Late Shri Modiram Through Lrs. Smt. Kala ... vs Late Smt. Ayodhya Bai Thr Lrs Gulab Bai on 1 March, 2023

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Madhya Pradesh High Court

Late Shri Modiram Through Lrs. Smt. Kala ... vs Late Smt. Ayodhya Bai Thr Lrs Gulab Bai on 1 March, 2023

Bench: Vivek Rusia

                            1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                          BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                  ON THE 1 st OF MARCH, 2023
                MISC. PETITION No. 3394 of 2022

BETWEEN:-
1.    LATE SHRI MODIRAM THROUGH LRS. SMT.
      KALA BAI W/O LATE SHRI MODIRAM, AGED
      ABOUT 60 YEARS, OCCUPATION: HOUSEWIFE
      DAMPURA, VILLAGE HARSOLA TEHSIL MHOW
      DISTRICT INDORE (MADHYA PRADESH)

2.    PAWAN JAT S/O LATE SHRI MODIRAM JAT, AGED
      ABOUT 36 YEARS, OCCUPATION: AGRICULTURE
      DAMPURA, VILLAGE HARSOLA TEHSIL MHOW,
      DISTRICT INDORE (MADHYA PRADESH)

3.    BHARAT JAT S/O LATE SHRI MODIRAM JAT,
      AGED    ABOUT   34   YEARS, OCCUPATION:
      AGRICULTURE DAMPURA, VILLAGE HARSOLA
      TEHSIL MHOW, DISTRICT INDORE (MADHYA
      PRADESH)

                                                  .....PETITIONERS
(SHRI RISHI TIWARI, LEARNED COUNSEL FOR THE PETITIONERS)

AND
1.    LATE SMT. AYODHYA BAI THR LRS GULAB BAI
      W/O SHRI GHASIRAM, AGED ABOUT 59 YEARS,
      VILLAGE AALI TEHSIL AND DISTRICT INDORE
      (MADHYA PRADESH)

2.    GOPAL GIRI S/O MAHADEV GIRI OCCUPATION:
      AGRICULTURE DAMPURA, VILLAGE HARSOLA
      TEHSIL MHOW, DISTRICT INDORE (MADHYA
      PRADESH)

3.    MUKESH S/O MAHADEV GIRI OCCUPATION:
      AGRICULTURE DAMPURA, VILLAGE HARSOLA
      TEHSIL MHOW, DISTRICT INDORE (MADHYA
      PRADESH)

4.    STATE OF MP THROUGH THE COLLECTOR
                                      2
      COLLECTOR         OFFICE,       INDORE       (MADHYA
      PRADESH)

5.    GRAM    PANCHAYAT,  VILLAGE   HARSOLA
      THROUGH     SARPANCH GRAM   PANCHAYAT
      HARSOLA TEHSIL MHOW DISTRICT INDORE
      (MADHYA PRADESH)

                                                                .....RESPONDENTS
(SHRI NITIN H. PHADKE, LEARNED COUNSEL FOR RESPONDENT NO.1;
SHRI ANIL NAGRANI, LEARNED COUNSEL FOR THE RESPONDENT
NO.3; AND SMT. VINITA PHAYE, LEARNED GOVERNMENT ADVOCATE
APPEARING ON BEHALF OF ADVOCATE GENERAL / RESPONDENT
NO.5.)

      T h is petition coming on for orders this day, t h e cou rt passed the
following:
                                      ORDER

Heard on IA No.611/2023 , an application for modification of order dated 06.01.2023.

The present application is filed seeking factual correction in the order dated 06.01.2023, whereby the present miscellaneous petition was partly allowed.

Shri Rishi Tiwari, learned counsel appearing for the petitioner submits that in para 5 of the order dated 06.01.2023, this Court has observed that the plaintiff Late Ayodhyabai filed a suit for declaration of title as well as temporary injunction, which is partially correct. In fact, Ayudhyabai has filed a suit seeking declaration to the effect that the suit land sold by the defendants is in violation of the order of status quo granted by the High Court in pending First Appeal. Hence such sale is void, hence same be corrected and final order be modified by dismissing MP.

Shri Nitin Phadke, learned counsel appearing for respondent No.1 and Shri Anil Nagnari, learned counsel appearing for respondent No.3 are not disputing this fact that Ayodhyabai did not seek a declaration of title in this suit, 3 but they submit that in order to decide the locus, the trial Court may examine the title of Ayodhyabai in the suit. But now Ayodhyabai has expired and Gulabbai filed an application for bringing her name as the legal representative on the basis of Will of Ayodhyabai.

The petitioners are disputing the Will, therefore, Gulabbai in order to prove her title is required to seek a relief of declaration of title, hence filed an application under Order 6 Rule 17 CPC. That such declaration is required for two purposes, (1) to continue the suit in place of Ayudhyabai and (2) in order to decide the application under Order 22 Rule 3 of the Code of Civil Procedure, 1908 (herein after referred to as the Code), for which, this Court has already remanded the matter to the trial Court to decide the application under Order 22 Rule 5 of the Code by summoning Leelabai in the suit, who is said to be the biological daughter of the Ayodhyabai.

It is informed that the applications under Order 22 Rule 3 of the Code have not been decided so far. Therefore, the trial Court is directed to decide the application under Order 22 Rule 3 within the scope of Order 22 Rule 5 of the Code, first before proceedings in the suit any further, because decision on application under Order 22 Rule 3 of the Code will decide the right of Gulabbai to contest the suit further.

Accordingly, IA No.661/2023 stands disposed of. Order dated 06.01.2023 is modified accordingly.

The Registry is directed to issue certified copy of order dated 06.01.2023 and 01.03.2023 together.

(VIVEK RUSIA) 4 JUDGE rcp RAMESH CHANDRA PITHWE 2023.03.02 10:16:20 +05'30'

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