
   SHOBHA D/O MAJOR VIJAI DATTA, AGED ABOUT 28 YEARS,
3. OCCUPATION: HOUSE HOLD WORK 17,DARIYAGANJ,NEW DELHI
   (DELHI)
     SHIKHA D/O MAJOR VIJAI DATTA, AGED ABOUT 37 YEARS,
4.
     OCCUPATION: SERVICE 17,DARIYAGANJ,NEW DELHI (DELHI)
   SMT. NALINI D/O LATE ADMAND @ ADVIN, AGED ABOUT 23 YEARS,
5. OCCUPATION: HOUSE HOLD WORK 2,VILLA ROAD EXTENSION
   CROSS ROAD SAINT THOMAS TOWN, BANGLORE (KARNATAKA)
   AERIK S/O ADMADN @ADVIN, AGED ABOUT 67 YEARS, OCCUPATION:
6. RTD. 74,WHITE HOUSE HENJUR,BANGLORE MAIN RD.POST
   KOTHANUR, BANGLORE (KARNATAKA)
   SATI SHNEEL S/O ADMAND @ADVIN, AGED ABOUT 63 YEARS,
7. OCCUPATION: SERVICE 2,VILLAGE ROAD EXTENSION CROSS ROAD
   SAINT THOMAS TOWN, BANGLORE (KARNATAKA)
                                -2-


   DEEPAK LEBART S/O ADMAND @ ADVIN, AGED ABOUT 61 YEARS,
8. OCCUPATION: RETD. 104,JESPAR BLOCK PETRA PARK APARTMENT
   RAMMURTI MAIN ROAD DISTRICT BANGLORE (KARNATAKA)
     QWENIO FALORINS S/O ADMAND @ ADVIN, AGED ABOUT 58 YEARS,
9.
     OCCUPATION: SERVICE (TEACHER) DUBAI (DAMAN & DIU)
    SULOCHNA GRESS ALEXEJENDER D/O L.B.HARMAN, AGED ABOUT
10. 71 YEARS, OCCUPATION: HOUSE HOLD WORK 8,DEFENCE COLONY,
    EKADUTHAGAL,CHENNAI (CHANDIGARH)
    SMT. NALINI CHHATERJI D/O L.B.HARMAN, AGED ABOUT 63 YEARS,
11. OCCUPATION:    HOUSE    HOLD    WORK     C-88,VED  VIHARA,
    A.W.H.O.TRIMULCHERI SICKANDABAD -15 A.P. (ANDHRA PRADESH)
    TEMINA ALFRED D/O LATE MAJOR C.K.DURAISWANI, AGED ABOUT
    43 YEARS, OCCUPATION: HOUSE HOLD WORK 25,GRESS
12.
    GARDEN,ITUPATTI BUNGLOW T.V.K.NAGAR, PUTTUR TI RANCHI
    (UTTAR PRADESH)
    DECED.KANHAIYALALTHROUGH     LRS.MANOHAR       S/O
    KANHAIYALAL, AGED ABOUT 51 YEARS, OCCUPATION: NOT
13.
    KNOWN 147,SATAR TEHSIL MHOW DISTRICT INDORE M.P.
    (MADHYA PRADESH)
    DECED. RAGHUVEER THROUGH LRS. SMT. SAVITRIBAI W/O
    MANGILAL, AGED ABOUT 51 YEARS, OCCUPATION: HOUSE HOLD
14.
    WORK 131,GAIKWAD,TEHSIL MHOW DISTRICT INDORE M.P.
    (MADHYA PRADESH)
    DECED.RAGHUVEER THROUGH LRS. MAMTA BAI W/O RAJKUMAR,
    AGED ABOUT 34 YEARS, OCCUPATION: HOUSE HOLD WORK
15.
    131,GAIKWAD,TEHSIL MHOW DISTRICT INDORE M.P. (MADHYA
    PRADESH)
    DECED. RAGHUVAR THROUGH LRS. SANTOSH S/O MANGILAL,
    AGED ABOUT      35 YEARS,  OCCUPATION:  NOT    KNOWN
16.
    131,GAIKWAD,TEHSIL MHOW DISTRICT INDORE M.P. (MADHYA
    PRADESH)
    DECED.RAGHUVAR THROUGH LRS. SANDEEP S/O MANGILAL, AGED
    ABOUT     30   YEARS,   OCCUPATION:     NOT    KNOWN
17.
    131,GAIKWAD,TEHSIL MHOW DISTRICT INDORE M.P. (MADHYA
    PRADESH)
    MANGILAL S/O NANKU OCCUPATION: AGRICULTURIST VILLAGE
18. GAIKWAD TEHSIL MHOW, DISTRICT INDORE M.P. (MADHYA
    PRADESH)
19. DECED,RADHESHYAM THROUGH LRS. SMT. BHAGWANTI BAI W/O
                             -3-


