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2018 Supreme(MP) 894
HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Jagdish Chandra Gupta v. Madanlal and others
First Appeal No. 407 of 1999 (Indore): against the judgment and decree date 15.12.1999 passed by First Additional District Judge, Mandsaur; Decided on 26.11.2018.
A. K. Sethi with Nitin Phadke and Harish Joshi for appellant;
Sunil Jain with Kushagra Jain, Ms. Parika Singh and Ms. Parul Verma for respondents No. 1 to 3.
Headnote:(1) Civil P.C., 1908 -- O. 41 R. 22 -- cross-objection -- when required -- finding recorded in favour of plaintiff in respect of Will -- appeal filed by plaintiff on other grounds -- without filing any cross-objection in respect of Will -- respondents/defendants cannot be permitted to challenge the finding in respect of Will. AIR 1999 SC 3571, AIR 2000 MP 83, AIR 1982 SC 98, (2003) 9 SCC 606, (2018) 11 SCC 382 and Civil Appeal No. 9956 of 2018; decided on 25.9.2018 (SC) discussed. [Paras 20 to 26
(2) Civil P.C., 1908 -- O. 23 R. 3A and O. 41 R. 1A (2) -- applicability -- are applicable only to those persons who are party in suit as well as compromise -- suit decreed as compromise -- plaintiff not party in compromise -- he can institute suit for declaration that decree passed in prior civil suit is void and not binding upon him -- finding of trial Court on this issue that compromise decree is binding upon plaintiff -- set aside. AIR 1993 SC 1139, AIR 2009 MP 232, (2009)6 SCC 194 and AIR 2011 MP 21 referred to. [Paras 33 & 38
(3) Civil P.C., 1908 -- O. 22 Rr. 3 and 4 -- legal representative and legal heir -- meaning -- legal representative is only for purpose of contesting suit, not as owner of property -- finding that legal representative was representing the interest of plaintiff also and was competent to enter into compromise -- wrongly recorded -- quashed. AIR 2008 SC 2866 referred to. [Para 38
(4) Land Revenue Code, 1959 (M.P.) -- S. 189 -- remedy -- availability -- civil suit for declaration of title, possession and permanent injunction -- relief also sought that decree passed in earlier civil suit is void and not binding on him -- such relief can only be granted by civil Court and not by Revenue Court -- civil suit is maintainable. [Para 39
(5) Land Revenue Code, 1959 (M.P.) -- Ss. 257(x), 57 (2), 189 and 250 -- civil suit for declaration of title, possession and permanent injunction -- relief to this effect also sought that decree passed in earlier suit is void and not binding on him -- relief sought is in declaratory nature -- only civil Court is competent for granting the same -- Court below wrongly held that plaintiff can approach revenue Court under section 189 for obtaining possession -- decree of Court below set aside to the extent of issue No. 3, 8 and 9 -- appeal partly allowed. 1976 RN 146 = 1976 JLJ 278 (FB) and 2007 RN 22 (HC) relied on. (2005) 10 SCC 124 followed. [Paras 39 & 41
