Bagora Developers Pvt. Ltd. Through Director Anandilal Dave vs Harinarayan (Dead) Thr. LRs Champalal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(MP) 894

IN THE HIGH COURT OF MADHYA PRADESH
Pawan Kumar Dwivedi, J.
Bagora Developers Pvt. Ltd. Through Director Anandilal Dave v. Harinarayan (Dead) Thr. LRs Champalal & Others
Miscellaneous Appeal No. 5721 of 2024 (Indore): against the judgment and decree dated 15.3.2024 passed by the 2nd District Judge, Dr. Ambedkar Nagar, District Indore in RCA
No. 9/2019; Decided on 8.10.2025.

Advocates Appeared:
Makbool Ahmad Mansoori for appellant; Nilesh Agrawal for respondent No. 5.

Headnote:
¼1½ flfoy çfØ;k lafgrk] 1908 & vkns'k 41 fuŒ 27 & çFke ckj vihy U;k;ky; d¢ le{k vfrfjä lk{; dk vkosnu & lEiw.kZ fopkj.k d¢ n©jku ,slk d¨Ã vkosnu ugÈ fd;k x;k & ;g oknhx.k dh ukdkeh Fkh & og f}rh; volj d¢ ;¨X; ugÈ & deh iwjh djus d¢ fy, f}rh; volj nsuk fofèk esa vuqKs; ugÈA ¼2012½ 8 ,llhlh 148 vuqlfjrA ¼iSjk 24 ,oa 29½
¼2½ flfoy çfØ;k lafgrk] 1908 & vkŒ 41 fuŒ 23 rFkk 27 & gd dh Ä¨"k.kk] LFkk;h O;kns'k rFkk foØ; foys[k vÑr ,oa 'kwU; Ä¨f"kr fd, tkus d¢ fy, flfoy okn & çfroknh@foØsrk ds fpfdRlh; ijh{k.k d¢ fy, çFke ckj vihy U;k;ky; d¢ le{k vkosnu fd;k x;k & lEiw.kZ fopkj.k d¢ n©jku ,slk d¨Ã vkosnu ugÈ fd;k x;k & vihy U;k;ky; }kjk fopkj.k U;k;ky; dk fu"d"kZ myVs fcuk ekeyk çfrçsf"kr fd;k x;k & vfÒfuèkkZfjr] foØ; foys[k d¢ fu"iknu ls X;kjg o"kZ i'pkr~ vkns'k 41 fu;e 27 d¢ vèkhu vkosnu çLrqr fd;k x;k & foØ; foys[k ds fu"iknu ds fnukad d¨ çfroknh@foØsrk ds LokLF; dh n'kk dk ijh{k.k djuk laÒo ugÈ g¨xk & fopkj.k U;k;ky; dk fu"d"kZ myVs fcuk ekeyk çfrçsf"kr ugÈ fd;k tk ldrk & vihy U;k;ky; dk fu.kZ; ,oa fMØh vikLr & vihy dk xq.kkxq.k ij fofu'p;u fd, tkus d¢ fy, ekeyk vihy U;k;ky; d¨ çfrçsf"krA ¼2020½ 2 ,llhlh 686 vuqlfjrA ¼2008½ 8 ,llhlh 485] ¼2007½ 2 ,llhlh 49] vkb,yvkj ¼2019½ ,eih 1441 rFkk ¼2005½ 3 ,llhlh 422 fufnZ"VA ¼iSjk 25 ls 27 ,oa 29½
(1) Civil P.C. 1908 -- O. 41 R. 27 -- application for additional evidence before appellate Court for first time -- no such application was filed during entire trial -- it was failure on part of plaintiffs -- they do not deserve any second chance -- providing second opportunity to fill up lacuna not permissible under law. (2012) 8 SCC 148 followed. [Paras 24 & 29]
(2) Civil P.C. 1908 -- O. 41 Rr. 23 and 27 -- civil suit for declaration of title, permanent injunction and declaration of sale deed as null and void -- application filed for first time before appellate Court for medical examination of defendant/seller -- no such application filed during entire trial -- matter remanded by appellate Court without reversing finding of trial Court -- held, application under Order 41 rule 27 filed after 11 years from execution of sale deed -- it would not be possible to examine medical condition of defendant/seller on date of execution of sale deed -- matter cannot be remanded without reversing finding of trial Court -- judgment and decree of appellate Court set aside -- matter remanded to appellate Court for deciding appeal on merits. (2020) 2 SCC 686 followed. (2008) 8 SCC 485, (2007) 2 CTC 49, ILR (2019) MP 1441 and (2005) 3 SCC 422 referred to. [Paras 25 to 27 & 29]

