IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

nd

ON THE 2 OF DECEMBER, 2025 SECOND APPEAL No. 137 of 2006 RAMADEVI (DELETED) THR. LR. SMT. UMA DEVI YADAV Versus RAMKALI AND OTHERS Appearance:

Mr. Vinod Kumar Bhardwaj - Senior Advocate, assisted by Mr. Anand Vinod Bhardwaj and Mr. Anand Raghuwanshi - Advocates for LR. of appellant.

Mr. Naval Kumar Gupta - Senior Advocate, assisted by Mr. Santosh Agrawal and Mr. Saket Sharma - Advocates for respondents No. 1 and 2.

Mr. Sanjay Singh Kushwaha - Govt. Advocate for respondent No. 3 / State.

JUDGMENT This second appeal under Section 100 of the CPC has been filed against the judgment and decree dated 23/01/2006 passed by Additional District Judge, Lahar, District Bhind in Civil Appeal No. 6/2004, as well as judgment and decree dated 31/03/2004 passed by Civil Judge, Class I, Lahar, District Bhind in Civil Suit No. 6A/2000.

2. Appellant is the defendant who has lost his case before both the Courts below.

3. This second appeal was admitted on following substantial questions of law:

"i. Whether the courts below erred in setting aside the judgment and decree dated 12-5-1982 passed in civil suit no.297-A/1982 when the plaintiff has not sought the relief to set-aside the previous decree?

ii. Whether the courts below erred in holding that suit is not time barred?

iii. Whether the learned lower appellate court erred in rejecting the appellant's application under order 41 rule 27 CPC and allowing the application under order 41 rule 27 CPC of respondent no. 1?"

4. Counsel for appellant has raised a solitary contention to the effect that by filing the suit, since plaintiff had challenged a compromise decree, therefore, in view of Order 23 Rule 3A of CPC, civil suit was not maintainable and plaintiff should have either filed an appeal or should have filed an application before the same Court for setting aside the compromise decree.

5. So far as substantial questions of law No. (ii) and (iii) are concerned, no arguments were raised, and therefore, counsel for appellant has pressed the substantial question of law No. (i) only.

6. Since substantial questions of law Nos. (ii) and (iii) were not pressed, therefore, they are answered in negative, and this Court has confined itself to substantial question of law No. (i) only.

7. The facts necessary for disposal of present suit, in short, are that respondent Ramkali filed a suit for declaration of title and permanent injunction in respect of Survey Nos. 679, 680, 715, 716, 720, 721, 722, 723, 724, 729, 732, total area 3.91 hectares, situated in Kunwarpura No. 2, Tahsil Lahar, District Bhind. It was the case of plaintiff that name of defendant No. 1 is recorded over one half of the aforesaid disputed property and plaintiff has one half share in the share of defendant No. 1, and in total, it was claimed that plaintiff is the owner of 1/4th part of the disputed property. It was the case of plaintiff that disputed property was the ancestral property of plaintiff, as well as defendants No. 1 and 2. Marriage of defendant No. 2 was performed by father of the plaintiff, namely Maharaj Singh, during his lifetime. At the time of marriage of defendant No. 2 with Dwarka Prasad, resident of village Uchiya, District Datia, gold, jewellery as well as cash of her share was given. After the marriage, defendant No. 2 is residing in village Uchiya along with her husband. Thus, it was claimed that defendant No. 2 has no concern with the property in dispute and she does not have any right or title over the property in dispute. Accordingly, it was claimed that after the death of Maharaj Singh, property in dispute was inherited by plaintiff and defendant No. 1. The husband of plaintiff, namely Sahab Singh, and husband of defendant No. 1, namely Jodha Singh, were the real brothers being sons of Ramdayal Yadav. After the marriage of plaintiff and defendant No. 1, father of plaintiff and defendant No. 1 kept their husbands as ghar-jamai. Accordingl