IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 10 OF JULY, 2023 MISC. APPEAL No. 292 of 2007 BETWEEN:-

1. SHAKIR MOHAMMAD S/O S/O SHRI MUJAFFAR KHAN , AGED ABOUT 22 YEARS, OCCUPATION: R/O VILLAGE DEVLI, TEH. PURWAI DISTRICT VIDISHA (MADHYA PRADESH)

2. SANABBAR KHAN S/O S/O SHRI SAMSUDDIN KHAN , AGED ABOUT 27 YEARS, OCCUPATION: R/O DEVLI,TEH.PURWAI DISTT.VIDISHA (MADHYA PRADESH)

.....PETITIONER (BY SHRI N.K. GUPTA - SENIOR ADVOCATE WITH SHRI S.D. SINGH -

ADVOCATE)

AND

1. SUKH LAL S/O SHRI BHURA, AGED ABOUT 75 YEARS, R/O VILLAGE IMALIYA, TEH. BASODA DISTRICT VIDISHA (MADHYA PRADESH)

2. PAHAD SINGH S/O SHRI BHURA, AGED ABOUT 47 YEARS, R/O IMALIYA, TEHSIL BASODA DISTT.

VIDISHA (MADHYA PRADESH)

3. STATE OF M.P. THROUGH COLLECTOR, DISTRICT VIDISHA (MADHYA PRADESH)

.....RESPONDENTS (NONE)

This appeal coming on for hearing this day, the court passed the following:

ORDER

1. The present Miscellaneous Appeal has been filed against the judgement and decree dated 13.01.2006, whereby the suit filed by the plaintiff was dismissed by the learned trial Court and the matter was remanded to the trial Court, with liberty to the plaintiff/Respondent No.1 to file a application under Order 6 Rule 17 CPC and after giving opportunity to the defendants to rebut, shall decide it once again and if required shall also adduce evidence and pass the Judgment afresh.

2. Brief facts leading to the case are that the present respondent No.1/plaintiff had filed suit for declaration and permanent injunction with regard to land bearing survey Nos. 10, 25, 44, 98, 99 situated in village Himaliya claiming it to be an ancestral joint Hindu Family property in which plaintiff has half share and till date there is no partition. Further, in the plaint, it was pleaded that Bhura had left two widows Kalabai and Mathariya and after the death of Bhura, Kalabai had executed of a Will in favour of the plaintiff with regard to her share in the property. Hence, now the plaintiff is the owner of the half share of the property and half share is of defendant No.1-Prahalad Singh.

3. In the plaint it was also averred that the defendant No.1 Mathariya and defendant No.2 Prahlad Singh had sold their lands to defendants No. 4 and 5 by way of a registered sale deed dated 02.7.1990 but as the said sale deed was without consideration, no right, title and interest could be said to have accrued in favour of the defendants No. 4 and 5 and also defendants No.1 and 2 had no authority to transfer the undivided land.

4. Written statement was filed and after framing of the issues on the basis of pleadings made by the parties, the matter was put to trial. After recording of the statements of the parties, learned trial Court finally decided the suit vide Judgment and decree dated 13.01.2006, whereby the suit was dismissed.

5. Against the said judgment and decree passed by the learned trial Court on 13.01.2006 first appeal was filed by the plaintiff-Sukhlal and before the first Appellate Court it was contended that the application for amendment was wrongly rejected by learned trial Court and on the basis of the aforesaid fact, learned first appellate Court set aside the judgment and decree passed by learned trial Court and remanded the matter vide order dated 14.12.2006. Being aggrieved, the present appeal has been filed.

6. Learned senior counsel Shri N.K. Gupta has argued that the order of remand dated 14.12.2006 passed by learned first appellate Court was per se illegal. The entire order is based on the provisions of Section 22 of the Hindu Succession Act, 1956, which are not applicable to the present case, as Section 22 speaks of a situation where only one heir proposes to transfer his share or interest in the property, then other heir shall have a preferential right, to purchase the same but in the case in hand property has already been transferred.

7. Learned counsel for the appellant while assailing the impugned order contended that the judgment dated 14.