Madhya Pradesh High Court
Haribai & Ors. vs Deo Laxmi Narayan & Ors on 21 January, 2013
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
1 F.A. No.252/1990
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
Hon'ble Shri Justice A.K. Shrivastava
First Appeal No. 252/1990
APPELLANTS: (1)Hari Bai W/o Hakam Singh aged
about 20 years, R/o Sagauriya, Tahsil
Gadarwara, District Narsinghpur,
M.P.
(2)Ram Sewak, S/o Mihilal Brahmin
aged about 38 years.
(3)Gendalal (deleted)
(4) Raj Kumar S/o Mihilal Brahmin
aged about 19 years,
(5) Dwarka Prasad S/o Ramsewak
aged about 9 years minor through
next friend Ramsewak aged 22
years,
(6) Shyam Sunder S/o Phoochand
Brahmin aged about 37 years
resident of Singhpur Tahsil and
District Narsinghpur, M.P.
(7) Kasturi Bai w/o Babulal Sahu
aged about 50 years R/o Niwari,
tahsil Kareli, District Narsinghpur,
M.P.
(8) (a) Smt Phula Bai W/o
Ramdayal, aged 50 years,
(b) Ravishanker, aged 35 years
(c) Lekhram, aged about 24
years
(d) Dhaniram, aged 22 years
(e) smt. Beti Bai, aged 30 years
(f) Smt. Jankibai, aged 18 years
2 F.A. No.252/1990
All R/o Niwari, Tahsil Kareli, District
Narsinghpur, M.P.
(9) Shankarlal, s/o Jalam Chamar,
aged about 35 years, resident of
Barha, Tah. Kareli, District
Narsinghpur.
(10) Kadhori, S/o Ratan Chamar,
aged about 32 years, R/o Barha, Tah.
Kareli, District Narsinghpur.
(11) Ginda S/o Mukundi Chamar,
aged about 10 years, through next
friend father Mukundi Chamar aged
about 23 years, R/o Barha (Chhota),
Tah. Kareli, District Narsinghpur.
(12)Siyaram, s/o Harcharan Brahmin,
aged about 32 years, R/o Khiriya,
Tahsil and District Narsinghpur
(M.P.).
Versus
RESPONDENTS: (1)Deo Laxmi Naryan Ji, Village
Khiriya, Tahsil and District
Narsinghpur, through gardian ad-
litem Beni Prasad S/o Kharagram
Brahmin, Village Khiriya, Tahsil and
District Narsinghpur. (M.P.)
(2) Beni Prasad S/o Kharagram
Brahmin, Village Khiriya, Tahsil and
District Narsinghpur. (M.P.)
(3) Tirath Prasad (deleted)
(4) Bairang Das (deleted)
(5) Dharmadas, S/o Ganjan Prasad
aged about 40 years.
(6) Dayaram, S/o Ganjan Prasad
aged about 28 years.
3 F.A. No.252/1990
(7) Ram Sujan, S/o Ganjan Prasad
aged about 25 years.
(8) Lekhram, S/o Ganjan Prasad
aged about 21 years.
(9) Halke Prasad, S/o Brindavan
Brahmin, aged about 30 years.
(10) Moolchand, S/o Prem Lodhi
aged about 45 years.
(11) Samar Singh, S/oDulichand
Lodhi aged about 36 years.
(12) Govind Prasad Sharma, S/o
Munnalal Brahmin, aged about 36
years.
No.4 R/o of Sas-Bahu and No.12 R/o
village Awariya, Tahsil Kareli,
District Narsinghpur, M.P.
No.5 to 11 R/o village Khiriya, Tahsil
Kareli, District Narsinghpur, M.P.
(13) Ram Sewak, S/o Ambika
Charan Brahmin Upadhyay, R/o
Khiriya, Tahsil Karel, Dist.
Narsinghpur, M.P.
(14) Niranjan S/o Sumar Singh
Rajput aged about 35 years.
(15) Chhotelal (deleted)
(16) Keerat Singh, S/o Prasadi
Kurmi aged about 26 years.
