Madhya Pradesh High Court
Ramendra Singh Kirar vs Jyoti Kirar on 4 October, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2024:MPHC-JBP:50689
1 SA-1221-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 4 th OF OCTOBER, 2024
SECOND APPEAL No. 1221 of 2024
RAMENDRA SINGH KIRAR
Versus
JYOTI KIRAR AND OTHERS
Appearance:
Shri Nitin Kumar Agrawal - Advocate for the appellant.
Shri Ashish Shroti - Advocate for the caveator.
Shri S.S. Senger - Advocate for respondent No.3.
JUDGMENT
This second appeal is filed by the appellant/plaintiff who has lost in
both the Courts under Section 100 of the Code of Civil Procedure Code,
1908, being aggrieved by the judgment and decree dated 08/04/2024 passed
by learned Third District Judge, Gadarwara District Narsinghpur (MP) in
Regular Civil Appeal No.22/2023 (Ramendra Singh vs. Jyoti Kirar and
others) whereby said appeal of the appellant/plaintiff has been dismissed and
affirmed the judgment and decree dated 27/12/2022 passed by learned First
Additional Civil Judge (Junior Division) Tendukheda, District Narsinghpur
in RCSA No.01/2021 (Ramendra Singh Kirar vs. Jyoti Kirar and others)
whereby dismissed the suit of the plaintiff for declaration of title and
permanent injunction for the suit property situated in village Deori, Tehsil
Tendukheda District Narsinghpur as per khasra number and area mentioned
in para-1 of the suit property. The suit was dismissed, therefore, there is a
NEUTRAL CITATION NO. 2024:MPHC-JBP:50689
2 SA-1221-2024
concurrent finding against the plaintiff.
2. Learned counsel for the appellant/plaintiff submitted that both the
Courts fell in grave error in considering the Will (Ex.P/1) as suspicious on
the ground that it was not registered, not notarized and scriber of the Will
was not produced. He further submitted that he has produced two witness to
prove the unregistered Will. Even if the Will is not proved as the propounder
of the Will Devendra died entrusted then appellant was entitled for 1/4 th
share.
3. Learned counsel for the appellant also relied on the judgment of
Hon'ble Apex Court in the case of Mahant Dhangir & another vs. Madan
Mohan and others, AIR 1988 SC 54, wherein in para - 15 has held as under
:-
"15. But that does not mean, that the Math should be left without
remedy against the judgment of learned Single Judge. If the cross-
objection filed under Rule 22 of Order 41 CPC was not
maintainable against the co-respondent, the court could consider it
under Rule 33 of Order 41 CPC. Rule 22 and Rule 33 are not
mutually exclusive. They are closely related with each other. If
objection cannot be urged under Rule 22 against co-respondent,
Rule 33 could take over and come to the rescue of the objector.
The appellate court could exercise the power under Rule 33 even
if the appeal is only against a part of the decree of the lower court.
The appellate court could exercise that power in favour of all or
any of the respondents although such respondent may not have
filed any appeal or objection. The sweep of the power under Rule
33 is wide enough to determine any question not only between the
appellant and respondent, but also between respondent and co-
respondents. The appellate court could pass any decree or order
which ought to have been passed in the circumstances of the case.
The appellate court could also pass such other decree or order as
the case may require. The words "as the case may require" used in
Rule 33 of Order 41 have been put in wide terms to enable the
appellate court to pass any order or decree to meet the ends of
NEUTRAL CITATION NO. 2024:MPHC-JBP:50689
3 SA-1221-2024
justice. What then should be the constraint? We do not find many.
We are not giving any liberal interpretation. The rule itself is
liberal enough. The only constraint that we could see, may be
these: That the parties before the lower court should be there
before the appellate court. The question raised must properly arise
out of the judgment of the lower court. If these two requirements
are there, the appellate court could consider any objection against
any part of the judgment or decree of the lower court. It may be
urged by any party to the appeal. It is true that the power of the
appellate court under Rule 33 is discretionary. But it is a proper
exercise of judicial discretion to determine all questions urged in
order to render complete justice between the parties. The court
should not refuse to exercise that discretion on mere
technicalities."
4. After considering the arguments of learned counsel for the parties and
perused the record of both the Courts, it is seen that question of fact why
unregistered Will (Ex.P/1) was disbelieved by the Court is on record.
Generally Courts prefer registered Will. It is a written document signed by
the party. Document has been written in Tehsil Court, therefore, as easy as
writing an unregistered document at Tehsil, a registered Will (Ex.P/1) could
also has been executed easily.
5. Learned counsel for the appellant submitted that if Will is not proved as
per Section 63 of the Evidence Act then 1/4 th share should have been
awarded but that could not have been done in the present suit as all
necessary parties were not included earlier but subsequently 80 years old
mother and 60 years old sister-in-law were impleaded but relief clause was
not amended and no partition was sought. In fact decree was sought only
against defendants No. 1 & 2.
6. In this situation prima facie view of this Court is that when suit was not
properly framed for partition but was for declaration of title and injunction,
NEUTRAL CITATION NO. 2024:MPHC-JBP:50689
4 SA-1221-2024
then this would not create any res judicata against the plaintiff for partition.
No relief can be granted in the Second Appeal in the facts and circumstances
of the case as all factual situation along with law has been considered by the
trial Court and in the facts and circumstances of the case, no occasion arises
to take aid of provision under Order 41 Rule 33 of CPC and, therefore, the
case of Mahant Dhangir (supra) is of no help to the appellant.
7. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact is well defined by catena of decisions of Supreme Court.
This Court in exercise of powers under Section 100 of the Code of Civil
Procedure can interfere with the finding of fact only if the same is shown to
be perverse or based on no evidence. See. Narayanan Rajendran and another
Vs. Lekshmy Sarojni and others (2009) 5 SCC 264, Hafazat Hussain Vs.
Abdul Majeed and others (2011) 7 SCC 189, Union of India Vs. Ibrahim
Uddin and another, (2012) 8 SCC 148, D.R. Rathna Murthy Vs. Ramappa
(2011) 1 SCC 158, Vishwanath Agrawal Vs. Sarla Vishnath Agrawal, (2012)
7 SCC 288 and Vanchala Bai Raghunath Ithape (dead) by LR Vs. Shankar
Rao Babu Rao Bhilare (dead) by LRs. and Others, (2013) 7 SCC 173.
8. For the aforementioned reasons, no substantial question of law arises in
the facts and circumstances of the case as mentioned above specifically in
terms of parties and relief sought in this appeal. The appeal fails and is
hereby dismissed having no substantial question of law.
9. Let a copy of this judgment along with the record be sent back to the
concerned Court.
(AVANINDRA KUMAR SINGH)
NEUTRAL CITATION NO. 2024:MPHC-JBP:50689
5 SA-1221-2024
JUDGE
mc