¼1½ flfoy çfØ;k lafgrk] 1908 && vk- 41 fu- 22 && vk{ksi && dc visf{kr && foy ds fo"k; esa oknh ds i{k esa fu"d"kZ vfHkfyf[kr && oknh }kjk vU; vk/kkjksa ij vihy izLrqr dh xbZ && foy esa fo"k; esa dksbZ izR;k{ksi izLrqr fd, fcuk izR;FkhZx.k@izfroknhx.k dks foy ds fo"k; esa fu"d"kZ vk{ksfir djus ugha fn;k tk ldrkA , vkb vkj 1999 ,l lh 3571] , vkb vkj 2000 ,e ih 83] , vkb vkj 1982 ,l lh 98] ¼2003½ 9 ,l lh lh 606] ¼2018½ 11 ,l lh lh 382 rFkk flfoy vihy Ø- 9956 lu~ 2018( fu.khZr fnukad 25-9-2018 ¼,l lh½ foosfprA ¼iSjk 20 ls 26
¼2½ flfoy çfØ;k lafgrk] 1908 && vk- 23 fu- 3d rFkk vk- 41 fu- 1d ¼2½ && ykxw gksuk && dsoy mu O;fä;ksa dks ykxw gksrs gSa tks okn ds lkFk&lkFk le>kSrs esa Hkh i{kdkj gksa && okn le>kSrs ds :i esa fMØh fd;k x;k && oknh le>kSrs esa i{kdkj ugha && og bl ?kks"k.kk ds fy, okn lafLFkr dj ldrk gS fd iwoZrj flfoy okn esa ikfjr fMØh 'kwU; gS vkSj ml ij vkc)dj ugha gS && bl fook|d ij fopkj.k U;k;ky; dk fu"d"kZ fd le>kSrk fMØh oknh ij vkc)dj gS && vikLr fd;k x;kA , vkb vkj 1993 ,l lh 1139] , vkb vkj 2009 ,e ih 232] ¼2009½ 6 ,l lh lh 194 rFkk , vkb vkj 2011 ,e ih 21 fufnZ"VA ¼iSjk 33 rFkk 38
¼3½ flfoy çfØ;k lafgrk] 1908 && vk- 22 fu- 3 rFkk 4 && fof/kd izfrfufËk ,oa fof/kd okfjl && ls vfHkizsr && fof/kd izfrfuf/k dsoy okn yM+us ds iz;kstu ds fy, gS] laifÙk ds Lokeh ds :Ik esa ugha && fu"d"kZ fd fof/kd izfrfufËk oknh ds fgr dk Hkh izfrfuf/kRo dj jgk Fkk vkSj le>kSrk djus ds fy, l{ke Fkk && xyr vfHkfyf[kr fd;k x;k && vfHk[kafMr fd;kA , vkb vkj 2008 ,l lh 2866 fufnZ"VA ¼iSjk 38
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 189 && mipkj && miyC/krk && gd dh ?kks"k.kk] dCtk rFkk LFkk;h O;kns'k ds fy, okn && ;g vuqrks"k Hkh pkgk x;k fd iwoZrj flfoy okn esa ikfjr fMØh 'kwU; gS vkSj ml ij vkc)dj ugha gS && ,slk vuqrks"k dsoy flfoy U;k;ky; }kjk iznku fd;k tk ldrk gS jktLo U;k;ky; }kjk ugha && flfoy okn pykus ;ksX; gSA ¼iSjk 39
¼5½ Hkw&jktLo lafgrk] 1959 ¼e-ç-½ && /kkjk 257 ¼Hk½] 57 ¼2½] 189 arFkk 250 && gd~ dh ?kks"k.kk] dCtk rFkk LFkk;h O;kns'k ds fy, okn && bl vk'k; dk vuqrks"k Hkh pkgk x;k fd iwoZrj okn esa ikfjr fMØh 'kwU; gS ,oa ml ij vkc)dj ugha gS && pkgk x;k vuqrks"k ?kks"k.kkRed izÑfr dk gS && dsoy flfoy U;k;ky; iznku djus ds fy, l{ke gS && fupys U;k;ky; us xyr vfHkfu/kkZfjr fd;k fd oknh dCtk izkIr djus ds fy, /kkjk 189 ds v/khu jktLo U;k;ky; ds le{k tk ldrk gS && fook|d Ø- 3] 8 ,oa 9 dh lhek rd fupys U;k;ky; dh fMØh vikLr dh xbZ && vihy va'kr% LOkhdkj dh xbZA 1976 jk fu 146 ¾ 1976 ts ,y ts 278 ¼iw.kZ U;k;ihB½ rFkk 2007 jk fu 22 ¼mPpre U;k-½ voyafcrA ¼2005½ 10 ,l lh lh 124 vuqlfjrA ¼iSjk 39 ,oa 41
1. The appellant (hereinafter referred as "plaintiff") has filed the present appeal being aggrieved by the judgment and decree dated 15.12.1999 passed by the First Additional District Judge, Mandsaur by which the civil suit has been dismissed.
