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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Ramnath and Other v. Raghunath Singh and Others
Miscellaneous Petition No. 4329 of 2023 (Gwalior): against the order dated 9.11.2022 passed by the 1st Additional District Judge, Gohad, District Bhind; Decided on 1.9.2023
¼1½ flfoy çfØ;k lafgrk] 1908 & vk- 39 fu- 1 rFkk 2 & çfroknh dk vkosnu dk vfèkdkj & çfroknh }kjk O;kns'k d¢ fy, vkosnu çLrqr fd;k x;k & pyus ;¨X; g¨uk & çfroknh micaèk¨a dh vkKkuqlkj lhfer ç;¨tu d¢ fy, vkosnu dj ldrk gS & çfroknh }kjk fu;e 1¼d½ d¢ vèkhu vLFkk;h O;kns'k d¢ fy, fd;k x;k vkosnu ml lhek rd pyus ;¨X; gSA 1997 e- ç- ohDyh u¨V~l 34] 2016 ¼3½ ,e ih ,y ts 604] 1991 ,e ih ,y ts 111 rFkk , vkb vkj 1939 eækl 495 fufnZ"VA ¼iSjk 17½
¼2½ flfoy çfØ;k lafgrk] 1908 & vk- 43 fu- 1 & vkns'k 43 fu;e 1 d¢ vèkhu çdh.kZ vihy esa ikfjr çfrçs"k.k vkns'k d¢ fo#) mPp U;k;ky; d¢ le{k çdh.kZ vihy & pyus ;¨X; g¨uk & ;|fi çfrçs"k.k vkns'k d¢ fo#) vihy fofèk d¢ lkjoku~ ç'u ij gh çLrqr dh tk ldrh gS] ijarq ckn esa çdh.kZ vihy lafoèkku d¢ vuqPNsn 227 d¢ vèkhu çdh.kZ ;kfpdk esa ifjofrZr dh xà & vc vihy pyus ;¨X; g¨us d¢ ç'u “ks’k ugÈ jgrkA ¼2004½ 4 ,l lh lh 26 fufnZ"VA ¼iSjk 19½
¼3½ çFkk & lfoy çfØ;k lafgrk d¢ vkns'k 43 fu;e 1 d¢ vèkhu çdh.kZ vihy esa çfrçs"k.k vkns'k ikfjr & ,sls vkns'k d¢ fo#) mPp U;k;ky; d¢ le{k çdh.kZ vihy çLrqr dh xà & vihy pyus ;¨X; g¨us d¢ fo"k; esa vkifÙk & çdh.kZ vihy dks Òkjr d¢ lafoèkku d¢ vuqPNsn 227 d¢ vèkhu çdh.kZ ;kfpdk esa ifjofrZr fd;k tk ldrk gS & vkosnu fd, tkus ij og çdh.kZ ;kfpdk esa ifjofrZr dh xÃA ¼iSjk 19½
¼4½ flfoy çfØ;k lafgrk] 1908 & vk- 43 fu- 1] vk- 41 rFkk èkkjk 108 & vkns'k 43 fu;e 1 d¢ vèkhu vihy U;k;ky; dh 'kfä & vkns'k 41 ykxw g¨uk & vihy U;k;ky; }kjk çfrçs"k.k dk vkns'k ikfjr fd;k tk ldrk gS & vkns'k 41 ds mica/k çfrçs"k.k vkns'k ikfjr fd, tkus dh lhek rd vkns'k 43 dks ykxw g¨axsA ¼iSjk 20½
¼5½ Òkjr dk lafoèkku & vuqPNsn 227 & 'kfä dh O;kfIr & vèkh{k.k 'kfä d¢ vèkhu rFkk U;k;fgr vxzlj djus d¢ fy, U;k;ky; vkns'k ikfjr dj ldrk gS fd vLFkk;h O;kns'k d¢ n¨u¨a vkosnu¨a dh lquokà ,d lkFk dh tk ldrh gS & ;fn ,slk vkns'k vfÒdfFkr rduhdh vkèkkj ij vikLr fd;k tkrk gS rks ;g voSèk vkns'k d¨ iqu% LFkkfir djuk g¨xkA ¼1993½ 4 ,l lh lh 727] 2015 jkfu 484 ¼mPp U;k-½] 2015 ¼3½ ,e ih ,y ts 202 rFkk 2006 ¼3½ ,e ih ,p Vh 39 fufnZ"VA ¼iSjk 21½
¼6½ flfoy çfØ;k lafgrk] 1908 & vk- 39 fu- 1 rFkk 2 & vLFkk;h O;kns'k d¢ fy, oknh rFkk çfroknh }kjk vkosnu & ,d dk fofu'p;u igys fd;k x;k rFkk nwljs dk fofu'p;u ckn esa fd;k x;k & n¨u¨a vkosnu¨a dh lquokà rFkk fofu'p;u ,d lkFk fd;k tkuk pkfg,A ¼iSjk 22½
(1) Civil P. C., 1908 -- O. 39 Rr. 1 and 2 -- defendant’s right of application -- application filed by defendant for injunction -- maintainability -- defendant can apply for limited purpose as provisions mandate -- application by defendant for temporary injunction under rule 1(a) maintainable to that extent. 1997 MPWN 34, 2016 (3) MPLJ 604, 1991 MPLJ 111 and AIR 1939 Mad. 495 referred to. [Para 17
(2) Civil P. C., 1908 -- O. 43 R.1 -- appeal before High Court against remand order passed in miscellaneous appeal under order 43 rule 1 -- maintainability -- although appeal against remand order can only be filed on substantial question of law, but later on miscellaneous appeal converted into miscellaneous petition under Article 227 of Constitution -- question of maintainability of appeal does not exist now. (2004) 4 SCC 26 referred to. [Para 19
(3) Practice -- remand order passed in miscellaneous appeal under order 43 rule 1 of CPC -- miscellaneous appeal filed before High Court against such order -- objection about maintainability of appeal -- appeal can be converted into miscellaneous petition under Article 227 of Constitution -- same converted into miscellaneous petition on application. [Para 19
(4) Civil P. C., 1908 -- O. 43 R.1, O. 41 and S. 108 -- powers of appellate Court under order 43 rule 1 -- applicability of order 41 -- order of remand can be passed by appellate Court -- provisions of order 41 would apply to order 43 also to extent where remand order is made. [Para 20
(5) Constitution of India -- Art. 227 -- scope of powers -- under power of superintendence and to further cause of justice, Court can pass order that both applications for temporary injunction can be heard analogously -- if such order is set aside on alleged technical ground then it would amount to restoration of illegal order. (1993) 4 SCC 727, 2015 RN 484 (HC), 2015 (3) MPLJ 202 and 2006 (3) MPHT 39 referred to. [Para 21
(6) Civil P. C., 1908 -- O. 39 Rr. 1 and 2 -- applications by plaintiff and defendant for temporary injunction -- one decided first and another decided later -- both applications ought to be heard and decided analogously. [Para 22
ORDER
