IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 19 OF FEBRUARY, 2026 MISC. PETITION No. 2102 of 2019 RAJ BAHOR AND OTHERS Versus KEMALA PRASAD PANDEY (DEAD) THR. LRS. SMT. LAXMI DEVI AND OTHERS Appearance:

Shri Abhay Shankar Pathak - Advocate for the petitioners.

Shri Sudhir Kumar Paroha - Advocate for LRs of the respondent No.1.

Ms. Priti Singh - Advocate for the respondents No.14, 15 & 17 to 19.

ORDER This is a held up case and the proceedings of the trial Court have been stayed since 12.07.2019.

2. The present petition has been filed by the petitioners, who are original defendants No.5 and 6 being aggrieved by the order dated 10.11.2018 passed by the trial Court, whereby the trial Court has rejected the written statement filed by the defendants No.5 and 6 on the ground that the written statement is essentially against the co-defendants and which is not maintainable in terms of the scope of Order 8 Rule 6-A C.P.C.

3. The necessary facts for the purpose of disposal of present petition are that the suit in question has been filed by the plaintiffs seeking partitions and separate possession. The said suit has been filed on the assertion that the ancestor of the plaintiffs and various defendants including defendants No.5 and 6 was one Bodal Ram, who had four sons and one of his sons was one Dashrath Prasad. Dashrath Prasad had three sons, one of whom was Ramchand and Ramchand had no issue. After death of Ramchand, his widow Muthaiya was living with the plaintiffs and defendant No.1. This is one of the assertions in the plaint among various other assertions.

4. The defendants appeared in the suit and defendants No.5 and 6 filed written statement as well as counterclaim on the ground that the said lady Muthaiya had executed a Will on 02.01.1958 and on the basis of Will executed by Muthaiya in the counterclaim, relief has been claimed.

5. The trial Court has rejected the said counterclaim on the ground that the relief in the counterclaim essentially relates to relief against some of the defendants, namely defendant No.2 and some other defendants. Therefore, by holding that the counterclaim is not maintainable against co-defendants in terms of Order 8 Rule 6-A CPC, the counterclaim has been rejected.

6. Upon considering the assertions in the plaint and counterclaim, it is seen that in one of the matters in dispute is the case of the property of deceased Ramchand, who was issueless and his wife was Muthaiya. On one hand, the plaintiff claims that Muthaiya has been living with the plaintiffs and they are staking claim to the share of Muthaiya. Even otherwise, it is a partition suit and if share of Muthaiya is not claimed by the plaintiffs, then it would be equally distributed among various other branches of the family including the plaintiffs and some defendants, and if a person has claim of Will of Muthaiya, then it would affect all the other defendants as well as the plaintiffs. Therefore, was the counterclaim is on the basis of Will executed by Muthaiya, then it will affect everybody in the suit including the plaintiffs to some extent, and other defendants.

7. In a partition suit, it is settled in law that every co-sharer is in the character of plaintiff though he may be arrayed as a defendant. Every party has a right to get his share in a partition suit and he being impleaded either as a plaintiff or as a defendant is not conclusive of his character as plaintiff or defendant.

8. Deceased Muthaiya was part of the same family of which the plaintiffs are part and if there is a Will of Muthaiya, which the present petitioner/defendants No.5 and 6 want to assert, then it would affect the right of everybody including the right of the plaintiff, though the right of co- defendants may be affected to greater degree as compared to right of the plaintiffs, but it cannot be said that it is a counterclaim by a defendant against a co-defendant.

9. It has been held by the High Court of Karnataka in Smt. Gowram