ja? ^ c .c-^ ^f 1. f BEFORE THE HON'BLE HI6H COURT OF CHHATTCSSARH AT BILASPUR (C.6.) fT\ F.ft F^ Nb 3^- APPELLANTS:- /•ZdlC, Ai ^s.wl.Sn-it. Manisha / ^f^ ^.•' *^.¥.- RESPONDENTS:- / %•'?'' %s^,- ^' ^ec? /^i-yf IV- ^cl ce^f s-^ ee^ .Z0»0 . Ot^'^ Wd/o Sanjeev Mehta Aged: 40 years 2. Kumari Pallavi Mehta d/o Late Sanjeev Mehta aged 10 years through Natural Mother Manisha Mehta r/o Ratan nagar Jabalpur. Through Smt. Archana Handa aged 45 years r/o House N0 6 Motilal Nehrunagar Bhilai Dlstt. Durg C.6(Attorney Holder) 1.5mt. Shanti Mehta wd/o (Saur-ishankar Mehta aged 75 years r/o 6 Motilal Nehrunagar Bhiai distt. Durg C.6.(Plantiff) ,/ 2. Smt Vimala Mehta wd/o Late (Syanshankar Mehta aged 70 years r/o 6 Motilal Nehrunagar Bhilai Distt. Durg .-u^ /"'." 36 O^a-"1"' C.6.(&efendant) APPEAL UDER ORDERC21 RULE IOSJCIVIL PROCEbURE CODE oSlaa|ffl A6AINST AN ORDER DATED^0.2:2010^JN A4ISC. JUbICAL CASE N0.05/2009 PASSED BY SMT. KANTA MARTCN XII THE AbDl DISTRICT JU&6E AT &UR& fipftewu ypu/io s-N^tSf °•-^ ''t~wl'ea1t/'^^^it m mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra F.A. No. 36/2010 APPELLANTS : Smt Mamsha and another Versus RESPONDENTS : Smt. Shanti Mehta and another Appearance: Shri Arjun Yadav, counsel for the appellants. Shri Pramod Verma, Senior Advocate with Shri P.R. Patankar, counsel for the respondent No. 1. ORALORDER (07.09.2010) This appeal under section 96 read with Order 21 Rule 103 of CPC has been preferred by appellants/objectors who are resisting the decree passed by the trial court of7 Additional District Judge (FTC) Durg on 27/02/2008 in Civil SuitNo.lO-A/2007. (2) The court below which shall hereinafter referred to as MJC court has dismissed the appellant's application under Order 21 Rule 97, 101 ofCPC holding that Ifae appellants are not in possession of the suit property and do not have a share in it, therefore they are not entitled to resist the execution ofthe decree. (3) Civil Suit No. 10-A/2007 was preferred by one Shanti Mehta widow of late Shri Gouri Shankar Mehta against defendants Vimla Mehta, widow of Gyan Shankar Mehta, Archana Handa, Alka Bedi and Sanjay Handa on tfae pleadings that plaintiffs husband was -working as Store Keeper in the Bhilai Steel Plant and had purchased ~? f- // -%^s,:^ "•^icai??^' 2 plot No.6/house, Motilal Nehru Nagar, Old Bhilai by registered sale- deed dated 19/02/1983. Her husband obtained possession ofthe plot and the house constructed thereon. Husband ofdefendant No.l was also employed in the Bhilai Steel Plant who died on 14/06/1973. PlaintifFs husband thereafter allowed the family of his younger brother i.e. defendants to reside in the suit house. Plaintiff's husband died in 1993 and the son ofdefendant No.l namely Sanjeev Mehta died in 2000. At this juncture a dispute started between both tiie families and the plaintiff requested the defendants to vacate the premises and on their failure legal notice terminating licence was sent and thereafter the suit was filed on the ground that after tennination of licence the plaintifif is entitled to recover possession as also damages. (4) In the said suit the defendants stated that the land/house was infact allotted to Shri Gyan Shankar Mehta, husband of defendant No.l and not to Shri Gouri Shankar Mehta, husband ofplaintiffNo.l and that the defendants being the legal heirs of the Gyan Shankar Mehta are in possession of the suit house in their independent right and the plaintifFis not entitled to recover possession. (5) The suit was decreed by the trial court on 27/02/2008. The trial court held that plot No.6/house was purchased by Gouri Shankar Mehta and the plaintiff is owner of the suit house. It was also held that the defendants have not been able to prove that the plaintiffs y husband got recorded the house in his name by keeping the husband T -^•al*—te. '%, ^rf^l -J VI of defendant No.l in dark and by playing fi-aud. The trial court thus concluded that fhe plaintiff is entitled to recover possession from the defendant and tfaat