ORDER

1. This appeal has been preferred by the appellant / defendant No.5 being aggrieved by the judgment and decree dated 15.3.2024 passed by the learned 2nd District Judge, Dr. Ambedkar Nagar, District Indore in RCA. No.9/2019, whereby while setting aside the judgment and decree dated 15.2.2019 passed by the First Civil Judge Class - I, Dr. Ambedkar Nagar, District Indore in Regular Civil Suit No.15-A/2014, the matter was remanded back to the trial Court to decide the same afresh after affording opportunity to lead evidence to both the parties and getting tested Kamlabai from medical board.

2. Short facts of the case are that the respondents No.1 to 5 filed suit for declaration of title and permanent injunction against the present appellant / defendant No.5 as well as respondents No.6 to 11 with respect to agricultural land situated in Patwari Halka No.27, Khasra No.16 of village Shivnagar, Tehsil Mhow, District Indore admeasuring 2.258 hectares.

3. It was averred in the plaint that late Devi Singh had solemnized two marriages during his lifetime. First with Fulibai out of which wedlock there were two children ie., plaintiff No.1 Harinarayan and plaintiff No.2 Mohan Singh. Second marriage was solmenized with Menabai out of which wedlock there were three children ie., plaintiff No.3 Sohan Singh, plaintiff No.4 Udayram and plaintiff No.5 Radhakishan.

4. It was further averred in the plaint that the plaintiffs and defendant No.1 and 2 ie., Kamlabai and Balmukund are members of one family. Devi Singh being head of the family who had died on 19.4.2006 and his both the wife had died before him around 45 and 10 years ago respectively. It is also stated in the plaint that at the time of filing of suit plaintiffs as well as defendant No.1 and 2 were the successors of late Devi Singh.

5. It was also averred in the plaint that Devi Singh and his brother Rajaram have got the ancestral property partitioned and both of them were in possession of their respective shares of ancestral property. As such the disputed property was received by Devi Singh in partition from his ancestors. As such it is an ancestral property.

6. It is also stated in the plaint that plaintiffs are illiterate persons who live in village. Thus they do not have any knowledge about the revenue records. However, they claim in the plaint that in the suit property plaintiffs as well as defendants No.1 and 2 have 1/5th share.

7. It was also averred that taking advantage of the illiteracy of plaintiffs, Balmukund ie., defendant No.2 has got the name of defendant No.1 Kamlabai mutated in revenue record for the disputed property. The plaintiffs came to know about this fact only when a notice was published in the daily news paper Dainik Bhaskar on 2.9.2010 regarding sale of disputed property. The information about the publication of the said notice was provided by the educated residents of the village. On coming to the terms of this fact plaintiffs contacted with the Patwari of the concerned area and obtained certified copies of the Khasra, trace map and B-1 whereon the plaintiffs came to know that the disputed property is recorded in the revenue record only in the name of defendant No.1 - Kamlabai.

8. It is further stated in the plaint that as soon as the plaintiffs came to know about this fact an objection through their counsel was sent in response to the notice published in the daily news paper. It was alleged in the plaint that the defendant No.1 Kamlabai in connivance with defendants No.2 and 3 is trying to sell the suit property illegally. It is also averred that the defendant No.1 being dumb and unsound mind, defendants No.2 and 3 conspired to get the disputed land sold and for this reason in the notification published in the news paper, the defendant No.3 Gokul has been show as the power of attorney holder of Kamlabai.

9. The plaintiffs claim in the plaint that in accordance with the Hindu Succession Act all of them are entitled for 1/5th share of the disputed land and that th