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Madhya Pradesh High Court · body

2019 DIGILAW 768 (MP)

Manish Babel v. Pramod Babel

2019-11-06

S.C.SHARMA

body2019
ORDER 1. The present petition has been filed under Article 227 of the Constitution of India being aggrieved by order dated 23.4.2019 passed by the trial Court. 2. The facts of the case reveal that the petitioner - plaintiff has filed a civil suit for declaration, partition, possession and for mesne profit and the respondents before this Court are defendants. The plaintiffs and defendants are real brothers and sisters. As per the plaint averment the father expired intestate and being the children a prayer has been made in the plaint for ¼th share in the disputed property. 3. The issue No. 1 framed by the trial Court relates to the fact whether the property belongs to father of the plaintiff and defendants or not? The issue No. 2 was whether the property was initially owned by Late Madanlal Babel (Madanlal Babel is father of Manoharlal Babel) or not? 4. The defendants in their written statement have admitted the fact that the property belongs to their father and it was initially under the ownership of their grand father (HUF Property), hence there was no necessity for deciding the issue No. 1 and 6 and in those circumstances an application was preferred under Order XIV rule 5 of the Code of Civil Procedure, 1908 and the same has been rejected. 5. Thus, the dispute that the property was an ancestral property and it was in the name of their father Shri Manoharlal Babel, was not at all disputed and therefore, the trial Court has erred in law and facts in rejecting the application preferred by the plaintiff. The trial Court while passing the impugned order as a statement was made in the written statement by the defendants that there was a will executed in their favour, has rejected the application of the plaintiff in which a prayer was made to order the defendants to establish the correctness of the will at the first instance. 6. Learned counsel for the respondents - defendants have placed reliance upon a judgment delivered by this Court in the case of Rajendra Khadiwala v. Narendrakumar Shinde, reported in 2014 SCC OnLine MP 4235. 6. Learned counsel for the respondents - defendants have placed reliance upon a judgment delivered by this Court in the case of Rajendra Khadiwala v. Narendrakumar Shinde, reported in 2014 SCC OnLine MP 4235. In the aforesaid case, the defendant has not admitted the facts completely as stated in the plaint and in those circumstances, it was observed that the plaintiff has to lead the evidence, whereas in the present case it was admitted by the defendants that the property is an ancestral property, which was in the name of their father and they came-up with a plea that there is a will in their favour. The trial Court ought to have allowed the application preferred by the plaintiff. 7. Resultantly, this Court is of the considered opinion, as the dispute was in respect of ancestral property and the defendants came-up with a plea that there is a will in their favour, the defendants were certainly required to prove the will and therefore, the impugned order dated 23.4.2019 deserves to be quashed and is hereby quashed. The trial Court is directed to proceed ahead keeping in view the order passed by this Court.