  RADHESHYAM LODHA OCCUPATION: HOUSE HOLD WORK
  VILLAGE GAIKWAD TEHSIL MHOW, DISTRICT INDORE M.P.
  (MADHYA PRADESH)
    DECED.RADHESYAM THROUGH LRS. SMT. MEENABAI W/O
    RAMBABU OCCUPATION: HOUSE HOLD WORK VILLAGE
20.
    GUJARKHEDA,TEHSIL MHOW DISTRICT INDORE M.P. (MADHYA
    PRADESH)
    DECED.RADHESHYAM THROUGH LRS. SMT. SAVITA W/O JEETMAL
    VERMA D/O LATE RADHESHYAM LODHA, AGED ABOUT 41 YEARS,
21.
    OCCUPATION: HOUSE HOLD WORK VILLAGE GAIKWAD TEHSIL
    MHOW, DISTRICT INDORE M.P. (MADHYA PRADESH)
    DECED.RADHESHYAM THROUGH LRS. SMT. SANTOSHI BAI W/O
    SANJU D/O LATE RADHESHYAM LODHA OCCUPATION: HOUSE
22.
    HOLD WORK MAIN ROAD GUJARKHEDA,TEHSIL MHOW DISTRICT
    INDORE M.P. (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS.SMT.
    PRITIBALA D/O LATE RADHESHYAM LODHA OCCUPATION:
23.
    HOUSEHOLD WORK VILL-GIKWAD, TEH-MHOW, DISTT-INDORE
    (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS. SMT. SANDHYA
    W/O BHARAT D/O LATE RADHESHYAM LODHA OCCUPATION:
24.
    HOUSEHOLD WORK VILL-GAIKWAD, TEH.-MHOW, DISTT-INDORE
    (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS. SMT. NEETU
    W/O PARBEND D/O LATE RADHESHYAM LODHA OCCUPATION:
25.
    HOUSEHOLD WORK VILL-GAIKWAD, TEH.-MHOW, DISTT-INDORE
    (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS. SMT. SUSHMA
    W/O DHARMENDRA D/O LATE RADHESHYAM LODHA OCCUPATION:
26.
    HOUSEHOLD WORK SOUTH SHANTINAGAR, MAHOWGAON, TEH-
    MHOW, DISTT-INDORE (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS. KU. PRERNA
    D/O LATE RADHESHYAM D/O LATE RADHESHYAM LODHA
27.
    OCCUPATION: HOUSEHOLD WORK VILL-GAIKWAD, TEH.-MHOW,
    DISTT-INDORE (MADHYA PRADESH)
    DECED. RADHESHYAM BUDDHA LODHA THRU. LRS. KU. AMBIKA
    MINOR THROUGH MOTHER SMT. BHAGVANTIBAI D/O LATE
28.
    RADHESHYAM LODHA OCCUPATION: STUDENT VILL-GAIKWAD,
    TEH.-MHOW, DISTT-INDORE (MADHYA PRADESH)
29. JEETMAL VERMA S/O CHHOTALAL VERMA, AGED ABOUT 43
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      YEARS, OCCUPATION: AGRICULTURIST VILL-GAIKWAD, TEH.-
      MHOW, DISTT-INDORE (MADHYA PRADESH)
    DECED. ONKARLAL THROUGH LRS. GAYA PRASAD S/O LATE
30. ONKARLAL LODHA OCCUPATION: AGRICULTURIST VILL-
    KISHANGANJ, TEH-MHOW, DISTT-INDORE (MADHYA PRADESH)
    DECED. ONKARLAL THROUGH LRS. RANCHHOD S/O LATE
31. ONKARLAL LODHA OCCUPATION: AGRICULTURIST VILL-
    KISHANGANJ, TEH-MHOW, DISTT-INDORE (MADHYA PRADESH)
    SUNDARDAS S/O GURUDATTAMAL OCCUPATION: AGRICULTURIST
32. VILL-KISHANGANJ,  TEH-MHOW,  DISTT-INDORE   (MADHYA
    PRADESH)
    SMT. PADMA VERMA W/O PARAMRAM VERMA OCCUPATION:
33. HOUSEHOLD WORK VILL-KISHANGANJ, TEH-MHOW, DISTT-
    INDORE (MADHYA PRADESH)
      PRESIDENT J.B. GRIHANIMAN SAHAKARI SANSTHA MYDT. INDORE
34.
      103, NANDANVAN COLONY, INDORE (MADHYA PRADESH)
    SURESH S/O BALKRISHNA PILLAI OCCUPATION: BUSINESS D-11,
35. CHINTAMANI    RESIDENCY,  VIDHYAPEETH,   PUNE    (M.H.)
    (MAHARASHTRA)
                                                      .....RESPONDENTS
(RESPONDENT / STATE BY SHRI KUSHAL GOYAL, DEPUTY ADVOCATE
GENERAL)
(RESPONDENT NO.17 BY SHRI RISHIRAJ TRIVEDI, ADVOCATE)
(RESPONDENT NO.27 BY SHRI VISHAL BAHETI, ADVOCATE)
         This petition coming on for hearing this day, the court passed the
following:
                                ORDER

