Madhya Pradesh High Court
Laxman More (Dead) Through Lrs. Arvind ... vs Smt. Rani on 5 February, 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 5 th OF FEBRUARY, 2024
MISC. PETITION No. 2350 of 2019
BETWEEN:-
a. LAXMAN MORE (DEAD) THROUGH LRS. ARVIND
MORE S/O LATE LAXMAN MORE, AGED ABOUT 41
Y E A R S , R/O ATHWADI BAZAR, RAMPETH,
MUKAM POST VARANGANV, TEHSIL BHUSAWAL,
DISTRICT JALGANV, (MAHARASHTRA)
b. VINOD MORE S/O LATE LAXMAN MORE, AGED
ABOUT 39 YEARS, R/O CHOWDHARI MEDICAL
SURVEY NO. 30/A PLOT NO. 09 OKOLA BYPASS
NEAR BUS STOP MUKAM POST BASLOND TEHSIL
AND DISTRICT (MAHARASHTRA)
c. SMT. SHARMILA W/O SHRI PRITAMCHAND
CHOWDHARI D/O LATE LAXMAN MORE, AGED
ABOUT 46 YEARS, R/O TARODA NAKA, ULLAS
NAGRAM NANDED, MUKAM POST NANDED,
TEHSIL AND DISTRICT NANDED
(MAHARASHTRA)
d. SMT. SHASHIBALA W/O SHRI KURIL D/O LATE
LAXMAN MORE, AGED ABOUT 44 YEARS, R/O OM
NIVAS, SHIVAJI WARD, NEAR NAVNEET PLAZA,
SAMIR MARBLES, BAMNI BALARPUR
(MAHARASHTRA)
.....PETITIONERS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. SMT. RANI W/O SHRI SONU GOHAR, D/O SHRI
ASHOK MORE, AGED ABOUT 25 YEARS, R/O GADI
KHANA MOGHAT ROAD KHANDWA DISTT.
KHDANDWA (MADHYA PRADESH)
2. SMT. KAVITA W/O SHRI ANIL NARWALE D/O
LATE ASHOK MORE R/O OPPOSITE HANUMAN
DAL MILL, IN HOUSE OF BALRAM PAHALWAN,
PADAVA, TAHSIL KHANDWA (MADHYA PRADESH)
Signature Not Verified
Signed by: VAISHALI
TRIPATHI
Signing time: 2/6/2024
5:14:48 PM
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3. RAHUL S/O SHRI ANIL NARWALE, AGED ABOUT
18 YEARS, R/O OPPOSITE HANUMAN DAL MILL,
IN HOUSE OF BALRAM PAHALWAN, PADAVA,
TAHSIL KHANDWA, DISTT. KHANDWA (MADHYA
PRADESH)
4. CHIRAG S/O SHRI ANIL NARWALE AGED ABOUT
15 YEARS, THR. GURADIAN RAHUL (BROTHER)
S/O LATE ANIL NARWALE R/O OPPOSITE
HANUMAN DAL MILL, IN HOUSE OF BALRAM
PAHALWAN, PADAVA, TAHSIL KHANDWA DISTT.
KHANDWA (MADHYA PRADESH)
5. KISI S/O SHRI ANIL NARWALE AGED ABOUT 12
YEARS, THR. GURADIAN RAHUL (BROTHER) S/O
LATE ANIL NARWALE R/O OPPOSITE HANUMAN
DAL MILL, IN HOUSE OF BALRAM PAHALWAN,
PADAVA, TAHSIL KHANDWA DISTT. KHANDWA
(MADHYA PRADESH)
6. SACHIN MORE S/O LATE SHRI ASHOK MORE,
AGED ABOUT 25 YEARS, R/O BEHIND MAIN
HOSPITAL KALLANGANJ, BEHIND AJANTA
THRASHER KHANDWA TAHSIL AND DISTT
KHANDWA (MADHYA PRADESH)
7. KISHORE MORE S/O SHRI BIHARI MORE, AGED
ABOUT 49 YEARS, R/O E-79, 3RD FLOOR, LAVKUSH
AWAS VIHAR, SUKHLIYA INDORE (MADHYA
PRADESH)
8. LAXMI BAI W/O GOVIND PARAKH D/O BIHARI
MORE, AGED ABOUT 38 YEARS, R/O NATHTODA
GALI NO.108, ANIL KIRANE WALI GALI INDORE
(MADHYA PRADESH)
9. JAISHRI W/O BADAL D/O BIHARI, AGED ABOUT 35
YEARS, R/O KULKARNI KA BHATTA, SHEELNATH
CAMP, OPPOSITE CHAR NAI WALI GALI (MADHYA
PRADESH)
10. RAMESH CHITRE S/O SHRI GENDALAL CHITRE,
AGED ABOUT 45 YEARS, R/O DUBEY KA BAGECHA
NEAR VALLABH NAGAR, RAJKUMAR MILL
CHORAHA NEAR BRIDGE IDNORE (MADHYA
PRADESH)
11. AJAY CHITRE S/O SHRI GENDALAL CHITRE,
AGED ABOUT 40 YEARS, R/O DUBEY KA BAGECHA
Signature Not Verified
NEAR VALLABH NAGAR, RAJKUMAR MILL
Signed by: VAISHALI
TRIPATHI
Signing time: 2/6/2024
5:14:48 PM
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CHORAHA NEAR BRIDGE IDNORE (MADHYA
PRADESH)
12. SMT. KRISHNA BAI W/O SHRI MAHESH ANNAT
D/O GENDALAL CHITRE, AGED ABOUT 38 YEARS,
R/O DUBEY KA BAGECHA NEAR VALLABH
NAGAR, RAJKUMAR MILL CHORAHA NEAR
BRIDGE IDNORE (MADHYA PRADESH)
13. SHRI MOHAMMAD JAHUR S/O NOOR
MOHAMMAD, AGED ABOUT 48 YEARS, R/O
MOHALLA KALLANGANJ, KHANDWA TAHSIL
AND DITT KHANDWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SANJAY SARWATE - ADVOCATE FOR RESPONDENT 13)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition has been preferred by the petitioner/plaintiff -
Laxman More (now dead through LRs), challenging the order dated 15.04.2019
passed by 3rd Civil Judge Class-2, Khandwa in RCSA No.68/2018, whereby
respondent 13- Mohammad Jahur's application under Order 1 Rule 10 CPC for
his impleadment in the pending suit, has been allowed.