Facts of the case in short are as under :
2. The plaintiff filed the suit for the reliefs of declaration, permanent injunction, possession and damages for the property bearing Survey No. 790 (Area 0.031 are) (Old No. 1232 of 2002), situated at Mandsaur. The boundaries of the suit property described in the plaint are as under:
"North - remaining land of Survey No. 790.
South - Kailash Marg Bus Stand.
East - Survey No. 791.
West - Road from Bust Stand to Gandhi Square.
Measurement of the land: length from east to west - 50 feet, width from north to south 50 feet.(50x50 square feet)"
(Hereinafter referred as the "suit property")
3. According to pleadings in the plaint, the "suit property" as well as nearby land was initially owned by Late Ramteerath and his ancestors. That "suit property" 50x50 sq.ft. and nearby lands owned by the ancestors of Late Ramteerath namely Hukumchand Onkar, Smt. Judab Bai and Ganga Bai were given on lease to ancestors of defendants No. 6 to 18 namely Girdharilal on 10.9.1901. Late Ramteerath initiated proceedings for resumption of the aforesaid land under section 189 of the Madhya Pradesh Land Revenue Code' 1959 (hereinafter referred as "MPLR Code") before the Sub Divisional Officer, Mandsaur which was registered as Case No. 2/60xA/45. In the said case, the order of resumption dated 20.2.1968 was passed by the Revenue Commissioner in favour of Late Ramteerath in Appeal No. 109/66-67 which had been upheld by the Board of Revenue vide order dated 26.8.1968 in Case No. 91/3/68. In compliance of the aforesaid order, improvement and construction cost was deposited in the revenue Court by Late Ramteerath.
4. In order to protect their possession over the suit land and others lands Mandanlal, Maniklal, Laxmi Narayan and Smt. Badam Bai filed the suit for declaration and permanent injunction against Late Ramteerath and 4 others which was registered as Suit No. 739A/1996. Initially, the temporary injunction was granted in favour of the plaintiffs therein on 21.10.1976 which remained valid upto 14.5.1997. During pendency of the said suit, Late Ramteerath expired and the name of defendant No. 5 Mohd. Shafi was brought on record as his legal representative by virtue of Will dated 4.5.1977 executed by him. According to the plaintiff, defendant No. 5 colluded with defendants No. 1 to 4 and got disposed of the suit by way of compromise. He had no authority or right to enter into the compromise in respect of the suit land which was granted to him by Late Late Ramteerath by way of Will dated 4.5.1977. By judgement dated 14.5.1997, the suit has been decreed in favour of defendants No. 1 to 4 on the basis of compromise which came to the knowledge of plaintiff on 2.6.1997, hence, he filed the present suit on 23.6.1997. According to the plaintiff, by virtue of Will dated 4.5.1977, he had become the owner of the suit property. The defendant No. 5 was only made a legal representative to pursue the suit, who had no right to enter into a compromise against the interest of plaintiff. The suit was disposed of without following the provisions under Order 23 rule 3 (b) of the CPC, hence, the decree 14.5.1997 is liable to be declared void. The plaintiff has also claimed damages @ Rs. 16,500/- per year and also claimed reliefs of possession and permanent injunction.
5. After notice, the defendants No. 1 to 4 filed the written statement by submitting that they are in possession from the period of their ancestors viz Roopchand and defendants No. 6, 7 and Mangilal as Upkrushak i.e. the year 1949. Late Ramteerath did not initiate any proceedings against defendants No. 1 to 4 or their ancestors for resumption of land, hence, the said order is not binding on them. By virtue of Will
