1 - Ramashanker Gupta S/o Hazarilal Gupta Aged About 51 Years R/o Gandhi Chowk v. 1
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR FA No. 27 of 2001 1 - Ramashanker Gupta S/o Hazarilal Gupta Aged About 51 Years R/o Gandhi Chowk Manendragarh District Koriya (C.G.) ... Appellant versus 1 - Shri Suraj Pal Gupta S/o Sunderlal Aged About 64 Years R/o Gandhi (C.G.). Chowk Manendragarh District Koriya 2 - Ravi Shanker Gupta S/o Sunderlal Gupta Aged About 57 Years R/o C - 58, Tagore Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Shiv Shanker Gupta S/o Sunderlal Gupta Aged About 49 Years R/o C - 11, Shailendra Nagar, S I G Colony, Raipur Chhattisgarh., District : Raipur, Chhattisgarh 4 - (Deleted) Smt. Rambai (Died) Through Lrs. As Per Honble Court Order 09-08-2023 Dated 4.1 - (A) Satyanarayan Kesari S/o Ganga Prasad Kesari R/o Talkies Road, In Front Of Police Station, Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.2 - (B) Shivnarayan Kesari S/o Ganga Prasad Kesari R/o Talkies Road, In Front Of Police Station, Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.3 - (C) Gurunarayan Kesari S/o Ganga Prasad Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.4 - (D) Devnarayan Kesari S/o Ganga Prasad Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.5 - (E) Suryanarayan Kesari S/o Ganga Prasad Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.6 - (F) Aakash Kesari S/o Jaynarayan Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.7 - (G) Vikas Kesari S/o Jaynarayan Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 4.8 - (H) Pravesh Kesari S/o Jaynarayan Kesari R/o Talkies Road, In Front Of Police Station Post Pendra, District Pendra-Gorela-Marwahi (C.G.) 2
Legal Reasoning
5 - Smt. Syamabai W/o Mangal Chandra Gupta Aged About 65 Years D/o Sunderlal R/o Phuhara Chowk Manendragarh District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya :
Decision
6 - (Deleted) Smt. Krishna Devi (Died) Through Lrs. As Per Honble Court 09-08-2023 Order Dated 6.1 - (A) Narendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, Old (M.P.) Gandhi Shahdol, Shahdol Chowk, District Post 6.2 - (B) Surendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, Old (M.P.) Gandhi Shahdol, Shahdol Chowk, District Post 6.3 - (C) Gyanendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, (M.P.) Old Gandhi Shahdol, Shahdol Chowk, District Post 6.4 - (D) Mahendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, Old (M.P.) Gandhi Shahdol, Shahdol Chowk, District Post 6.5 - (E) Shailendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, (M.P.) Old Gandhi Shahdol, Shahdol Chowk, District Post 6.6 - (F) Devendra Kumar S/o Sitaram Gupta R/o Shriram Medical Store, Old (M.P.) Gandhi Shahdol, Shahdol Chowk, District Post 7 - Smt. Radha Devi W/o Umesh Kumar Kesarvani Aged About 55 Years D/o Sunderlal R/o F - 3 Irrigation Colony Raipur Chhattisgarh., District : Raipur, Chhattisgarh 8 - State Of Chhattisgarh Through Collector District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya : 9 - Smt. Chunkibai @ Kuntidevi, Wd/o Hazarilal Gupta Aged About 78 Years R/o Gandhi Chowk Manendragarh District Koriya Chhattisgarh., District : Chhattisgarh Koriya (Baikunthpur), 10 - Hari Prasad Gupta (Dead) Through Lrs. 10.1 - (A) Smt. Rajkumari Devi W/o Late Hari Prasad Gupta Aged About 75 Years R/o C/o Hajari Hotel, Post Manendragarh, District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya : 10.2 - (B) Arun Kumar Gupta S/o Late Hari Prasad Gupta Aged About 54 Years R/o C/o Hajari Hotel, Post Manendragarh, District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya : 10.3 - (C) Rakesh Kumar Gupta S/o Late Hari Prasad Gupta Aged About 52 Years R/o C/o Hajari Hotel, Post Manendragarh, District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya : 10.4 - (D) Gyanesh Kumar Gupta S/o Late Hari Prasad Gupta Aged About 50 Years R/o C/o Hajari Hotel, Post Manendragarh, District Koriya Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh 3 10.5 - (E) Sanjay Kumar Gupta S/o Late Hari Prasad Gupta Aged About 48 Years R/o C/o Hajari Hotel, Post Manendragarh, District Koriya Chhattisgarh., Chhattisgarh District (Baikunthpur), Koriya : 10.6 - (F) Smt. Kiran Devi W/o Anil Kumar Gupta R/o Behind Law College, Press Colony, Post And District Shadol ( M. P. ), District : Shahdol, Madhya Pradesh 10.7 - (G) Smt. Manjula Gupta W/o Manish Kumar Gupta R/o Ganga Plywood Center, Heeraganj, Post And District Kathi (M. P. ), District : Katni *, Madhya Pradesh 11 - Anil Kumar Gupta S/o Hazarilal Gupta Aged About 47 Years R/o Gandhi Chowk Manendragarh District Koriya Chhattisgarh., District : Koriya Chhattisgarh (Baikunthpur), 12 - Vijay Kumar Gupta S/o Hazarilal Gupta Aged About 44 Years R/o Gandhi Chowk Manendragarh District Koriya Chhattisgarh., District : Koriya Chhattisgarh (Baikunthpur), 13 - Ashok Kumar Gupta S/o Hazarilal Gupta Aged About 40 Years R/o Gandhi Chowk Manendragarh District Koriya Chhattisgarh., District : Koriya Chhattisgarh (Baikunthpur), 14 - Lalita Devi (Dead) Through Lrs. 14.1 - (A) Suresh Keshari S/o Late Laxminarayan Keshari Aged About 60 Years R/o Cloth Shop Infront Of Police Station, Pendra Chhattisgarh. 