1. The present petition under Article 227 of the Constitution is preferred by the petitioners being crestfallen by the order dated 9.11.2022 passed by the I Additional District Judge Gohad District Bhind whereby Miscellaneous Appeal under Order XLIII Rule 1 (r) of CPC preferred at the instance of respondent No.2(a)/defendant No.2(a) was partly allowed and matter was remanded back to the trial Court for fresh adjudication of application under Order XXXIX Rule 1 and 2 of CPC preferred by the petitioners/plaintiffs (vide I.A.No.1/2022) and another application preferred by defendant No.2(a) under Order XXXIX Rule 1 and 2 of CPC (I.A.No.06/2022) for analogous hearing.
2. Precisely stated facts of the case are that the plaintiffs/petitioners were co-owners of one piece of the land and went for partition before Tahsildar. Vide order dated 22.9.2009 land was partitioned by Tahsildar. On 5.5.2011 SDO, allowed the appeal of plaintiff/petitioner No.2 -Malti and set aside the order of partition and remanded the matter to Tahsildar for fresh hearing. Grievance of Malti before SDO was that she was not given opportunity of hearing in partition proceedings.
3. On 2.3.2015, Tahsildar recorded consent of plaintiff/petitioner No.2 – Malti over previous partition and passed a fresh order of partition. Said order became final because no appeal was preferred by any party against the order of partition. On 22.11.2021 respondent No.2(a) -Ghanshyam Soni purchased the land from the share of defendant No.2 – Ratan Singh.
4. Petitioners/plaintiffs filed a suit for declaring the order of Tahsildar as null and void in which respondent No.2(a) was impleaded as party defendant and moved an application under Order XXXIX rule 1 and 2 of CPC for restraining the respondents from alienation of property.
5. It appears that on 6.6.2022, petitioners/plaintiffs themselves attempted to erect wire fencing on the property and therefore, FIR at Crime No.165/2022 was registered against them. Immediately thereafter it appears that Ghanshyam Soni -respondent No.2(a) filed an application for restraining the plaintiffs from interfering in possession and from changing the status of the property purportedly under Order XXXIX Rule 1 read with section 151 of CPC.
6. On 27.6.2022, order was passed by the trial Court on the application of plaintiffs restraining alienation of property but order on the application of defendant No.2 (a) was not passed and it was passed on 13.9.2022 whereby the application of defendant No.2(a) was rejected observing that there is already an order of injunction against defendant No.2(a) passed earlier by the trial Court.
7. It appears that after passing of the impugned order dated 27.6.2022 and before passing of order dated 13.9.2022 rejecting the injunction application of defendant No.2(a), he filed an appeal purportedly under Order XLIII Rule 1 of CPC against the order dated 27.6.2022 inter alia raising the ground that the trial Court has not decided his application under Order XXXIX rule 1 and 2 of CPC. On 9.11. 2022 the appellate Court partly allowed the appeal preferred by defendant No.2(a), directing the trial Court to decide both the applications preferred under Order XXXIX rule 1 and 2 of CPC preferred by the parties while hearing analogously. Till then restrained defendant No.2(a) from alienating, selling and transferring the property.
8. Thereafter, against said order dated 9.11.2022 petitioners filed miscellaneous appeal under Order XLIII rule 1 of CPC before this Court and thereafter moved an application for conversion of miscellaneous appeal into miscellaneous petition and said application was allowed and thereafter matter is heard on miscellaneous petition under Article 227 of the Constitution.
9. It is the submission of learned counsel for the petitioners that all the parties in suit were not impleaded as party by defendant No.2(a) in miscellaneous appeal, therefore, same not maintainable. As defendant, he cannot claim any relief for tempora
Partition proceedings cannot be halted when the suit land is shown to be joint between the parties according to the revenue record.
The appellate court must provide cogent reasons for remanding a case, and it should decide based on existing evidence if sufficient, rather than remanding without due justification.
Disposal of other questions.-- (1) Where there is a question as to property to be divided, or the mode of making a partition, Revenue Officer shall, after such inquiry as he deems necessary, record a....
The court affirmed its inherent authority to issue preservation orders under Article 227 and Section 151 of CPC, regardless of injunction criteria not being satisfied, emphasizing the maintenance of ....
An appellate court's remand order under Order XLI Rule 23-A CPC must be justified by clear error in trial court decisions, with findings on possession and title needing consideration before partition....
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