Madhya Pradesh High Court
Saeed Hussain (Dead) Thr. Legal ... vs Ramautar Chamar (Dead) Thr. Legal ... on 25 November, 2022
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 25th OF NOVEMBER, 2022
FIRST APPEAL No. 927 of 2017
BETWEEN:-
1. SAEED HUSSAIN (DEAD) THR. LEGAL
REPRESENTATIVES SMT. AYESHA BEGUM W/O
LATE SAEED HUSSAIN, AGED ABOUT 55 YEARS,
OCCUPATION: HOUSE WIFE R/O PANNILAL
CHOWK, SATNA, TEHSIL RAGHURAJNAGAR
(MADHYA PRADESH)
2. SMT AYESHA BEGUM W/O LATE SAEED
HUSSAIN, AGED ABOUT 55 YEARS,
OCCUPATION: HOUSEWIFE R/O PANNILAL
CHOWK, SATNA, TEHSIL RAGHURAJNAGAR
(MADHYA PRADESH)
3. SUHAIL AHMAD S/O LATE SAEED HUSSAIN,
AGED ABOUT 35 YEARS, OCCUPATION:
AGRICULTURE R/O PANNILAL CHOWK, SATNA,
TEHSIL RAGHURAJNAGAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DEVDATT BHAVE-ADVOCATE)
AND
1. RAMAUTAR CHAMAR (DEAD) THR. LEGAL
REPRESENTATIVES SMT. DRAUPADI
CHOUDHARY W/O LATE SHRI RAMAUTAR
CHOUDHARY, AGED ABOUT 55 YEARS,
OCCUPATION: HOUSE WIFE R/O NEW BASTI
HANUMAN NAGAR, TEHSIL RAGHURAJNAGAR,
(MADHYA PRADESH)
2. ARTI CHOUDHARY D/O LATE RAMAUTAR
CHOUDHARY, AGED ABOUT 28 YEARS,
OCCUPATION: STUDENT R/O NEW BASTI
HANUMAN NAGAR, TEHSIL RAGHURAJNAGAR,
(MADHYA PRADESH)
3. REKHA CHAOUDHARY D/O LATE RAMAUTAR
CHOUDHARY, AGED ABOUT 25 YEARS,
Signature Not Verified
Signed by: ROSHNI SINGH
Signing time: 11/29/2022
3:22:55 PM
2
OCCUPATION: STUDENT R/O NEW BASTI
HANUMAN NAGAR, TEHSIL RAGHURAJNAGAR,
(MADHYA PRADESH)
4. LKISHAN S/O LATE RAMAUTAR CHOUDHARY,
AGED ABOUT 20 YEARS, OCCUPATION:
STUDENT R/O NEW BASTI HANUMAN NAGAR,
TEHSIL RAGHURAJNAGAR, (MADHYA
PRADESH)
5. SANDEEP KUMAR AGRAWAL S/O KEDARNATH
AGRAWAL, AGED ABOUT 30 YEARS,
OCCUPATION: AGRICULTURE NEAR
DHANWARI STADIUM SATNA TEHSIL
RAGHURAJNAGAR (MADHYA PRADESH)
6. VIJAY SINGH PATWARI HALKA NO 96 SATNA
SATNA (MADHYA PRADESH)
7. COLLECTOR THE STATE OF MADHYA PRADESH
SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAVENDRA SHUKLA-ADVOCATE)
(MS. KAMLESH TAMRAKAR-PANEL LAWYER FOR STATE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on I.A. No.14925/2017, which is an application under Section 5 of the limitation Act for condonation of delay in filing the first appeal.
2. Registry has reported this appeal to be barred by 213 days.
3. Condonation of delay has been sought on the ground that the sole plaintiff/Saeed Hussain was conducting the case, who died just 2-3 months prior to the passing of impugned judgment and decree and the counsel appearing on his/their behalf Shri Abdul Jabbar had assured that he will inform the appellants but after passing of impugned judgment and decree he did not inform and ultimately the counsel himself died on 06.03.2017. It is contended in the application that when the appellants got knowledge of the impugned Signature Not Verified Signed by: ROSHNI SINGH Signing time: 11/29/2022 3:22:55 PM 3 judgment and decree through their relatives, then they contacted to the counsel at Jabalpur and filed the appeal.
4. By filing reply, the respondents have denied the averments made in the application with the prayer of dismissal of the application.
5. Heard learned counsel for the parties and perused the record.
6. The unrebutted averments made in the application shows that original plaintiff/Saeed Hussain had died on 31.07.2016 and after the substitution of the appellants, the judgment and decree was passed on 17.12.2016, thereafter, the counsel Abdul Jabbar also died on 06.03.2017. Prima facie it appears that the counsel appearing on behalf of the appellants could not inform the appellants about the impugned judgment and decree, therefore, in the light of decision of Supreme Court in the case of N. Balakrishnan vs M. Krishnamurthy AIR 1998 SC 3222 there is sufficient ground for condonation of delay in filing of the appeal.
7. Accordingly, the delay of 213 days deserves to be and is hereby condoned and application I.A.No.14925/2017 is allowed and disposed off.
8. Also heard on the question of admission.
9. After arguments at length, learned counsel for the appellants prays for withdrawal of this appeal as well as suit with the contention that the learned trial Court has vide para 10 of its impugned judgment, held the plaintiffs to be owner/bhumiswami of the land survey no. 371/4/1क area 22 acre situated in Mauja Satna and similarly the defendant 1 has been found to be owner/bhumiswami of land survey No.371/36क/1/1क area 4300 sq. ft. situated in Mauja Satna. Accordingly, he submits that it was for the trial Court to get the land demarcated on its own and no application under Order 26 Rule 9 of C.P.C. was required to be filed by the appellants.
Signature Not Verified Signed by: ROSHNI SINGH Signing time: 11/29/2022 3:22:55 PM 410. In my considered opinion in the light of findings recorded by learned Court below and in the light of provisions contained in Section 257 (g) of M.P. Land Revenue Code, 1959, the only remedy available to the appellants/plaintiffs is to file an application before Tahsildar provided under Section 129 of the Code of 1959.
11. Accordingly, there being clear dispute of demarcation, this Court has no hesitation to grant liberty to the appellants/plaintiffs to move application before the Tahsildar under Section 129 of M.P. Land Revenue Code, 1959 and if such an application is filed by the appellants/plaintiffs, the same shall be considered by learned Tahsildar in accordance with law.
12. With the aforesaid observations, this appeal/suit is permitted to be withdrawn. All other pending I.As. also stand disposed off.
(DWARKA DHISH BANSAL) JUDGE R Signature Not Verified Signed by: ROSHNI SINGH Signing time: 11/29/2022 3:22:55 PM