Raghuvir Sahaye vs Vijay Kumar Johri

Court: Madhya Pradesh High Court
Decided on: 26-03-2026

<div> NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 1 MA-1001-2012 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA th ON THE 26 OF MARCH, 2026 MISC. APPEAL No. 1001 of 2012 RAGHUVIR SAHAYE Versus VIJAY KUMAR JOHRI AND OTHERS Appearance: Ms. Shobha Menon - Senior Advocate assisted by Mr. Rahul Choubey - Advocate for the appellant. Mr. Varun Jain - Panel Lawyer for the respondent No.14-State. None for the other respondents, though served. Reserved on:- 27.02.2026 Pronounced on:- 26.03.2026 ORDER The judgment and the decree passed in Regular Civil Appeal No.5A / 2010 decided on 28-07-2011 by III Additional District Judge, Raisen is under challenge here, whereby setting aside the judgment delivered on 26-03- 2010 by Additional Judge to the Court of First Civil Judge Class-I Gauharganj, District Raisen in Civil Suit No. 30-09-2009, the first appellate Court remanded the matter back to the Court of Civil Judge, directing it to get the thumb impression of testator Ram Sahay on will, compared with the thumb impression available in his service book and after obtaining the report of handwriting expert, provide an opportunity to both the parties and decide the case afresh on all issues. Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55 NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 2 MA-1001-2012 2. Facts in brief are that respondents No. 1 and 2 (hereinafter referred to as plaintiffs) filed a suit for declaration, injunction and possession, claiming their share in the disputed property which according to them was their ancestral property through their maternal grandfather Ram Sahay. The Civil Suit was contested by present appellant, who was defendant No.8 before the trial Court and also by defendants No.7, 9, 10 and 11 respectively Rameshwari Devi, Shanti Devi, Bhagwan Sahay and Govind Sahay. Legal representatives of Rameshwari Devi, Bhagwan Sahay and Govind Sahay were brought on record before the trial Court itself. The significant aspect of dispute is that a counterclaim was filed by appellant herein that is defendant No.8, claiming that a will was executed in his favor by Ram Sahay, bequeathing the entire share in the disputed property to him. Defendants No.7, 9, 10 and 11 contested the suit claiming that property was of the recorded ownership of defendants No.10 and 11, as they retrieved it from the heirless disposition of property. Both plaint and counterclaim were considered by the trial Court. During the pendency of Civil Suit, defendants No.7, 9, 10 and 11 filed an application to amend their written statement in reference to the counterclaim of defendant No.8, contending that said counterclaim was affecting their legal rights in the suit property, but their amendment application was rejected and the order of rejection was not challenged before any higher Court. 3. The issue of execution of will in favor of defendant No.8 was, thus, actively involved in the Civil Suit and to examine its genuineness, the trial Court allowed the application moved by defendants No.7, 9, 10 and 11 Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55 NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 3 MA-1001-2012 for its probe through handwriting expert. This order was assailed by defendant No.8 (appellant herein) before the High Court in WP No.10502/2006 and the same was disposed of with certain directions. The trial Court directed the handwriting expert to place his report after comparing and verifying the signature of Ram Sahay on the alleged will, with the signatures available in his bank account documents. The report was placed on record and it was against the stance taken by defendant No.8. He filed objection on the report and the same was rejected vide order dated 06.04.2009. Thus, the handwriting expert report was to be read against defendant No.8, as it was given against the position held by him and his objections filed against the report were also rejected by the trial Court. Relevantly, the order of rejection was not challenged by defendant No.8 before any higher Court. Contrary to this naturally flowing course of trial, the Court of Civil Judge, in its judgment marked as Annexure A-1, discarded the handwriting expert report and, by dismissing the civil suit, it allowed the counterclaim of defendant No.8 (present appellant) holding that the suit property was bequeathed to him under the will and thus, he was the owner of the suit property. Thus the counter-claim for declaration of title and possession came to be allowed. 4. The effect of the decree passed on counter-claim was not only limited to the extent that the civil suit of plaintiffs was dismissed, but right, title and interest of defendants No.10 and 11 in the suit property, who were the recorded owner of it, were entirely unsettled by this decree. They, in said purview, were aggrieved of the judgment of the trial Court and accordingly Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55 NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 4 MA-1001-2012 RCA No. 5A/2010 was preferred by the legal representatives of defendants No.10 and 11. Deciding this first appeal, the appellate Court remanded the civil suit with the directions mentioned in para 1 of this order. 5. This Court has not only heard the appellant (defendant No. 8) on the facts of the case, but also on the point whether a counter-claim is permissible to be filed by one of the defendants against his co-defendants and the answer lies in the series of pronouncements of various High Courts and also of the Hon’ble Apex Court in a recent case of Sanjay Tiwari v. Yugal Kishore Prasad Sao and others AIR 2025 SCC 5576 . In that case, plaintiff had filed a suit for a specific performance against defendant No.1 and subsequently impleaded defendants No. 2 and 3, filed a counter- claim against defendant No.1, along with their written statement. The apex Court held that counter-claim against co-defendant cannot survive and same has to be rejected. Apparently, counter-claim in that case was specifically directed against co-defendant, but in the case at hand, the counter-claim, though directly against the plaintiffs of the civil suit, has combative effects and repercussions on the rights, title and interests of the co-defendants. Or if said in more straight terms, the decree passed by the Civil Judge had actually adversely affected the recorded ownership of co-defendants. Findings of Apex Court in aforesaid case and also in the case of Rajul Manoj Shah @ Rajeshwari Rasiklal Sheth v. Kiran Bhai Shakra Bhai Patel and another AIR 2025 SCC 4284 have left no room for doubt that a counter-claim with an intent to claim direct relief against co-defendants is not permissible in law. 6. In this settled legal proposition that a counter-claim cannot decide Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55 NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 5 MA-1001-2012 the rights and liabilities between co-defendants, it is observed, that the trial Court should not have allowed defendant No.8 (appellant) to maintain his counter-claim as against the co-defendants and only an independent civil suit was the remedy to litigate rights under the alleged will qua rest of the defendants. It is an admitted position that an application to amend their written statement in the light of this counter-claim was also denied to the contesting co-defendants. It is grim violation of principles of natural justice that a decree is being passed against a co-defendant without giving him any opportunity to make necessary pleadings in his written statements. Under Order 41 rule 33 CPC, the appellate Court has vast power to redeem a party from any such injustice even where the questioned order, violating his legal rights, was not challenged by the party during the course of trial. 7. This Court in present appeal is exercising jurisdiction under the scope and ambit of Order 43 CPC and its Rule 2, makes all the rules of Order 41 CPC applicable to an appeal filed under Order 43 CPC as well. Thus, this Court endowed with the power of a Court of regular appeal, provided under order 41 Rule 33 CPC holds that trial of counter-claim deserves afresh hearing on its maintainability. In the face of the fact that the question of maintainability was illegally ignored, this Court is not inclined to examine the merits of the case argued here on the legitimacy and propriety of the remand order. 8. In terms of aforesaid discussion, this Court directs the trial Court to first examine whether the counter-claim filed by defendant No.8 (appellant) is maintainable against co-defendants and if not decide the Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55 NEUTRAL CITATION NO. 2026:MPHC-JBP:24945 6 MA-1001-2012 counter-claim accordingly. 9. Appeal is accordingly disposed of. 10. Let the copy of this order along with the record of Courts below be sent back to the concerned Court for necessary compliance. (ANURADHA SHUKLA) JUDGE DevS Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 26-03-2026 19:03:55</div>