Madhya Pradesh High Court
Smt. Sushila Bai vs Lokhnath Pandya Deceased Through Lrs. ... on 29 August, 2025
1 FA-512-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
FA No. 512 of 2023
(SMT. SUSHILA BAI Vs LOKHNATH PANDYA DECEASED THROUGH LRS. RAJESH PANDYA AND OTHERS
)
Dated : 29-08-2025
Ms. Bhavna Raikwar - Advocate for the appellant.
Shri Brajesh Kumar Pandya, learned counsel for the respondent [R-2].
Heard on I.A.No.7420/2025 an application under Order 5 Rule 20(1)
and 1(a) of CPC seeking permission to serve the respondents by way of
paper publication.
2. Counsel for the appellants submits that despite several attempts of
the appellant to serve notice, the respondent no.1 remain unserved till date.
Respondent no.1 is deliberately avoiding service of notice, therefore, the
appellant be permitted to serve them by way of paper publication.
3. On due consideration, application is allowed. The respondent no.1
be served by way of paper publication in the daily newspaper having wide
circulation in the local area, out of which one should be in English
newspaper and one in Hindi.
4. In addition, appellant is also permitted to serve the respondents
through e-mail. Necessary steps be taken within ten days. Counsel for the
appellant shall file an affidavit after the service along with the copy of the
newspaper.
5. Also Heard on I.A. No.1604/2023 an application under Order
XXXIX Rule 1 & 2, read with Section 151 of CPC.
6. Counsel the appellant has submitted that appellant has filed the first
2 FA-512-2023
appeal under Section 96 of C.P.C. challenging the judgment and decree passed by
VII District Judge, Ujjain in regular Civil suit no. 20-A/2020 (RCS-A no.
46600044/2014) dismissing the suit preferred by the appellant for partition,
possession and mesne profit.
7. The appellant/ plaintiff has adduced the oral and documentary evidence
to prove her title and interest in the suit houses. During the pendency of the suit,
an application under Order XXXIX, Rule 1 & 2 of CPC was filed by the
appellant, which was allowed by the trial Court vide order dated 13.05.2014
thereby restraining the respondents from alienating the suit houses and the interim
relief continued till the passing of the final order on 07.10.2016. Due to dismissal
of the suit upon adverse finding recorded by the trial court, the respondents have
started to create the third party interest in the suit properties.
8. Counsel contended that the partition has not been done in the suit
property. The respondents have not submitted any documentary evidence with
regard to the partition and only on the basis of oral evidence, the trial Court has
held that partition has been done and rejected the application filed by the
petitioner. The respondent no.3 who is an employee of Nagar Nigam, Ujjain has
intentionally concealed the file of the petitioner in order to create delay. The
prima-facie case is in favour of the appellant and balance of convenience lies in
her favour, if temporary injunction is not granted, the appellant is likely to suffer
irreparable loss. Hence counsel prayed that the present application be allowed
and the respondents be restrained from alienating the suit property.
9. Learned counsel for the respondent vehemently opposed the prayer by
submitting that the learned trial Court has correctly held that the suit property has
already been partitioned. The respondents contested the suit that the suit may not
be maintainable as there has been previous partition. Jagmohan and
3 FA-512-2023
Chandrashekar have filed affidavit in the Nagar Nigam Office, Ujjain that house
no.112 which is under the ownership of Anandilal may be transferred in favour of
Loknath. It is further submitted that the oral and documentary evidence produced
respondents prima facie proves that partition has been done between them. It is
well settled that when the partition is admitted or proved, the presumption is that
all the joint properties were partitioned. Counsel relied upon the judgment of
Andhra Pradesh High Court in case of Duvvalu Haiah and Ors. vs. Duvvala
Ramaiah and Ors. reported as (1997) 6 ALT 95 ; and the judgment of Rajasthan
High Court in the case of Gamhbir Singh and Ors. vs. Narayan Singh and Ors.
reported as (1992) CivCC 62 in support of his contentions. The prima-facie case
and balance of inconvenience is in favour of the respondents and they would
suffer irreparable injury if they are not allowed to alienate the suit property.
Therefore he prayed for dismissal of the application.
10. I have heard learned counsel for the parties and perused the record.
11. It is ordered that till the final resolution of the related civil case,
both the parties will not sell or transfer in any manner the disputed property
House NO.62, Shripal Gali, Ujjain and House No.1012, New No.112,
Jaisinghpura, Road, Near Harsiddhi Temple, Ujjain.
12.Accordingly I.A.No.1604/2023 stands allowed and disposed off.
(ALOK AWASTHI)
JUDGE
sumathi