2. Learned counsel for the plaintiff/petitioners submits that instant suit is
filed by Laxman More for partition, separate possession and permanent
injunction in respect of house property in which respondent 13 - Mohammad
Jahur filed an application under Order 1 Rule 10 of CPC with the contention
that owner of the house namely Ashok More had executed an agreement of sale
dated 10.02.2015 in favour of Mohammad Jahur to which consent was given by
original plaintiff - Laxman More and defendant 3 - Kishor More and defendant 5
- Jaishri More and after death of Ashok More another agreement was executed
by LRs of Ashok More (Smt. Lata Bai and Sachin More) on 06.06.2015 to
which also Laxman More, Kishor More and Jaishri More consented. Learned
counsel placing reliance on a coordinate Bench decision of Delhi High Court in
the case of Rajbala Ghiloria vs. Ashok Kumar Sethi and Another 2021 SCC
OnLine Del 4801 : (2021) 284 DLT 139 submits that on the basis of
agreement of sale the respondent 13 does not have any right to get himself
impleaded in the suit for partition, who has not filed any suit for specific
performance of agreement(s) of sale or for permanent injunction on the basis of
alleged possession. Learned counsel submits that without taking into
consideration aforesaid aspect of the matter, learned trial court has committed
illegality in passing impugned order and in allowing the application. With these
submissions, learned counsel prays for allowing the miscellaneous petition.
3. Learned counsel for respondent 13 - Mohammad Jahur supports the
impugned order and prays for dismissal of miscellaneous petition with the
contentions that aforesaid two agreements dated 10.02.2015 and 06.06.2015
were executed by Ashok More and his LRs Smt. Lata More and Sachin More
and original plaintiff - Laxman More and defendants Kishor and Jayshri
consented to the agreements, on the basis of which respondent 13 is also in
possession of the entire house, therefore, for passing effective decree in the
suit for partition and separate possession, presence of respondent 13 is
necessary because in view of physical possession of the respondent 13 over the
entire suit house, no fruitful/executive decree of partition and separate
possession can be passed in favour of plaintiff/petitioners.
4. Heard learned counsel for the parties and perused the record.
5. As has been admitted by the learned counsel for the respondent 13 no
suit for specific performance and for consequential relief(s) on the basis of said
two unregistered agreements or on the basis of another unregistered agreement
alleged to have been executed on 10.02.2021 by Smt. Rani, Rahul, Rohit,
Krishna and Sachin in favour of respondent 13, has been filed so far. It is well
settled that mere agreement of sale does not confer any title on the person in
whose favour the agreement has been executed and it gives right only for filing
the suit for specific performance and for any other relief for which he is entitled.
6. In the case of Rajbala Ghiloria (supra) it has been held as under:-
"19. Accordingly, given the fact that the Agreement to Sell was entered into by the
Petitioner herein on 21st March, 2018, post the judgment in Suraj Lamp (Supra), wherein
the Supreme Court clearly held that an unregistered Agreement to Sell cannot be the basis of
claiming ownership, the said Agreement to Sell cannot, in law, be a ground or the basis for
the impleadment of the Petitioner in a partition suit.
20. A suit for partition has to be adjudicated between the co-owners of the
property. Since the rights of the Petitioner, if any, are yet to be determined in the suit for
specific performance which is pending before the Trial Court, the petitioner cannot claim a
right to be impleaded, in the suit for partition. Thus, the Trial Court is not at fault, in holding
that the suit for partition would have to be adjudicated only between the co-owners."
7. In view of the aforesaid, as the respondent 13 has not acquired any
right in the suit property on the basis of the said agreements, therefore, in the
present suit filed by plaintiff/petitioners for partition and separate possession,
the respondent 13 cannot be said to be necessary or proper party. However, the
respondent 13 is at liberty to file the suit for specific performance and
consequential relief(s), if any, subject to law of limitation or to avail any other
remedy available under the law.
8. Resultantly, the miscellaneous petition succeeds and is allowed and
impugned order being not sustainable is hereby set aside and the application of
the respondent 13 filed under Order 1 Rule 10 of CPC stands dismissed.
9. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
VPA
