Madhya Pradesh High Court
Salim Mohammad vs Chironji Lal (Died) Through Legal ... on 20 September, 2023
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. PETITION NO. 4911 of 2023
BETWEEN:-
SALIM MOHAMMAD S/O LATIF MOHAMMAD, AGED
ABOUT 58 YEARS, OCCUPATION: LABOURER R/O
TIPTA BAZAR, SABALGARH DISTRICT MORENA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT BANSAL - ADVOCATE)
AND
1. CHIRONJI LAL (DIED) THROUGH LEGAL
REPRESENTATIVES
i. SURESH KUMAR @ KALLA S/O LATE SHRI
CHIRIONJI LAL, AGED ABOUT 46 YEARS, R/O NEAR
SICHAI COLONY KI PURANI TANKI, SABALGARH
(MADHYA PRADESH)
ii. MANOJ @ LALA S/O LATE SHRI CHIRONJI LAL,
AGED ABOUT 48 YEARS, R/O NEAR SICHAI COLONY
KI PURANI TANKI, SABALGARH, PRESENTLY
POSTED AS TEACHER MANPUR, SABALGARH
(MADHYA PRADESH)
iii. MEENA DEVI (WIDOW) D/O LATE CHIRONJI
LAL, AGED ABOUT 53 YEARS, R/O NEAR SICHAI
COLONY KI PURANI TANKI, SABALGARH (MADHYA
PRADESH)
iv. GUDDI W/O RAJESH SHRIVASTAVA D/O CHIRONJI
LAL, AGED ABOUT 44 YEARS, R/O SHYAM NAGAR
COLONY , BODLAROAD AGRA (UTTAR PRADESH)
v. KALLO W/O PRADEEP SAXENA D/O CHIRONJI LAL,
AGED ABOUT 41 YEARS, R/O PHYSICAL ROAD
HOUSING BOARD COLONY, OLD SHIVPURI
(MADHYA PRADESH)
vi. BRAJESH MISHRA S/O MULLARAM MISHRA,
AGED ABOUT 50 YEARS, R/O TIPTA BAZAR, DIGARRA
GALI, SABALGARH, MORENA (MADHYA PRADESH)
vii. SMT. ASHA MISHRA W/O BRAJESH MISHRA,
AGED ABOUT 48 YEARS, R/O TIPTA BAZAR, DIGARRA
GALI, SABALGARH, MORENA (MADHYA PRADESH).
2
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
-----------------------------------------------------------------------------------------------
Reserved on : 24-08-2023
Delivered on : 20-09-2023
--------------------------------------------------------------------------------------- ----
This petition having been heard and reserved for orders coming on
for pronouncement this day, delivered the following:-
ORDER
1. The present petition under Article 227 of the Constitution is preferred by the petitioner taking exception to the orders dated 02-08-2023 (Annexure P/1) passed by the trial Court (I Additional Civil Judge, Senior Division, Sabalgarh) whereby the application under Order XVI Rule 1 and 3 of CPC preferred by the petitioner as plaintiff has been rejected, and order dated 15-03-2022 (Annexure P/2) passed by the same Court whereby the application under Order VIII Rule 1 of CPC preferred by the defendants have been allowed and certain documents were directed to be taken on record.
Regarding order dated 02-08-2023:
2. Precisely stated facts of the case are that petitioner/plaintiff has filed a suit for redemption, declaration and possession against the respondent -Chironjilal who died during pendency of the suit with the averments that originally Rajjak Mohammad was absolute owner of the suit house but he had mortgaged the suit property to the deceased Chironjilal (represented through his L.Rs.) through registered Mortgage Deed dated 16-06-1966. Deceased Chironjilal has taken sign of Rajjak Mohammad on a rent note also and Rajjak Mohammad 3 during his life time failed to get the said house free from mortgage. However, during his life time he executed a registered Will dated 27- 04-1988 in favour of petitioner and he died in 1995.
3. After death of Rajjak Mohammad, petitioner became owner of the suit property, therefore, he filed the instant suit and prayed that the impugned decree dated 07-01-1978 and its application for execution filed after 12 years be declared nullity and prayed to redeem the suit house from the mortgage along with possession.
4. It is the submission of learned counsel for the petitioner that through this application, petitioner/plaintiff wants to bring son of Shridharlal Hardeniya in witness box who prepared the Will at the instance of Rajjak Mohammad. Since Shridharlal expired, therefore, in his place he wants to produce his son -Ashok Hardeniya as witness before the trial Court. Similarly he wants to bring as witness Record Keeper of Office of Sub Registrar where Will was registered. The application was rejected by the trial Court. Approach of trial Court was illegal and perverse, therefore, this petition is preferred. He relied upon the judgment in the case of Chatra Pratap Singh Vs. Tulsi Prasad and others, 2000(3) MPLJ 293.
5. Heard.
6. This is a case where petitioner is trying to call the witnesses through the application under Order XVI Rule and 3 of CPC. So far as calling of witness Ashok Hardeniya is concerned he appears to be son of scribe of alleged Will. Will is to be proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. Since Ashok Hardeniya does not appear to be scribe or he was not present at the time when Will was allegedly executed then in that condition he cannot be an appropriate person to 4 be called as witness. Trial Court did not err in passing the impugned order and rejecting the application in this regard.
7. So far as calling of Record Keeper of Office of Sub Registrar is concerned, he is just a record keeper and only on the pretext of record keeper, he cannot be called as witness as this ground appears to be an inadequate one. Even otherwise, the application is primarily rejected on two counts; one is earlier two application were dismissed by the trial Court on same set of relief, therefore, question of res-judicata applies at subsequent stage of same proceedings {See:V. Rajeshwari Vs. T.C. Saravanabava (2004) 1 SCC 551, Chanderbai Vs. State of M.P., (2011) 4 MPLJ 307 and Jagdamba Oil Agency Vs. State of M.P. 2006 (1) MPLJ 564}, second is on delay and laches because the trial Court has recorded the finding that case is fixed for plaintiff's evidence for last two years since 2020 and plaintiff has not led the evidence, therefore, on this count also the trial Court rejected the application.
8. When the application was decided twice earlier and rejected then no case for interference is made out under the limited scope of petition under Article 227 of Constitution and this Court finds no impropriety, perversity or irregularity in passing the impugned order by the trial Court.
Regarding order dated 15-03-2022:
9. Although in the hearing, petitioner has nowhere pleaded in respect of said order that why it is illegal or perverse but on perusal of record, it appears that this was the application earlier preferred by the petitioner/plaintiff and was rejected. Thereafter again a fresh application has been preferred which was decided vide order dated 02-08-2023. Said order has been discussed in earlier paras and this 5 Court has recorded specific finding that thrice the same application has been preferred and rejected, thus it appears that just to overcome the plea of res judicata, the order dated 15-03-2022 is also challenged.
10. No case for interference is made out in respect of order dated 15-03- 2022 also. The judgment relied upon by counsel for the petitioner is not applicable in the present set of facts as the Will is to be proved in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
11. Resultantly, the petition sans merits and is hereby dismissed.
(ANAND PATHAK)
Anil* JUDGE
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
KUMAR
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
st=Madhya Pradesh,
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CHAURA
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CHAURASIYA
Date: 2023.09.20 18:13:55 +05'30'