The appellant / plaintiff has filed the present appeal under Section 96 of the Code of Civil Procedure, 1908 challenging the validity of order dated 22.03.2014, whereby the suit has been dismissed on preliminary issue Nos.7 & 8.

02. Facts of the case reveal that the plaintiff filed a suit in the month of September, 2011 for decree of partition, possession and mesne profit valued at Rs.1,10,255/- and paid court fee of Rs.3,026/-.

According to the plaintiff, being the legal heirs of late Shyamvel @ Semual, he and respondents No.2 to 12 are entitled to get equal share by way of partition of the suit properties described in paragraphs - 1- A & B of the suit.

03. The defendants appeared and filed a written statement. Thereafter, the learned Additional District Judge framed the issues for adjudication. On an objection raised by the defendants, learned Additional District Judge took up issues No.5, 6, 7 & 8 to decide as preliminary issues. So far as issue No.5 relates to res judicata is concerned, learned Additional District Judge held that the suit is not barred by principle of res judicata. So far as issue No.6 relates to cause of action is concerned, the Court has held that it cannot be decided without recording evidence. So far as issue No.7 is concerned, the learned Additional District Judge has held that the plaintiff has wrongly valued the suit to Rs.1,10,255/-, therefore, looking to the relief claimed and value of the property, which is an agricultural land, the plaintiff has overvalued the suit and the same is liable to be decided by Civil Judge, Class - II. Hence, the Court of Additional District Judge is not having a pecuniary jurisdiction to decide the civil suit. Simultaneously, the Court has decided issue No.8 in respect of limitation and has held that the suit is barred by limitation and accordingly, dismissed the suit.

04. Defendants No.16 & 17 filed a counter claim which has also been returned for presentation before the competent Court, however, the defendants have not filed any cross appeal challenging the findings on issues No.5 & 6 and return of their counter claim,

therefore, this Court is not required to examine on these issues.

05. Shri Harish Joshi, learned counsel for the appellant submits that once learned Additional District Judge has held that the Court of Additional District Judge is not having pecuniary jurisdiction to decide the civil suit and the Civil Court, Class - II is a competent Court to decide the suit, then the issue of limitation ought not to have been decided. Either, the plaintiff ought to have been given the opportunity to correct the valuation or return the suit to him for presentation before the competent Court.

06. This Court finds substance in the submission of learned counsel for the appellant. The Additional District Judge has rightly held that the plaintiff has overvalued the suit and has not given any explanation for valuation of the suit to Rs.1,10,255/- when the entire suit property is an agricultural land. The suit was not valued as per the provisions of Section 8 of the Suit Valuation Act, 1887, therefore, findings given on issue No.7 is correct and I do not find any ground to interfere. So far as the finding recorded on the issue of limitation is concerned, the learned Court has wrongly entered into the issue of limitation for dismissing the suit for want of jurisdiction. The Court is restrained to pass any order for dismissal of the suit and it should have been kept open to be decided by the competent Court along with other issue. The suit was filed in the year, 2011 and now we are in the year, 2023, therefore, instead of directing the Civil Court to decide the issue of limitation as preliminary issue, let the same be decided along with other issues after recording of evidence on merit in view of the judgments delivered in the cases of Ramesh B. Desai &

Others v/s Bipin Vadilal Mehta & Others reported in (2006) 5 SCC 638 and Kanhaiyalal v/s Smt. Lajwanti Devi & Others reported in 2008 (2) M.P.H.T. 56 (CG).

07. In view of the above, the impugned order dated 22.03.2014 is hereby set aside. Let the suit be returned to the plaintiff for presentation before the competent Court.

08. First Appeal stands allowed to the extent indicated above.

Record of the lower Court be sent back.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.09.06 17:15:18 +05'30'