IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI MISC. APPEAL No. 3492 of 2025 SMT SAMEENA BEE AND OTHERS Versus SHER ALI AND OTHERS Appearance:

Shri A.S.Garg, learned senior counsel with Shri Jitendra Verma, learned counsel for the appellants.

Shri Vaibhav Bhagwat, learned counsel for the respondents No.1 to 6.

Shri Avish Mittal, learned counsel for the respondents No.7 and 8.

Shri Vishwajit Joshi, learned counsel for the respondent No.9.

Reserved on : 09.10.2025 Passed on : 02.12.2025 ........................................................................................................................................................

ORDER The plaintiffs have filed this appeal under Order 43 Rule 1(r) of CPC being aggrieved by the order dated 25.3.2025 passed in Civil Suit No.1299- A/2024, whereby application filed by them under Order 39 Rule 1 and 2 of CPC has been rejected.

2. The facts of the case are that appellant No.1 Sameena Bi is legally wedded wife of respondent No.1 Sher Ali. The appellant filed a suit for permanent injunction, partition, mesne profits and partition by contesting that the sale deed executed by the defendant No.1 Sher Ali in favour of the co- defendants to the extent of 1/3rd of suit property be declared as null and void. Interestingly, there are three plaintiffs in the case. Sameena Bi, her son Raees and one Anand Shinde, who claims to be the Power of Attorney holder of plaintiff No.1. However, what rights of the plaintiff no. 3 are affected and what relief claimed by him is not clear. In para 6 it has been stated that he is appointed as Power of Attorney because Plaintiffs No.1 and 2 are illiterate and are not aware about the court process. The basis of the claim of plaintiff No.1 Sameena Bi is that the respondent No.1 Sher Ali is the husband of Sameena Bi and because of cruelty done by her husband their relation came to be disturbed. Hence, he filed an application under Section 125 of Cr.P.C. before the Family Court, Indore in the year of 2010. They entered into a settlement, hence plaintiff No.1 was taken back by respondent-defendant No.1 on 26.9.2013 and after behaving well for some time again plaintiffs No.1 and 2 were expelled from their home by respondent No.1 for getting remarried. It is claimed by the plaintiffs No.1 and 2 that they being legally wedded wife and son out of that wedlock are entitled for share in the ancestral property of Sher Ali. However, the defendant No.1 is systematically alienating the suit property to avoid giving share to plaintiffs No.1 and 2. The appellants filed application under Order 39 Rule 1 and 2 CPC before the trial Court alongwith their plaint. The learned trial Court after considering the application and the response of the defendants concluded in para 11 to 15 that in any of the documents filed by the plaintiffs names were not recorded as Bhumiswami/title holder. The proceedings instituted by the plaintiff No.1 under Section 125 of Cr.P.C.were closed under the settlement arrived at between the parties. As regards the disputed property there is a relinquishment deed dated 24.12.2018 and mutation order dated 30.4.2019, 30.7.2021 and 30.8.2022 as well as permission from the office of Town & Country Planning and from the office of SDO (Revenue) for development of land survey No.311/1 and 311/3 of village Balyakheda, Tehsil Kanadia, District Indore for development of colony by the name Alaska City.

3. Learned counsel for the appellants submits that appellant No.1 is wife and appellant No.2 is son of the respondent No.1 and they have right to be maintained by the husband/father for which he places reliance on the decision of High Court of Patna rendered in the case of State of Bihar Vs. K.M.Zuberi and others, reported in AIR 1986 Pat. 166. He further submits that the application has been rejected by the trial Court merely on the basis of mutation of name of the defendant. However, they have not breached any right of any p