Madhya Pradesh High Court
Ram Bharose vs Smt. Godavari Dead Th:Lrs Ramprasad on 1 April, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 1 st OF APRIL, 2024
MISC. APPEAL No. 448 of 2013
BETWEEN:-
1. RAM BHAROSE S/O SHRI RAM, AGED ABOUT 36
Y E A R S , KAILAS TAHSIL AND DISTRICT
HOSHANGABAD (M.P)
2. ANOOP SINGH S/O SHRI RAM, AGED ABOUT 34
YEAR S , GRAM KAILAS TAHSIL & DISTRICT
HOSHANGABAD, (MADHYA PRADESH)
.....APPELLANTS
(BY MS. TULIKA GULATEE - ADVOCATE)
AND
1. SMT. GODAVARI DEAD THROUGH LRS;-
1A. RAMPRASAD S/O UMRAO, AGED ABOUT 45
Y E A R S , GWADI TEH. SEONI MALWA
HOSHANGABAD (MADHYA PRADESH)
1B. KAMAL SINGH S/O NANDLAL, AGED ABOUT 30
Y E A R S , GWADI, TEHSIL SEONI MALWA,
DISTT.HOSHANGABAD (MADHYA PRADESH)
2. SMT. KASHI BAI D/O SITARAM, AGED ABOUT 54
Y E A R S , RAJAUN, TEHSIL AWAI, DISTT.
HOSHANGABAD, M.P. (MADHYA PRADESH)
3. SMT. SUNDARBAI (DIED THROUGH HER LRS)
GENDELAL S/O MOOL CHAND, AGED ABOUT 60
3A. YEARS, R/O VILLAGE KAJLI TAHSIL SEONI
MALWA DISTRCIT HOSHANGABAD (MADHYA
PRADESH)
MISHRILAL, S/O MOOL CHAND (DEAD THORUGH
3B. LRS)
PHOOLA AGED ABOUT 55 YEARS, WIFE OF
3B(i) MISHRILAL
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 4/2/2024
7:58:29 PM
2
ANOOP, AGED ABOUT 30 YEARS, SON OF
3B(ii) MISHRILAL
CHHOTU, AGED ABOUT 25 YEARS, SON OF
3B(iii) MISHRILAL
MEVALAL, AGED ABOUT 50 YEARS, SON OF
3C. MOOLCHAND
[ALL R/O VILLAGE KAJLI TAHSIL SEONI MALWA
DISTRICT HOSHANGABAD MADHYA PRADESH]
4. SMT. BHAGGOBAI D/O SITARAM, AGED ABOUT 38
YEARS, TEHSIL & DISTT. HOSHANGABAD (M.P)
5. SMT. RAMPIBAI (DEAD THROUGH LRS)
5A. AMAR SINGH, S/O NANHULAL AGED ABOUT 55
YEARS.
5B. KAMAL, S/O NANJULAR, AGED ABOUT 35 YEARS.
BAHADURSINGH, S/O NANULAR, AGED ABOUT 35
5C. YEARS.
[ALL R/O VILLAGE KALJI, TAHSIL SEONI MALWA
DISTRICT NARMADAPURAM M.P]
PREMBAI, W/O HARISINGH, AGED ABOUT 45
YEARS, R/O VILLAGE SATRANA, TAHSIL
5D. NASRULLAGANJ, DISTRCIT SEHORE (M.P)
RAMWATIBAI, W/O PRAKASH, AGED ABOUT 40
YEARS, R/O TALNAGARI TAPPAR, TAHSIL
DOLARIYA DISTRICT NARMADAPURAM (M.P)
5E.
6. SMT. CHUTIYA BAI (DEAD THROUGH LRS)
MAHESH, AGED ABOUT 45 YEARS.
6A. SANTOSH, AGED ABOUT 30 YEARS.
6B. [BOTH RESIDENT OF KHOKSAR TAHSIL
DOLARIYA DISTRICT HOSHANGABAD]
7. STATE OF MADHYA PRADESH THROUGH
COLLECTOR / DISTRICT MAGISTRATE THE
STATE OF MADHYA PRADESH DISTT.
HOSHANGABAD (M.P)
8. GANGARAM (DEAD THROUGH LRS)
8A. KUNWAR SINGH, AGED ABOUT 50 YEARS.
BHANWAR SINGH, AGED ABOUT 35 YEARS.
8B. [BOTH R/O VILLAGE KHOKSAR TAHSIL
DOLARIYA DISTRICT HOSHANGABAD]
9. HAZARILAL S/O PHOOLCHAND, AGED ABOUT 60
YE A R S , GRAM KAJLAS TAHSIL & DISTT.
