Madhya Pradesh High Court
Smt. Karuna Gehlot vs Manikchand Choubey(Dead) Through Lrs ... on 7 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 7 th OF MAY, 2024
CIVIL REVISION No. 221 of 2024
BETWEEN:-
SMT. KARUNA GEHLOT W/O SHRI HARINARAYAN
GEHLOT, AGED ABOUT 64 YEARS, OCCUPATION:
HOUSEWIFE R/O HOUSE NO. 72, BAGHIRA APARTMENT
, E-5, ARERA COLONY, BHOPAL (MADHYA PRADESH)
.....APPLICANT
(BY MS. JAYALAKSHI IYER- ADVOCATE)
AND
1. MANIKCHAND CHOUBEY(DEAD) THROUGH LRS
SURESHCHANDRA TRIPATHI S/O SHRI
SHALIGRAM TRIPATHI, AGED ABOUT 77 YEARS,
R/O H NO. 184, GAYATRI VIHAR, BAGHMUGALIYA,
BHOPAL, TEHSIL HUZUR, DISTRICT BHOPAL
(MADHYA PRADESH)
2. RAMDAYAL (DEAD) THROUGH LEGAL
REPRESENTATIVES NARESH KUMAR S/O LATE
SHRI RAMDAYAL, AGED ABOUT 55 YEARS, NOT
MENTION (MADHYA PRADESH)
3. DINESH KUMAR S/O LATE SHRI RAMDAYAL NOT
MENTION (MADHYA PRADESH)
4. SURESH KUMAR (DEAD) THROUGH LRS SMT.
RANI BAI W/O LATE SURESH KUMAR NOT
MENTION (MADHYA PRADESH)
5. SACHIN KUMAR S/O LATE SURESH KUMAR NOT
MENTION (MADHYA PRADESH)
6. THROUGH DISTRICT EXCISE OFFICER STATE OF
MADHYA PRADESH DISTRICT RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
2
(BY SHRI PANKAJ WAGHMODE - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
On the request of learned counsel for the parties, case is heard finally.
2. This revision has been preferred against the impugned order dated
06.01.2024 passed in civil execution proceeding No. 01A/2017 old case No.
01A/96-2015 whereby application filed under Section 47 read with Section 151
of CPC filed by the respondent/decree holder has been allowed and the order
for issuing possession warrant with respect to disputed land Rakba 5.93 acre
has been given.
3. Respondent/decree holder has filed IA No. 3/2022 under Section 47 read
with Section 151 of CPC on the ground the decree dated 27.09.1996 which has
become final passed in Civil Suit No. 7A/1996 is to be executed for 5.93 acre
of land out of 13.93 acre of total land of khasra No. 10/1, rakba 10.15 acre,
khasra No. 12, rakba 2.60 acres, khasra No. 51/1 and 51/2, rakba 1.22 acres
situated at village Pipliya Gajju, Tehsil Goharganj, District Raisen.
4. Objector/applicant Karuna Gehlot filed a reply objecting that khasra No.
51/1 and 51/2 which are mentioned in the decree are different from land khasra
53/3 and 52/2. She also took objection that Suresh Chandra Tripathi who wants
execution of decree is not legal heir of original decree holder late Shri
Manikchand Choubey. The will is forged. She was not party in RCS No.
7A/1996 and therefore, decree is not binding on her. The execution
proceeding is not in accordance with law. Therefore, prayed for dismissing the
IA No. 3/2022 filed by the respondents.
5. After framing point for determination and recording evidence of
respondent Sureshchand Tripathi (AW/1) and attesting witness Sunil Kumar
Tripathi (AW/2) of the will dated 04.08.2014 (Ex. P/6) and also after giving
opportunity of hearing to the parties, impugned order was passed, IA No.
3/2022 was allowed and it was further ordered that on payment of process fee
warrant of possession of the land rakba 5.93 with new khasra number be
issued.
6. Learned counsel for the applicant submits that the will allegedly executed
by late Shri Manikchand Choubey has not been proved in accordance with law,
therefore, respondents cannot execute the decree. For bolstering her
submission learned counsel for the applicant placed reliance the para 20 of the
judgment in the case of Smt Geeta Dubey and others Vs. Manaklal,
2013(3) MPLJ 123 and para 37 of the judgment in the case of Jagdish
Chand Sharma Vs. Narain Singh Saini, AIR 2015 SC 2149.
7. Per contra, learned counsel for the respondents submtis that decree
passed in RCS No. 7A/1996 on 27.09.1997 has become final as Regular Civil
Appeal No. 17-A/99 preferred against the above judgment was dismissed on the
ponint of limitation on 16.01.2004 and no further challenge has been made to
the order passed in above Regular Civil Appeal. Therefore, the exeuction
proceeding has been started and on application of the respondents, impugned
order has been passed which is in accordance with law. This revision being
devoid of merit, deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record
9. Execution proceedings were started on application by the decree holder
Shri Manikchand Choubey filed under order 21 Rule 11 of CPC (Annexure
A/8). On this application, preliminary objection was raised by the
applicant/Karuna Gehlot by filing written preliminary objection mainly on the
ground that will dated 04.08.2014 (Ex. P/6) allegedly executed by late Shri
Manikchand Choubey is forged and has not been proved in accordance with
law. Therefore, execution proceedings which are also time barred are liable to
be dismissed but even after objection execution proceedings were not dropped
and in the course of the execution proceedings, the impugned order has been
passed.
10. From perusal of para 5 of the impugned order, it is apparent that to
prove the will Ex. P/6, the evidence was led by the respondent Sureshchandra
Tripath (AW/1) and one attesting witness Sunil Tripathi (AW/2) was also
examined and on the appreciation of evidence, the finding has been given by the
Executing Court that that execution of will is proved and on the basis of will
Sureshchand Tripathi is legal heir of late Shri Manikchand Choubey. Therefore,
contention raised by the applicant relying the judgment in Smt Geeta Dubey
(supra) and Jagdish Chand Sharma (supra) have no substance. In view of
the provisions lis pendens as enshrined in Section 52 of the Transfer of
Property Act, 1882, the applicant who purchased the property under lis has to
face the consequences. It is settled legal position that the revisional court has
limited jurisdiction to see the legality of the order assailed therein. In considered
opinion of this court, no illegality can be pointed out by the applicant in the
impugned order. Thus, in view of the above, this Court find no reason to
interfere in the impugned order invoking the revisional jurisdiction.
11. Accordingly, this revision being devoid of merits and is hereby
dismissed.
(BINOD KUMAR DWIVEDI)
JUDGE
L.R. by LALIT
