Madhya Pradesh High Court

Satpal Jaat vs Smt Savitri Bai D/O Mukundilal on 9 February, 2024

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF FEBRUARY, 2024
MISC. PETITION No. 689 of 2024

BETWEEN:-
1. SATPAL JAAT S/O GHANSHYAM JAAT, AGED
ABOUT 38 YEARS, OCCUPATION: AGRI VILLAGE
PAHELA TEH KARHAL DISTRICT SHEOPUR
(MADHYA PRADESH)

2. GANESH (MINOR) THROUGH GUARDIAN FATHER
SATPAL JAAT S/O SATPAL JAAT, AGED ABOUT 14
YEARS, R/O VILLAGE PAHELA, TEHSIL KARHAL,
SHEOPUR (MADHYA PRADESH)

.....PETITIONER
(BY SHRI ABHISHEK SINGH - ADVOCATE )

AND
1. SMT SAVITRI BAI D/O MUKUNDILAL W/O
RAJARAM SHASTRI, AGED ABOUT 77 YEARS,
KARHAL DISTRICT SHEOPUR PRESENTLY NEAR
PURANI TEH SABALGARH DISTRICT MORENA
(MADHYA PRADESH)

2. SMT SARJU BAI D/O MUKUNDILAL (DEAD)
THROUGH LRS A. HARISH CHANDRA S/O
RAMJILAL, AGED ABOUT 42 YEARS, R/O KARHAL,
SHEOPUR (MADHYA PRADESH)

3. SMT SARJU BAI D/O MUKUNDILAL (DEAD)
THROUGH LRS B. KRISHNA KANT S/O RAMJILAL,
AGED ABOUT 38 YEARS, R/O KARHAL, SHEOPUR
(MADHYA PRADESH)

4. SMT SARJU BAI D/O MUKUNDILAL (DEAD)
THROUGH LRS C. SMT BINNI BAI @ PREMLATA
D/O RAMJILAL W/O GOPAL, AGED ABOUT 52
YEARS, R/O NEAR RAILWAY FATAK TEHSIL AND
DISTRICT SHEOPUR (MADHYA PRADESH)

5. SMT SARJU BAI D/O MUKUNDILAL (DEAD)
Signature Not Verified
Signed by: ABDUR RAHMAN
Signing time: 21-Feb-24
2:54:29 PM
2
THROUGH LRS D. SMT RAJESH BAI D/O
RAMJILAL W/O KESHAV, AGED ABOUT 47 YEARS,
NEW DELHI (DELHI)

6. SMT SARJU BAI D/O MUKUNDILAL (DEAD)
THROUGH LRS E. SMT MEENA D/O RAMJILAL,
AGED ABOUT 42 YEARS, R/O SUMAWALI,
MORENA (MADHYA PRADESH)

7. RADHESHYAM S/O MUKUNDILAL (DEAD)
THROUGH LRS A. SMT SHAKANTULA W/O
RADHESHYAM, AGED ABOUT 72 YEARS, R/O
RAJBAGH, SAWAI MADHOPUR (RAJASTHAN)

8. RADHESHYAM S/O MUKUNDILAL (DEAD)
THROUGH LRS B. DHARMENDRA S/O
RADHESHYAM, AGED ABOUT 42 YEARS, R/O
RAJBAGH, SAWAI MADHOPUR (RAJASTHAN)

9. RADHESHYAM S/O MUKUNDILAL (DEAD)
THROUGH LRS C. DEVENDRA @ DEVU S/O
RADHESHYAM, AGED ABOUT 42 YEARS, R/O
RAJBAGH, SAWAI MADHOPUR (RAJASTHAN)

10. RADHESHYAM S/O MUKUNDILAL (DEAD)
THROUGH LRS D. RAJENDRA S/O RADHESHYAM,
AGED ABOUT 38 YEARS, R/O RAJBAGH, SAWAI
MADHOPUR (RAJASTHAN)

11. OMPRAKASH S/O MUKUNDILAL, AGED ABOUT 72
YEARS, R/O INFRONT OF UTKRASTH VIDHYALA
KARHAL, SHEOPUR (MADHYA PRADESH)

12. COLLECTOR THE STATE OF MADHYA PRADESH
SHEOPUR (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI G.K. AGARWAL- GOVT. ADVOCATE )

This petition coming on for admission this day, th e court passed the
following:
ORDER

The present petition under Article 227 of the Constitution of India is directed against the order date 29-01-2024 passed by Principal District Judge, Sheopur in RCA No.54 of 2022, whereby the appeal though stood abated with

regard to defendant No.1 Shankarlal (respondent No.1 therein) has been directed to be proceeded on merits against the present petitioners who had purchased the part of property from defendant No.1.