14.2 - (B) Naresh Keshari S/o Late Laxminarayan Keshari Aged About 58 Chhattisgarh Gourla, Years R/o M/s Vastralok, Chhattisgarh., 14.3 - (C) Dinesh Keshari S/o Late Laxminarayan Keshari Aged About 58 Years R/o A 204, Janki Apartment, Infront Of Sanskar Upvan, Kolar Road, Bhopal, Madhya Pradesh., District : Bhopal, Madhya Pradesh 14.4 - (D) Smt. Saroj Kesharwani D/o Late Laxminarayan Keshari Aged About 57 Years W/o Manohar Lal Kesharwani, R/o M/s Vastralok, Seepat Road Rajkishore Nagar, Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 14.5 - (E) Smt. Sarita Kesharwani D/o Late Laxminarayan Keshari Aged About 54 Years W/o Vinod Kumar Kesharwani, R/o Grain Merchant, Sadar Bazar, Bhatapara, District- Balodabazar, Chhattisgarh., District : Chhattisgarh Balodabazar-Bhathapara, 14.6 - (F) Smt. Rani Keshri W/o Late Ramesh Keshari Aged About 57 Years R/o C/o Hotel R.K. Pakace, Pendra, District- Bilaspur, Chhattisgarh., District : Chhattisgarh Bilaspur, 14.7 - (G) Ashis Keshari S/o Late Ramesh Keshari Aged About 38 Years R/o C/o Hotel R.K. Pakace, Pendra, District- Bilaspur, Chhattisgarh., District : 4 Bilaspur, Chhattisgarh 14.8 - (H) Abhishek Keshari S/o Late Ramesh Keshari Aged About 30 Years R/o C/o Hotel R.K. Pakace, Pendra, District- Bilaspur, Chhattisgarh., District : Chhattisgarh Bilaspur, 14.9 - (I) Smt. Ankita Gupta D/o Late Ramesh Keshari Aged About 36 Years W/o Rishi Gupta, R/o Behind Satkar Hotel, Infront Of Shiv Temple, Narmadapara, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 14.10 - (J) Akansha Gupta D/o Late Ramesh Keshari Aged About 34 Years W/o Naveen Gupta, R/o 442 Neelam Umbrella Factory, Sant Nagar, Shambhu Takiz Road Katni, Madhya Pradesh., District : Katni *, Madhya Pradesh 15 - Smt. Sumitra Devi W/o Shri Hemchandra Kesharwani Aged About 49 Years D/o Hazarilal Gupta, R/o Hemchandra Kesharwani, Kesharwani Kirana Dukhan, Ganj Ke Pas, Baloda Bazar, District - Raipur Chhattisgarh., District : Chhattisgarh Raipur, 16 - Smt. Asha Gupta W/o R. K. Gupta, D/o Hazarilal Gupta, Sales Tax Officer, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 17 - Smt. Mamta Gupta W/o Shri Prakash Chandra Gupta, Advocate R/o Shri Prakash Chandra Advocate, Beohari, District Sehdol. ... Respondents For Appellant : Ms. Sharmila Singhai, Senior Advocate assisted For Respondents No. 2, 3, 5 and 7 For State/Respondent No. 8 by Ms. Kanchan Kalwani, Advocate : Mr. Shakti Raj Sinha, Advocate : Mr. Shailja Shukla, Dy.G.A. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 23-07-2025 1) Appellant/Defendant no. 3 has filed this first appeal assailing the judgment and decree passed by the learned Additional District Judge, Manendragarh, District – Koria, in Civil Suit No. 8-4/1984 dated 23.11.2000, whereby the suit filed by the respondents/plaintiffs for redemption of mortgage, possession and mesne profit was decreed. 2) Facts of the present case are that the plaintiffs/respondents filed a suit for redemption of mortgage, possession and mesne profit pertaining to 5 Khasra Nos. 150/2, 151 and 263, total ad-measuring 8.88 acres situated at Village–Chaughada, Tehsil–Manendragarh, District–Koria inter-alia on the ground that there was a partition between Lt. Sunderlal [original plaintiff] and Lt. Hazarilal on 18.05.1966 and the same was registered on 17.07.1969. In that partition, 3/4th share of the suit property fell in Sunderlal’s share while 1/4th share of the suit property remained with Hazarilal’s. Sunderlal pleaded that 3/4th share of the suit property was allowed to remain with Hazarilal, who was permitted to retain its possession after the payment of consideration of Rs. 6,000/- by advancing the sum to Sunderlal and on re-payment of Rs. 6,000/- at any time within five years, the land would be reverted to Sunderlal. Sunderlal further pleaded that despite the refund of Rs. 6,000/-, Hazarilal failed to redeem the mortgage. Defendants filed a written statement and denied the plaint averments. Learned trial Court framed various issues; parties led evidence, and the learned trial Court vide judgment and decree dated 23.11.2000 decreed the suit. 3) Defendant No. 3/appellant has preferred this first appeal under Section 96 of CPC before this Court, assailing the judgment and decree passed by the learned Trial Court. An application under Order 22 Rule 4 of CPC has been moved by the appellant on 02.11.2024 inter-alia on the ground that Suraj Pal Gupta/respondent No. 1/plaintiff No. 1 had expired on 05.02.1999 and the right to sue survives through his legal representatives. It is also informed that one of the legal representatives of Lt. Suraj Pal Gupta has also died, and the application has been moved for the substitution of his legal representatives. 