[Cites 3, Cited by 0]
Madhya Pradesh High Court
Asif Ali Alias Shekhu Miyan vs Sayyed Maksood Ali on 6 March, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:7924
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 6 th OF MARCH, 2026
MISC. PETITION No. 1202 of 2026
ASIF ALI ALIAS SHEKHU MIYAN AND OTHERS
Versus
SAYYED MAKSOOD ALI AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for petitioners.
Shri Dileep Awasthi- Govt. Advocate for respondent No. 13/ State.
ORDER
The present miscellaneous petition under Article 227 of the
Constitution of India has been filed by petitioners (Defendants No. 2 and 1 )
challenging the order dated 03-02-2026 passed by Second Civil Judge,
Junior Division, Sironj, District Vidisha, in Regular Civil Suit No.42-A of
2025, whereby the trial court rejected the application filed by petitioners
under Section 151 of CPC.
2. Brief facts giving rise to present petition are that plaintiffs (herein
respondents No.1 to 10) filed a suit for declaration of title, permanent
injunction, and maintenance regarding the disputed property, including
Khasra No. 2460 and others. Plaintiffs' claim is based on ancestral rights,
alleging that the land was originally owned by Mubarak Shah and Ismail
Shah. It was contended that after death of Ismail Shah, the name of his
daughter, Bunyali Bi, was illegally deleted from revenue records by Badshah
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Mian (father of Defendants No.1 and 2) through a fraudulent Hiba-Nama
(Gift Deed) in 1960 by falsely declaring her deceased. The plaintiffs seek to
set aside a sale deed dated 20th September 2020 and a mutation order from
1976, claiming a 1/2 share in the property under personal law. The
petitioners moved an application under Section 151 of the CPC challenging
the maintainability of suit. They pleaded that plaintiffs failed to produce
revenue records to support their ownership or possession, whereas
defendants submitted certified copies showing the land is recorded in the
names of defendants and an educational society, namely, Vivekananda
Samiti. The trial court, vide impugned order, rjected the application. Hence,
this petition.
3. It is contended on behalf of the petitioners/Defendants No. 2 and 1
that the impugned order passed by trial court is manifestly illegal, arbitrary,
and contrary to the provisions of law. Admittedly, plaintiffs are claiming
rights over survey No. 2460, which, as per revenue records, is recorded in the
name of Shri Vivekananda Samiti. It is argued that trial court ought to have
ordered the impleadment of Samiti for a proper adjudication of matter. One
of the main considerations recorded by trial court for dismissing the
application was that a previous application filed under Order 7 Rule 11 of
CPC had been dismissed, and thus the same objection was being raised
again. However, the petitioners submit that a perusal of order dated
17.12.2025 reveals that the objections raised therein were distinct from
objections raised in the instant application. It is further contended that
application, though filed under Section 151 of CPC, was in the nature of an
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application under Order 1 Rule 10 of the CPC. The trial court failed to record
a finding as to whether Shri Vivekananda Samiti was a necessary or proper
party. It is further submitted that even if the Court was of the view that the
stage was improper, it should have kept the objection open for consideration
at the relevant stage rather than dismissing it arbitrarily.
4. Looking at the nature of the case and the order being passed, there is
no necessity to issue notice to the remaining respondents, including the
plaintiffs.
5. Upon hearing the learned counsel for petitioners and perusing the
impugned order and documents on record, it was found that petitioners'
application under Section 151 of CPC asserted that the suit is prima facie
non-maintainable due to lack of supporting land records. The petitioners
contended that Khasra Nos.1180, 1587, 1588, and 1609 are in their names,
while Khasra No.2460 belongs to Vivekananda Samiti, which has not been
impleaded. The trial Court rejected this application, observing that it as a
repetitive attempt to delay proceedings by petitioners, following the
dismissal of prior application under Order 7 Rule 11 of the CPC on 17th
December, 2025, and subsequently imposed a cost of Rs. 500/-. This Court
finds no jurisdictional error or illegality in the impugned order.
6. It is a settled principle of law that the plaintiff is the dominus litis; it
is generally the discretion of the plaintiff to choose whom to implead as a
party to the suit. The question of whether the suit will fail for nonjoinder of a
necessary party is a matter to be adjudicated during the trial.
7. Accordingly, the petition fails and is hereby dismissed. However,
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issues raised by petitioners regarding the non-joinder of necessary parties
and status of revenue records are kept open. The petitioners are at liberty to
raise these objections before the trial Court at the appropriate stage of the
proceedings.
(HIRDESH)
JUDGE
MKB