HOSHANGABAD, M.P. (MADHYA PRADESH)
Signature Not Verified
Signed by: SATTYENDAR
NAGDEVE
Signing time: 4/2/2024
7:58:29 PM
3
.....RESPONDENTS
(MS. SUDIPTA CHOUBEY - ADVOCATE FOR RESPONDENT 5(a) - AMAR
SINGH AND SHRI PRADEEP DWIVEDI - PANEL LAWYER FOR
RESPONDENT 7/STATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This misc. appeal has been preferred by the appellants/defendant 1-2
challenging judgment of remand dated 29.10.2012 passed by 2nd Additional
District Judge, Hoshangabad, in Regular Civil Appeal No.17-A/2012 reversing
the judgment and decree dated 23.12.2011 passed by 1st Civil Judge Class-I,
Hoshangabad, in Civil Suit No.41-A/2002 whereby trial Court dismissed the
suit and in appeal filed by defendants 1-2, the matter has been remanded to trial
Court for decision of civil suit afresh, after permitting the plaintiffs to amend the
plaint and to implead necessary parties to the suit.
2. Learned counsel for the appellants submits that in the suit filed by
plaintiffs/respondents 1-6, despite taking objection in the written statement filed
by defendant 1 - Ram Bharos, the plaintiffs did not implead necessary parties to
the suit i.e. all the legal heirs of Sitaram, who was bhumiswami of the land in
question and the applications under Order 1 Rule 10 CPC as well as under
Order 6 Rule 17 CPC filed by the plaintiffs at the fag end of trial, were rightly
dismissed by trial Court and consequently rightly dismissed the suit on the
ground of non-joinder of necessary parties and on other grounds including the
ground of limitation.
3. Learned counsel also submits that without there being any objection in
the memo of appeal, in respect of challenge to the order dismissing the
applications under Order 1 Rule 10 CPC and under Order 6 Rule 17 CPC, first
appellate Court has committed illegality in setting aside the interim order dated
08.12.2011 passed by trial Court and erred in allowing both the applications,
with the further direction to trial Court for decision of the civil suit afresh.
Learned counsel further submits that for the purpose of removing lacuna, matter
cannot be remanded. With these submissions learned counsel prays for
allowing the misc. appeal.
4. Learned counsel appearing for the respondent 5(a) - Amar Singh
supports the impugned judgment of remand and prays for dismissing the misc.
appeal, with the further contention that first appellate Court has not committed
any illegality in passing the judgment of remand after allowing the applications
under Order 1 Rule 10 CPC and under Order 6 Rule 17 CPC filed before trial
Court.
5. Heard learned counsel for the parties and perused the record.
6. Undisputedly the suit property belonged to Gyaras and after his death
it was devolved upon his son Sitaram and the plaintiffs are daughters of
Sitaram, whereas the defendants 1-2 are claiming right over the property
through another daughter of Sitaram namely Meera Bai and the defendants 4-5
are claiming right on the property through other daughter of Sitaram namely
Lachhiya Bai and as such Sitaram was survived by eight daughters.
7. The plaintiffs/respondents 1-6 instituted a suit for declaration of title,
restoration of possession, permanent injunction and mesne profits against the
appellants/defendants 1-2 impleading the defendants 4-5 Gangaram and
Hazarilal. Undisputedly husband of Lachhiya Bai namely Phoolchand has
already died and similarly the husband of Meera Bai namely, Parasram has also
died, but Meera Bai/Parasram was survived by one son Shriram, who was not
made party to the suit and in presence of Shriram, his sons the defendants 1-2
Rambharos and Arun Singh cannot claim any right over the property.
8. Although despite raising objection by defendants 1-2 in the written
statement, the plaintiffs did not implead Shriram as party to the suit, but before
passing judgment and decree by trial Court on 23.12.2011, applications under
Order 1 Rule 10 CPC and Order 6 Rule 17 CPC were filed for impleadment of
Shriram as party to the suit, which were dismissed by trial Court vide order
dated 08.12.2011 and thereafter trial Court decided issue no.7 in affirmative
holding the suit to be bad for want of joinder of necessary party.
9. Although trial Court has dismissed the suit on other grounds also but it
has not decided question of title/ownership in favour of any of the parties to the
suit. Upon filing appeal by plaintiffs, first appellate Court taking into
consideration over all facts and circumstances of the case, has found Shriram
to be necessary party to the suit and while passing judgment of remand, has set
aside the interim order dated 08.12.2011 passed by trial Court and allowed both
the applications under Order 1 Rule 10 CPC dated 02.11.2011 and under Order
6 Rule 17 CPC dated 04.11.2011, with the further direction to trial Court to
permit the plaintiffs to implead Shriram as party to suit and to permit the
plaintiffs to incorporate the proposed amendment in the plaint.
10. From perusal of memo of appeal filed before first appellate Court, it
is clear that the plaintiffs have not taken specific ground regarding challenge to
the interim order dated 08.12.2011, but that itself cannot be a ground to set
aside the judgment of remand because Shriram is necessary party for deciding
the real controversy in the matter. As Shriram has been held to be necessary
party to the suit and the trial Court did not decide the question of title in favour
of any of the parties to the suit, therefore, in my considered opinion, first
appellate Court has not committed any illegality in passing the judgment of
remand.
11. Resultantly declining interference in the judgement of remand, misc.
appeal fails and is hereby dismissed.
12. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
