13. The bare perusal of facts on record would clearly indicate that the Appellants did get some shares in the property by the judgment and order passed by the first appellate Court and thus acquired rights in the partitioned property. In our considered view, such right vested in them by virtue of the judgment and decree of the first appellate Court could not have been negated by the High Court in second appeal by allowing the prayer for withdrawal of suit made in the application.
IN THE SUPREME COURT OF INDIA
Decided On: 19.11.2013
Appellants: Baijo and Anr.
Vs.
Respondent: Gulabsingh (D) through L.Rs. and Ors.
Vs.
Respondent: Gulabsingh (D) through L.Rs. and Ors.
Hon'ble Judges/Coram:H.L. Dattu and Madan B. Lokur , JJ.
1. Delay condoned in filing the application for substitution. Application for substitution is allowed.
2. Delay condoned in filing the special leave petition.
3. Leave granted.
4. These appeals are directed against the judgments and orders passed by the High Court of Madhya Pradesh at Jabalpur (Gwalior Bench) in Second Appeal No. 821 of 2005, dated 2.9.2011 and in Review Petition No. 260 of 2011, dated 17.1.2012. By the impugned judgments and orders, in second appeal the High Court has allowed the I.A. No. 3175 of 2011 filed by the Respondent No. 2 herein and permitted to withdraw the Civil Suit No. 132-A of 1999 filed before the trial Court and disposed of the appeal setting aside the judgment and decree passed by the first appellate Court; and in review petition, the High Court has declined to interfere with the aforesaid judgment and order passed in the second appeal and dismissed the said petition.
5. The facts briefly recapitulated are: the Respondent No. 2-plaintiff had filed a suit for partition and separate possession of the suit schedule property against the Appellants and Respondents No. 1, 3 and 4 herein. After recording of the evidence of the parties to the lis, the trial Court had dismissed the suit filed by the Plaintiff by judgment and order dated 25.9.2002.
6. Aggrieved by the aforesaid, the Plaintiff had filed an appeal before the first appellate Court. The first appellate Court after hearing the Learned Counsel for the parties to the lis has allowed the first appeal and declared that the Plaintiff and the Defendants have certain respective shares in the suit schedule property and directed the Collector to accordingly partition the property by judgment and order dated 10.2.2005.
7. Aggrieved by the aforesaid, the purchaser of suit property from the Defendants had filed second appeal before the High Court. In the said appeal, the Plaintiff had filed an application, I.A. No. 3175 of 2011, inter alia, seeking permission of the Court to withdraw the suit filed by her. The High Court by its impugned judgment and order has allowed the prayer made in the said application and disposed of the appeal in light of the same by setting aside the judgment and order of the first appellate Court, dated 2.10.2011.
8. Aggrieved by the said judgment and order passed by the High Court in second appeal, the Appellants herein filed a review petition. The High Court has observed, inter alia, that there exists no ground for review in the matter which would suggest that prima facie the judgment and order in second appeal is illegal and that no right of the Appellants is affected by the said judgment and order and thus, declined to interfere in the matter and dismissed the petition by judgment and order dated 17.1.2012.
9. The Appellants-defendants are before us in these appeals by special leave impugning the judgments and orders of the High Court passed in second appeal and review petition.
10. The Learned Counsel appearing for the Appellants would contend that the High Court ought not to have granted the prayer made in I.A. No. 3175/2011 for the sole and simple reason that the first appellate Court while allowing the appeal had declared that the Plaintiff and the Defendants have some shares in the suit schedule property and the High Court by allowing the said application vide the impugned judgment and order has taken away the declaration made and relief granted to the Defendants by the first appellate Court.
11. Per contra, Learned Counsel appearing for the Respondents sought to justify the impugned judgments and orders.
12. We have heard the Learned Counsel appearing for the parties to the lis and carefully perused the documents on records and judgments and orders of the Courts below.
13. The bare perusal of facts on record would clearly indicate that the Appellants did get some shares in the property by the judgment and order passed by the first appellate Court and thus acquired rights in the partitioned property. In our considered view, such right vested in them by virtue of the judgment and decree of the first appellate Court could not have been negated by the High Court in second appeal by allowing the prayer for withdrawal of suit made in the application.
14. In that view of the matter, we allow these appeals and set aside the impugned judgment(s) and order(s) passed by the High Court in Second Appeal No. 821 of 2005 and Review Petition No. 260 of 2011. We now request the High Court to decide the second appeal filed by the purchaser in accordance with law after affording opportunity of hearing to the concerned parties.
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