Smt. Chandra Devi vs Dead Smt. Munni Devi W/O Late Shri ...
2021 Latest Caselaw 8089 MP

                                        1
                 HIGH COURT OF MADHYA PRADESH,
                          BENCH AT GWALIOR
                                SA-845-2018
    (Smt. Chanda Devi Vs. Dead Smt. Munni Devi W/o Late Shri
         Shwamisharan Dangi Thr. LRs Lokendra Singh Dangi)

Gwalior, Dated : 02/12/2021

         Shri Pratip Visoriya, learned counsel for the appellant.

         Shri Ravi Shankar Gupta, learned counsel for respondents No.1

and 2.

This second appeal under Section 100 of the Code of Civil

Procedure (hereinafter referred to as "CPC") has been directed against

the judgment and decree dated 25/06/2015 passed by Civil Judge

Class-I, District- Datia (M.P.) in Civil Suit No.11-A/2012, whereby

suit filed by the respondents (plaintiffs) for declaration, possession

and permanent injunction has been decreed and judgment and decree

dated 15/02/2018 passed by the District Judge, Datia (M.P.), whereby

the appeal filed by the appellants (defendants) has been dismissed

respectively.

The brief facts giving rise to filing of this second appeal are that

respondents/plaintiff filed a civil suit against the appellants/defendants

for declaration, permanent injunction and possession stating inter alia

that disputed plot was purchased by Late Shri Swami Sharan Dangi

who was the husband of deceased plaintiff No.1 and father of the

remaining plaintiffs through registered sale deed. In his lifetime, he

got the disputed property/plot demarcated and his name was mutated

in the revenue record.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-845-2018 (Smt. Chanda Devi Vs. Dead Smt. Munni Devi W/o Late Shri Shwamisharan Dangi Thr. LRs Lokendra Singh Dangi)

Defendant No.1- Mithla Dangi executed the sale deed of her

plot in favour of defendant No.2 by wrongly including the disputed

property in it only to grab the disputed property. During pendency of

the suit, defendants encroached upon the disputed property whereupon

plaintiffs lodged the report in police station and amended their suit

seeking relief of possession. The defendants have got no right over the

disputed property. The appellants are entitled for decree of declaration

of title, possession and permanent injunction.

The respondents/defendants resisted the suit and claimed that

disputed property is a joint family property which was purchased by

the nucleus of the joint family. Elder brother of Late Swami Sharan

Dangi and the husband of defendant No.1- Mithla Dangi namely-

Ramswaroop Dangi, Sub-Inspector of Police constructed the rooms

over the disputed property/plot who received the disputed

property/plot in family settlement and partition. Defendants are in

continuous possession over the disputed plot since the year 1996. The

plaintiffs have filed civil suit without any legal basis which deserves

to be dismissed.

Learned trial Court decreed the suit of the plaintiffs. The first

appeal field by the defendants came to be dismissed. Being aggrieved

of the above orders, this second appeal has been filed.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-845-2018 (Smt. Chanda Devi Vs. Dead Smt. Munni Devi W/o Late Shri Shwamisharan Dangi Thr. LRs Lokendra Singh Dangi)

Heard learned counsel for both the sides and perused the record

available on record.

Learned counsel for the appellant while reiterating the

pleadings and evidence, contended that the defendants are in

possession of the disputed property since the year of 1996. In such a

situation, plaintiffs were required to bring the suit for possession but

they designedly amended the suit in between. Learned trial Court has

erred in granting relief of possession without any court fees and this

aspect was also not considered by the First Appellate Court. The

plaintiffs have failed to establish title over the disputed plot whereas

by the oral and documentary evidence, it is well proved that disputed

property belongs to the defendants. Both the Courts below have failed

to appreciate the evidence available on record in proper perspective.

Substantial questions of law related to the rights of the defendants

over the disputed property are involved in this appeal which deserves

to be admitted and allowed.

Per contra, learned counsel for the respondents has submitted

that this is a case of concurrent findings of both the Courts below. The

disputed plot was purchased by the husband of the deceased/plaintiff-

Munni Devi by registered sale deed. Ample oral and documentary

evidence has been produced by the plaintiffs which clearly establish

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-845-2018 (Smt. Chanda Devi Vs. Dead Smt. Munni Devi W/o Late Shri Shwamisharan Dangi Thr. LRs Lokendra Singh Dangi)

their title over the disputed property. The defendants have forcefully

encroached upon the property during pendency of the suit. The

judgments of both the Courts below do not call for any interference

and no substantial question of law is involved in the matter. The

appeal deserves to be dismissed.

Having heard learned counsel for both the sides and on perusal

of the record, it is found that disputed property was purchased by the

husband of the deceased/plaintiff through registered sale deed. His

name was also mutated in the revenue record. In civil suit filed by him

against some other persons was decreed and permanent injunction was

granted in his favour.

The appellants/defendants have come out with the case that the

disputed property was purchased by the joint family nucleus and they

received the property in family settlement but no document

whatsoever regarding alleged family settlement or partition has been

filed by the defendants. The registered sale deed in favour of the

plaintiffs has also not been cancelled. Thus, both the Courts below

have rightly declared the title of the plaintiffs over the disputed

property.

It has been vehemently contended by the appellants that

plaintiffs were required to bring the suit for possession but it has been

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR SA-845-2018 (Smt. Chanda Devi Vs. Dead Smt. Munni Devi W/o Late Shri Shwamisharan Dangi Thr. LRs Lokendra Singh Dangi)

found proved by the oral and documentary evidence available on

record that the defendants encroached upon the disputed property

during the pendency of the suit. In such a situation, the plaintiffs had

no option but to amend their plaint with regard to subsequent event of

encroachment by defendants. In that event, plaintiffs were entitled for

relief of possession without paying any additional court fees, thus,

learned Courts below have not committed any illegality on this count

also.

In view of the above, it is found that both the Courts below have

rightly dealt with all the contentions of the defendants in detail. The

judgments impugned do not call for any interference and do not give

rise to any substantial question of law.

Consequently, there is no substance in the appeal, the same is,

therefore, dismissed.

(SATISH KUMAR SHARMA) JUDGE rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D159B55575E814D0 5B2EED, cn=RAHUL SINGH PARIHAR Date: 2021.12.06 20:05:38 +05'30'