4) The judgment and decree were passed by the Trial Court in favour of 6 the plaintiffs on 23.11.2000, whereas plaintiff No. 1, namely Suraj Pal Gupta, was no more on 05.02.1999, i.e. prior to the date of the judgment and decree, and no steps were taken by the co-plaintiffs to substitute his legal representatives. 5) Learned Senior counsel appearing for the appellant/defendant No. 3 submits that the plaintiffs had filed a suit for redemption of mortgage, possession and mesne profit, and the decree passed in favour of the plaintiffs is inseverable. She would further submit that no steps were taken by the co-plaintiffs to substitute the legal representatives of Suraj Pal Gupta; therefore, the entire suit stood abated. She has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Budh Ram & Others. Versus Bansi & Others1. 6) On the other hand, learned counsel appearing on behalf of Respondents No. 2, 3, 5 and 7/plaintiffs submits that a decree passed in favor of a dead person would be nullity. He further submits that the suit would abate against the dead person alone, and the entire suit will not abate. He contends that the application moved under Order 22 Rule 4 of CPC may be allowed. 7) Heard learned counsel for the parties and perused the record. 8) Admittedly, Suraj Pal Gupta died on 05.02.1999, whereas the judgment and decree were passed on 23.11.2000. The co-plaintiffs never took any steps for the substitution of his legal representatives, thus a decree was passed in favour of a dead person. Subsequently, defendant No. 3 preferred a first appeal before this Court and notices were issued to the respondents. As per the office report, Lt. Suraj Pal Gupta had expired on 05.02.1999, and such communication was received by the office on 1. (2010) 11 SCC 476 7 10.04.2001. 9) The Hon’ble Supreme Court in the matter of Budh Ram (supra) while dealing with a similar issue held that where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. It is further held that every co-owner has a right to possession and enjoyment of each and every part of the property in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place. The relevant paras of the aforementioned judgment are reproduced herein below:- 18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co- owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place. 19. In the instant case a declaratory decree was passed in favour of respondents/plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants/applicants had sought relief against Smt. Parwatu before the 1st Appellate 8 court as there was a decree in her favour, passed by the Trial Court where Smt. Parwatu had been impleaded by the appellants/applicants as proforma respondent. In such a fact-situation, she had a right to contest the appeal. Once a decree had been passed in her favour, a right had vested in her favour. On her death on 19.11.2000, the said vested right devolved upon her heirs. Thus, appeal against Smt. Parwatu stood abated. In the instant case, the 1st Appellate Court rejected the application for condonation of delay as well as the substitution of LRs of Smt. Parwatu, respondent No. 4 therein. 10) In the present case, the plaintiffs filed a suit for redemption of mortgage, possession and mesne profit and the decree of joint possession was passed in favour of the plaintiffs by the Trial Court. It is clear that there was no partition between the plaintiffs; thus, possession would be inseverable between the plaintiffs. Thus, in my opinion, as Suraj Pal Gupta, one of the plaintiffs, died on 05.02.1999, it can safely be presumed that the suit had stood abated before the learned Trial Court itself. The fact of the death of Suraj Pal Gupta was brought to the notice of the trial Court by other co-plaintiffs. 11) Taking into consideration the law laid down by the Apex Court in the matter of Budh Ram (supra) and the above-discussed facts, the suit itself is dismissed being stood abated. 12) The application(s) moved by the appellant cannot be considered. Accordingly, all pending applications stand disposed of. 13) Accordingly, this first appeal stands disposed of. Sd/- (Rakesh Mohan Pandey) JUDGE AjinkyaDigitally signed by AJINKYA PANSARE Date: 2025.07.25 18:27:38 +0530