Learned Counsel for the petitioners has argued that the petitioners had purchased the property from defendant No.1 by way of a registered sale deed and they are in capacity of registered owners in occupation of suit land. The present respondents No.1 and 2 had preferred a suit for declaration and injunction and for declaring the sale deed executed in favour of present petitioners to be null and void. During pendency of the suit itself, defendant No.1 had expired but without bringing representatives of defendant No.1 on record, the judgment and decree was passed on 25-06-2022 and the suit was dismissed.

Aggrieved by the aforesaid judgment and decree, plaintiffs preferred an appeal and during pendency of that appeal, an application under Order 22 Rule 4 of CPC for taking legal representatives of defendant No.1 on record was moved. The said application filed under Order 22 Rule 4 of CPC was rejected by appellate Court vide order dated 14-03-2023 on the ground that since defendant No.1 was already dead at the time of passing of judgment and decree, therefore, the said application was not maintainable. Thereafter, the matter with regard to other respondents were directed to be proceeded with and

vide order dated 29-01-2024, the matter has been posted for final hearing on 10th February, 2024.

Aggrieved by the aforesaid order dated 29-01-2024, present petition has been filed by petitioners alleging that thought on the one hand, the First Appellate Court has observed that since defendant No.1 had expired, therefore, the application under Order 22 Rule 4 of CPC for taking his legal

representatives on record, was not maintainable but instead of abating the appeal so far as defendant No.1 is concerned, had proceeded with the matter. The appellate Court has further ignored the fact that the present petitioners who are respondents No. 3 and 4 in the appeal were claiming their rights in the property, through, defendant No.1 and had purchased only his share out of the joint share as alleged by plaintiffs. Therefore, the First Appellate Court should have even held that the appeal stood abated, so far as the petitioners are also concerned. It was, thus, prayed that the impugned order is per se, illegal and de hors the facts available on record, deserves to be modified with an observation that appeal so far as defendant no.1 and present petitioners and respondents no. 4 and 5 shall stand abated.

Heard learned Counsel for the petitioners and perused the record. Admittedly, defendant No.1 Shankar Singh had expired during currency of suit and during the pendency of suit, his legal representatives were not brought on record and the judgment and decree seems to be passed against the dead person. Against the said judgment and decree, the plaintiffs had preferred a first appeal and during pendency of first appeal, an application under Order 22 Rule 4 of CPC was moved. The said application was rejected by learned First Appellate Court vide order dated 14-03-2023 on the ground that since defendant No.1 had died during pendency of suit itself and the appeal has been preferred against the dead person, therefore, the application for bringing the legal representatives on record was not maintainable. The said order was not challenged by the respondent no. 1 and 2/plaintiffs and so far as respondent no. 1/defendant No.1 is concerned, the appeal had stood abated.

The petitioners have tried to canvass before this Court that since they

have purchased the property from respondent no. 1/defendant No.1 and the appeal against the defendant No.1 had already stood abated, therefore, respondents no. 1 and 2/plaintiffs cannot maintain the first appeal even against the present petitioners/respondents no. 3 and 4 and against them also, the appeal should be declared as abated. The aforesaid argument does not appeal to reason as in the present suit declaration with regard to the sale deed executed in favour of the petitioners by respondent no. 1 /defendant has been sought alleging that defenant no. 1 had sold the excess land than of his shares which is a matter of evidence. Even from bare perusal of reliefs made in the suit it could be seen that equal share has been sought by respondent no. 1 and 2- plaintiffs along with defendants nos. 1, 2 and 3 and what is the actual share is yet to be finalized. Therefore, the present petitioners as a matter of right could not claim that the appeal has also abated agaisnt them. This aspect of abatement of the appeal against respondent no. 1/defendant shall be considered by the appellate authority while deciding the appeal and this fact shall also be considered whether the area which has been sold to the petitioner was in excess to the share of respondent no. 1/defendant being found proved. Since this aspect are yet to be determined by the First Appellate Authority, this Court does not find any reason to interfere or modify the impugned order.

Accordingly, the petition stands dismissed.

(MILIND RAMESH PHADKE) JUDGE ar