the defendants are also liable to pay damages to the plaintiff. (6) A specific issue was framed in the suit as to whether plot/house No.6 was allotted to G.S. Mehta, Store Keeper or G.S. Mehta, HAPG (Mechanical) Division and the trial court while deciding the said issue recorded a categorical finding that plot/house No.6 was allotted to G.S. Mehta, Store Keeper, husband ofplaintiff. (7) The present appellants/objectors are the daughter-in-law and grand daughter oforiginal defendant No.l Vimla Mehta, being the widow and minor daughter of Sanjeev Mehta, son of Gyan Shankar Mehta. Sanjeev Mehta died in 2000 and from the cause title it appe^rs that after death of Sanjeev Mehta the appellants/objectors started residing at Ratan Nagar, Jabalpur. (8) When the decree passed by the trial eourt was put in execution tl^e appellants/objectors preferred the subject application under Order 21 Rule 97 and 101 ofCPC to submit that they were necessary parties in the suit which has been decided without arraying them and that they are in possession of the suit house, therefore the decree cannot be executed. The appellants have raised the similar plea tfiat the house was infact allotted to the Gyan Shankar Mehta and fhey being the daughter-in-law and grand daughter of Gyan Shankar Mehta are ,^:s-' -^ entitled to a share in the property and as such the decree cannot be executed against them. (9) In eourse of enquiry appellant Manisha Mehta preferred not to graee the witness box, instead, she executed a power of attomey in favour ofArchana Handa who appeared in the witness box to depose that appellant Manisha Mehta keeps on visiting Bhilai and resides in the suit house. It may be noticed that Archana Handa was arrayed as defendant No.2 in suit and the decree against her has become final as the decree has also been confirmed by the High Court in First Appeal No. 104/2008 decided on 8/03/2010. (10) In the record of MJC court the photo identity card of Manisha Mehta is available in which her address is mentioned as house No.2115/E-9, Madan Mahal Ward, Jabalpur. The family ration card ofthe parental house of Manisha Mehta is also available on record, wherein the address is shown as A-9 Ratan Nagar, Jabalpur. From these documents it would appear that the appellants/objectors are not r^siding at Bhilai and that they are not in possession ofthe suit house. The finding recorded by the MJC court to the effect that fhe appellants who are not in possessions of the suit house are not entitled to maintain the application under Order 21 Rule 97 of CPC is thus in accordance with the facts and evidence available on record. (11) Leamed counsel for the appellant relied on the judgment passed by the Supreme Court in Kasturi Vs. lyyamperumal and others (2005) 6 SCC 733 to argue that the appellants were necessary -T^ :^tm"~"^-^y .rftLri'.'-/- -J" (.(^ party in the suit and therefore the decree is not binding on them as they were not arrayed as party. The said judgment is about the application ofOrder 1 Rule 10 (2) ofCPC, it was never an issue in the present suit that the appellants are necessary party. Widow of Gyan Shankar Mehla and other members of the family were already represented in tfae suit and the nature of right claimed by the said defendants are similar to what has been agitated by the present appellant in their applieation under Order 21 Rule 97 of CPC. The judgment relied by the appellant has no application in the faets ofthe present case. (12) The appellants, in fte subject application are claiming right and entitlement in the suit house through her father-in-law and grand father (Gyan Shankar Mehta) respectively, however in the civil suit it has already been decided that tiie suit house was allotted to Gouri Shankar Mehte, Store Keeper. Thus, the appellants have no right to resist the decree. Their application has rightly been rejected by the MJC Court. (13) There is no substance in this appeal which fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge er