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2019 Supreme(MP) 155
HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Sheela and another v. Bhagudibai and another
Second Appeal No. 356 of 2016 (Indore): against judgment and decree dated 18.3.2016 passed by the Additional District Judge Neemuch; Decided on 19.3.2019.
Subject
Partition - Legal Representatives
Act Referred
MADHYA PRADESH LAND REVENUE CODE : S.178, S.250
Headnote
¼2½ Hkw&jktLo lafgrk] 1959 ¼eŒçŒ½ & /kkjk 178 rFkk 250 & vf/kdkfjrk & lg&Lokeh }kjk foHkktu] LFkk;h O;kns'k rFkk dCts ds fy, okn & gd dh ?kks"k.kk ds fo"k; esa dksbZ vuqrks"k ugha pkgk x;k & foHkktu ds vuqrks"k ds fy, okn pykus ;ksX; ugha & /kkjk 178 ds v/khu vf/kdkfjrk rglhynkj esa fufgr gS & og foHkktu dk vkns'k ikfjr djus ds fy, l{ke ÁkfËkdkjh gSaA 1999 jk fu 56 ¼mPp U;k;ky;½] 1990 ¼2½ eŒÁŒ ohDyh uksVl 246] , vkb vkj 2007 ,l lh 2083 rFkk , vkb vkj 1954 ,l lh 575 fufnZ"VA ¼iSjk 2] 6 ,oa 16½
(1) Civil P.C. 1908 -- O. 22 Rr. 3 and 5 -- right of legal representative -- legal representatives brought on record -- on basis of Will -- after death of real sister of defendant No. 1, defendant No. 1 co-owner became exclusive owner -- legal representatives have right only to continue suit -- they are not entitled to claim any relief in suit until and unless Will is proved -- no error committed by Courts below in dismissing suit. AIR 2008 SC 2866 and (2010) 2 SCC 162 followed. [Paras 11 to 15
(2) Land Revenue Code, 1959 (M. P.) -- Ss. 178 and 250 -- jurisdiction -- civil suit by co-owner for partition, permanent injunction and possession -- no relief sought about declaration of title -- suit is not maintainable for relief of partition -- under section 178, jurisdiction vested with Tahsildar -- he is competent authourity to pass order of partition. 1999 RN 56 (HC), 1990 (II) MPWN 246, AIR 2007 SC 2083 and AIR 1954 SC 575 referred to. [Paras 2, 6 & 16
A. S. Garg with Satish Jain for appellants; Mohanlal Patidar for respondent No. 1.
1. Appellants have filed the present appeal being aggrieved by the judgement and decree dated 17.8.2015 passed by 1st Civil Judge, Class-I, Neemuch and judgement dated 18.3.2016 passed by Additional District Judge, Neemuch whereby the suit as well as first appeal both have been dismissed.
2. The appellants are legal heirs of Rami Bai who died during the pendency of the suit. Late Rami Bai and defendant No.1 Bhagudi Bai are real sisters and they jointly owned the land survey No.799 area 0.03 Hectare and land survey No. 800 area 0.78 Hectare, in total 0.81 Hectare situated at village Chaldu, Tehsil Neemuch (hereinafter referred to as "suit land"). Late Rami Bai filed a civil suit against the defendant No. 1 for permanent injunction and partition alleging that she is having ½ share in the suit land and the defendant No. 1 is trying to raise a construction over the part of the land attached to the highway and the remaining portion is leaving for the plaintiff which is having lesser value. It has been alleged that on 5.2.2009, the defendant No. 1 has started construction and because of which the dispute arose. The plaintiff filed a suit on 10.2.2009 seeking relief of permanent injunction that the defendant No. 1 be restrained to raise any construction without partition and she be given ½ share in the suit land by way of partition.
3. The defendant No. 1 filed the written statement by submitting that the partition between them had already been taken 22 years back and she is in possession of her share by constructing a house and residing in it with her family. The plaintiff is also in possession over the part of suit land of her share. The defendant No. 1 had filed an application before the Tehsildar in which order of partition dated 8.7.2009 was passed. The Sub Divisional Officer remanded the case to the Tehsildar for deciding afresh but later-on, the same has been dismissed in default due to non-appearance, but the fact remains that the plaintiff and defendant No. 1 are in possession over the land of their respective shares.
4. During the pendency of the plaint, the plaintiff has expired on 16.2.2012 and the present appellants filed an application under Order 22 rule 3 read with section 151 of the CPC on 19.4.2012 for bringing their name as legal heirs of the plaintiff on the basis of registered will dated 11.3.2011. The said application was opposed by the defendant No. 1 but vide order dated 28.7.2012, the learned trial Court allowed the application and they have been permitted to continue the litigation as legal representatives (Hereinafter they are referred as plaintiffs). By order dated 31.7.2012, the plaintiff No. 1(A) was permitted to act as a guardian of plaintiff No. 2(B).
5. The plaintiff No. 1 examined herself as PW1, Balvindar Singh as PW2, Bhanwarlal Jain as PW3 and Deepak Kumar as PW4. The plaintiffs got exhibited 14 documents as Exhibit P-1 to Exhibit P-14. In defence, the defendant No.1 examined herself.
6. After appreciating the evidence came on record, learned Civil Judge, Class-I has dismissed the suit vide judgment and decree dated 17.8.2015 with a findings that the civil suit is barred under section 250 of MPLR Code and without claiming the relief of declaration, the decree of partition cannot be granted. The plaintiffs have been permitted to continue the suit as legal representatives but their rights and title on the basis of will over the property cannot be decided in this suit.
7. Being aggrieved by the aforesaid judgement and decree, the plaintiffs preferred a first appeal before the District Judge and vide judgement dated 18.3.2015, the District Judge has dismissed the appeal affirming the findings recorded by the learned Civil Judge.
8. Hence, the present appeal before this Court on the ground that both the Courts below have wrongly held that the suit is not maintainable under section 250 of the MPLR Code.
The plaintiff No. 1 is having registered will in her favour, therefore, she succeeded ½ share in