No.14 to 16 's occupation cultivator
all R/o Beener Tahsil Kareli, District
Narsinghpur, M.P.
4 F.A. No.252/1990
(17) Ramratan Kaurav, village
Gobargaon, Tahsil Kareli, District
Narsinghpur, M.P.
(18) Tarachand Kaurav, S/o Ram lal
Kaurav, aged about 70 years, R/o
village Gobargaon, Tahsil Kareli,
District Narsinghpur, M.P.
(19) The State of Madhya Pradesh
through Registrar Public Trust and
Collector, Narsinghpur, M.P.
Shri Kapil Jain, learned counsel for the appellants.
Shri Manas Verma learned counsel for the respondents
No.1 and 10.
ORDER
(21.01.2013)
1. Near about 42 years ago, on 4.10.1971, a civil suit for declaration that the order of the Registrar/Collector, Narsinghpur holding that the property in question is a private trust is null and void and in consequence thereof, the order dated 19.12.1971 of the competent authority, under the Ceiling on Agricultural Holdings Act, Narsinghpur declaring the land to be surplus under the said Act be declared null and void, the possession of the suit property be delivered to first plaintiff Shri Deo Laxmi Narayan Ji and a sum of Rs.3,000/- for movable property show in schedule (e) of the plaint be also directed to be 5 F.A. No.252/1990 paid to the first plaintiff and further that the defendants be directed to submit the accounts and mense profit at the rate of Rs.12,000/- per annum be decreed to be paid in favour of the plaintiffs.
2. The written statement was filed on behalf of defendants No. 1 to 5 and a separate written statement was filed by defendant No.9. Defendants Shankarlal, Ginda and Kadhori (defendants No.11, 12 and 13 respectively) have filed their separate written statements, while defendant No.15 has filed his separate written statement.
3. The learned trial Court examined the witnesses of the plaintiffs and on behalf of defendants, two witnesses Trilok and Hamumant Singh were examined. The Trial court after recording the evidence, decreed the suit holding that the order of the Registrar/Collector, Narsinghpur under case No. 1/Mad B/113(1) year 1959-60 holding that Shri Deo Laxmi Narayan Mandir is a public trust is null and void; it was further decreed that the property mentioned in Schedule-E, which has been sold out by defendants No.1 to 5, that transfer is null and void; the suit was also decreed by holding thatthe order passed in ceiling case No.122 Mad A/90(B)(3)/year 1974-75, passed by the competent authority Narsinghpur dated 19.12.1975 declaring 12.25 acres of 6 F.A. No.252/1990 the land of survey No.42 to be surplus land is null and void and the said order is set aside; the defendants were directed to give possession of the suit property to plaintiff No.1, which is mentioned in schedule-E upto 31.08.1990, failing which the plaintiffs shall be free to get the decree executed from all the defendants; defendants No.1 to 5 are directed to submit the accounts of suit property upto 31.08.1990, when it came in the control of Mishrilal, after the death of Jagannath and for the purpose of rendition of accounts, this decree shall be deemed to be a preliminary decree. In case, in the stipulated period, the accounts are not submitted, the plaintiff No.1 shall be free to file an application for obtaining the final decree; the defendants (except defendant No.19) are directed to deposit the mense profit at the rate of Rs.12,000/- per annum and the defendants are restrained from interfering in the possession of the suit property after the possession is delivered to the plaintiffs.
5. This appeal under Section 96 of the C.P.C. was filed before this Court more than 22 years ago on 23.10.1990. During the pendency of this appeal, several respondents and also appellants 7 and 12 namely Katuribai and Siyaram have died. Eventually, as many as 28 applications have been filed by the appellants to bring 7 F.A. No.252/1990 the legal representatives on record, to set aside the abatement and to condone the delay in filing the legal representatives' application and to set aside the abatement within time.
6. Application I.A. No.11286/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No. 17 Ram Ratan Yadav, on record on 15.09.2011, who has died on 11.07.2001 and the application has been filed after more than 10 years. I.A. No.11288/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No. 11290/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement.
