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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
G.S. AHLUWALIA, J.
Karelal and others - Appellant
Vs.
Gyanbai widow of Keshari Singh and others - Respondents
Second Appeal No. 434, 436 of 2002
Decided On : 19-04-2018
Declaration of Title - Joint Hindu Family Property - M.P. Land Revenue Code, Section 178 - The court held that a suit for declaration of title and permanent injunction by a co-sharer against other co-sharers without seeking the further relief of partition is maintainable under Section 34 and 42 of the Specific Relief Act.
Fact of the Case:
The respondents filed a suit for declaration of title and permanent injunction over joint Hindu family property. The trial court decreed the suit, but the appellate court granted a larger share to the respondents. The appellants filed appeals against these decisions.
Finding of the Court:
The court found that the suit for declaration of title and permanent injunction by a co-sharer against other co-sharers without seeking the further relief of partition is maintainable under Section 34 and 42 of the Specific Relief Act.
Issues: The main issue was whether a suit for declaration of title without seeking relief of partition is maintainable.
Ratio Decidendi: The court held that the suit for declaration of title and permanent injunction by a co-sharer against other co-sharers without seeking the further relief of partition is maintainable under Section 34 and 42 of the Specific Relief Act.
Final Decision: The appeals were dismissed, and the judgments and decrees of the lower courts were affirmed.
Key Points: - The court held that a suit for declaration of title and permanent injunction by a co-sharer against other co-sharers without seeking the further relief of partition is maintainable under Section 34 and 42 of the Specific Relief Act. (!) - The judgment affirms that such declaratory suit is maintainable and that consequences or assertion of co-sharer rights can be declared with permanent injunction without necessarily seeking partition. (!) (!) (!) - The decision discusses Section 178 of the M.P. Land Revenue Code, explaining that co-sharers who have obtained a declaration of title may file for partition with revenue authorities, and that partition can be effected by the Tahsildar, but absence of partition relief does not render a declaratory suit non-maintainable. (!) (!) (!)
This common judgment shall dispose of both the Second Appeal Nos. 436/2002 and 434/2002.
2. These appeals have been filed against the judgment and decree dated 01.08.2002 passed by Additional Sessions Judge, Ganj Basoda District Vidisha in Civil Appeal No. 6-A/2002 and Civil Appeal No. 8-A/2002, by which the appeal filed by appellants Karelal and others was dismissed by the Appellate Court, whereas the appeal filed by respondent No. 1 Gyanbai was allowed by the Appellate Court.
3. The necessary facts for the disposal of the present appeals, in short, are that the respondents namely Gyanbai, Rekhabai, Gayatribai and Rajbai filed a suit for declaration of title and permanent injunction on the ground that joint Hindu Family Properly of the plaintiffs and the defendants is situated in village Pawai Tahsil Basoda District Vidisha, which includes Khasra Nos. 46, 70, 100, 101, 123, 152, 213, 215, 242, 256, 257, 258, 277, 278, 279, 286, 306, 333, 335, 336, 338, 339, 340, 342, 349, 343, 457, ad-measuring area 22.616 hectares, in which the defendant No. 1 Narayan Singh and defendant No. 2 Karelal have equal share. It was further pleaded that on 18.06.1997, the plaintiffs obtained the copy of revenue records from the Patwari, according to which Khasra No. 46 area 1.118 hectare, Khasra No. 70 area 2.749 hectare, Khasra No. 100 area 0.818 hectare, Khasra No. 101 area 0.376 hectare, Khasra No. 123 area 2.174 hectare, Khasra No. 257 area 0.241 hectare, Khasra No. 258 area 0.303 hectare, Khasra No. 286 area 0.251 hectare, Khasra No. 284 area 0.052 hectare and Khasra No. 755/1 area 1.667 hectare, total area 10.749 hectare is recorded in the name of defendant No. 2 Karelal only and this land is the property in dispute. The above-mentioned land shall be referred as “disputed property”. It was further pleaded that Karelal had five sons and the eldest son was Kesari Singh, who expired about 20 years back. The plaintiff No. 1 Gyanbai is the widow of Kesari Singh, whereas the plaintiffs No. 2, 3 and 4 are the daughters of Kesari Singh. It is alleged that the plaintiffs and the defendants No. 2 to 6 have equal share in the disputed property which is recorded in the name of Karelal. It was alleged that the plaintiffs have 1/6th share in the property, whereas the remaining defendants except Narayan Singh have 1/6th share. The property has never been partitioned and still it is in the joint possession of the parties and the plaintiffs as well as defendants No. 2 to 6 are earning livelihood from the said property. The right and title of the plaintiffs was never denied by the defendant No. 2 Karelal but now as their relations have become strained, therefore, except defendant No. 1 – Narayan Singh, all other defendants have started denying the title of the plaintiffs and they are out and out to dispossess the plaintiffs and, therefore, the suit is being filed for declaration of title and permanent injunction. It is submitted that since the entire land was initially recorded in the name of Sardar Singh and after his death, names of Narayan Singh and Karelal were mutated and that's why Narayan has been made a party to the suit, however, the plaintiffs do not seek any relief against the defendant No. 1 Narayan Singh. Accordingly, the suit for declaration and permanent injunction was filed seeking declaration that out of the property in dispute, the plaintiffs as well as defendants No. 2 to 6 have equal share. Further relief was sought that the defendants No. 2 to 6 be restrained from dispossessing the plaintiffs from their share in the property.
4. The appellant/defendant No. 2 filed a written statement and submitted that Karelal had two daughters also, who are also the co-sharers. It was further pleaded that during the life time, the husband of the plaintiff No. 1-Gyanbai namely Kesari Singh about 25 years back had taken a share in the land and had got the land mutated in his name and had also taken away the movable property including the gold and sil
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