7. Application I.A. No.11293/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.7 Mst. Kasturi Bai on record. In the application it is stated that she has died on 02.09.2005 but the application has been moved after more then six years, on 15.09.2011. I.A. No.11924/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No. I.A. No.11925/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement on 15.09.2011.
8. Application I.A. No.11302/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of 8 F.A. No.252/1990 deceased respondent No.2 Beni Prasad on record. In the application it is stated that he has died on 14.10.2003 but the application has been moved after more than eight years, on 15.09.2011. I.A. No.11306/11 has been filed under Section 5 of the Limitation Act to condone the delay on 15.09.2011.
9. Application I.A. No.11303/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased appellant No.12 Siyaram on record on 15.09.2011 stating therein that the said appellant has died on 12.09.1999. This application has been filed after 12 years. I.A. No.11305/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11309/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
10. Application I.A. No.11304/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.9 Halke Prasad on record was filed on 15.09.2011 stating therein that the said appellant has died on 16.07.2009. This application has been filed after more than 2 years. I.A. No.11307/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11310/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the 9 F.A. No.252/1990 abatement and these applications have been filed on 15.09.2011.
10. Application I.A. No.11312/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.5 Dharamdas on record on 15.09.2011. This application it has been stated that he has died on 04.12.2009, thus the application has been moved near about after one year and 9 months. I.A. No.11314/11 under Section 5 of the Limitation Act and I.A. No.11316/11 under Order 22 Rule 9 C.P.C. have been filed to condone the delay and to set aside the abatement.
11. Application I.A. No.11313/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.10 Moolchand on record on 15.09.2011 and it has been stated that said respondent died on 06.08.2010. This application has been filed after one year. I.A. No.11315/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11317/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
12. Application I.A. No.11318/2011 has been filed under Order 22 Rule 4 C.P.C. for bringing the legal representatives of deceased respondent No.18 10 F.A. No.252/1990 Tarachand Kaurav on record, who has died on 24.07.1996 and thus this application has been filed after 15 years. I.A. No.11320/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11322/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
13. Application I.A. No.11319/2011 has been filed under Order 22 Rule 4 C.P.C. for bringing the legal representatives of deceased respondent No.13 Ramsewak on record has been moved on 15.09.2011 and it has been stated in the application that said respondent died on 12.12.2001. Thus the application has been filed after more than 10 years. I.A. No.11321/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11323/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
14. Since these applications were not moved well in time and no sufficient cause has been shown to condone the exorbitant delay, the applications cannot be allowed. It would be pertinent to mention here that the appellants are quite aware that if a party dies, an application for substitution is to be filed, because in the trial Court, 11 F.A. No.252/1990 some of the plaintiffs were died and their legal representatives were brought on record and similarly some of the defendants were also died and their legal representatives were also brought on record in the Trial Court.
15. In this appeal also, on account of death of appellant No.3, his name was deleted and on account of death of appellant No.8 Ram Dayal, his legal representatives were brought on record. Similarly on account of death of respondent No.15, Chhotelal, his name was deleted. Thus it cannot be said that appellants were not aware of the procedure that if a party dies, an application to bring the legal representatives has to be moved well in time, becuase in the Trial Court as well as before this court also, during the pendency of the appeal, they have filed necessary application to bring the legal representatives of the deceased party and to delete some of the names of the parties, who were died from time to time, those applications were allowed by the learned Trial Court and by this court during the pendency of this appeal. Hence, I am of the view that no satisfactory explanation has been assigned in the application to file applications to bring the legal representatives of the aforesaid parties well in time. Indeed some of the applications have even been filed after 10 years and 15 years from the date of 12 F.A. No.252/1990 the death. Therefore, I am of the view that because no satisfactory explanation has been given in the applications, all these applications deserve to be dismissed and they are hereby dismissed. This appeal is also hereby dismissed as abated.
16. Shri Kapil Jain, learned counsel for the appellants submits that in terms of schedule-E, the possession of the property in question may be obtained by the appellants, however, it is hereby direct that if the decree has not been executed, it may be executed strictly in terms of decree, which has been passed by learned Trial Court.
(A.K.Shrivastava) Judge gn