Angal vs Smt. Shantidevi
2021 Latest Caselaw 214 MP

                                1
                                             S.A. No. 1159/2019
                          (Angat Vs. Smt. Shantidevi and others)

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

                          SINGLE BENCH:


                  Second Appeal No. 1159/2019
                              Angat
                               Vs.
                     Smt. Shantidevi & others
                     ********************
CORAM

         Hon. Shri Justice Rajeev Kumar Shrivastava

                     ********************
Appearance

      Shri Arvind Dudawat and Shri Arun Dudawat, learned
counsel for the appellant.
      Shri Dheeraj Budholiya, learned Panel Lawyer for
respondent No.10/State.
                     ********************
Whether approved for reporting :

                     ********************
Reserved on : 22/02/2021


                       JUDGMENT

(Passed on 25/02/2021)

This second appeal is preferred under Section 100 of the

CPC against the judgment and decree dated 21/02/2019 passed by

Second Additional District Judge, Karera, Distt. Shivpuri (M.P.) in

Regular Civil Appeal No.96-A/2017, whereby the judgment and

S.A. No. 1159/2019 (Angat Vs. Smt. Shantidevi and others)

decree dated 20/02/2016 passed by Additional Civil Judge Class-I,

Karera, Distt. Shivpuri (M.P.) in Civil Suit No.34A/2013 has been

affirmed.

2. Learned counsel for the appellant has submitted that the

plaintiffs have filed civil suit for declaration, permanent injunction

and restoration of possession as the defendants had taken

possession during the pendency of suit by saying that they are the

exclusive owner of land bearing survey No. 1270/2 admeasuring

0.05 hectare, 1271/2 admeasuring 0.10 hectare, 1272/2

admeasuring 0.25 heactare, 1276 admeasuring 0.21 hectare and

1332/2 admeasuring 0.04 hectare, total rakva - 5 and total area is

0.65 hectare, situated at Village Nizaampur, Tahsil Narwar, Distt.

Shivpuri. Plaintiffs purchased the aforesaid land by its earlier

owner Peer Khan, Sannu Khan and Jumma Khan by registered

sale deed dated 01.02.1985 (Exhibit- P/9). Since then, they are in

possession and their names have also been mutated in revenue

record. Defendant No.8 on the basis of aforesaid sale deed,

purchased the land bearing survey No.1270/2 admeasuring 162 sq.

meters and 1271/1 admeasuring 193 sq. meters, total 1250 sq.

meters on 28/10/1998 and claiming ownership over the aforesaid

land. Defendant No.8 has constructed house over the aforesaid

land and Civil Suit filed by defendant No.8 for declaration and

permanent injunction bearing No.41A/2009 was dismissed on

26/09/2011. On 19/08/2009, defendants started construction of

S.A. No. 1159/2019 (Angat Vs. Smt. Shantidevi and others)

house over the land belonging to the plaintiffs forcefully, hence

the suit was filed. The trial Court dismissed the civil suit holding

that the plaintiffs have failed to establish their valid title of

possession over the land under dispute. First Appellate Court

affirmed the judgment and decree passed by the trial Court.

3. Learned counsel for the appellant has specifically submitted

that construction made by him is over the land bearing survey No.

1271/1, which is not a disputed land as is clear from documents

exhibit D-10 & D-16. Despite that the trial Court as well as First

Appellate Court have erred in passing the impugned judgment and

decree. Learned counsel for the appellant has relied upon the

decision rendered by Hon'ble Supreme Court in the case of Rohini

Prasad and others Vs. Kasturchand and another [(2000) 3

SCC 668]. Hence, learned counsel for the appellant has prayed to

admit this second appeal.

4. Learned Panel Lawyer for respondent No.10/State has

vehemently opposed the submissions made by learned counsel for

the appellant and has submitted that there is no merit in this

second appeal. Hence, prayed to reject the appeal.

5. Heard learned counsel for the rival parties and perused the

available record.

6. Section 100 CPC reads as under:-

"100.Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from

S.A. No. 1159/2019 (Angat Vs. Smt. Shantidevi and others)

every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

7. On perusal of record, it is evident that there is concurrent

finding of trial Court as well as First Appellate Court. The trial

Court has passed the judgment and decree as under:-

"46& okniz'u Øekad 15 lgk;rk ,oa O;;%& oknhx.k dk nkok izfroknhx.k ds fo:) izekf.kr gksus ls fuEu vk'k; dh vkKfIr ikfjr dh tkrh gS%& 1- oknhx.k eqUuhckbZ iRuh gjhflag ,oa 'kkafrnsoh iRuh ljeu flag xqtZj [email protected] ds jdck 0-050 gSDV-] [email protected] ds jdck 0-100 gSDV-] [email protected] dk jdck 0-250 gSDV-] [email protected] dk jdck 0-210 gSDV-] [email protected] dk jdck 0-040 gSDV- dqy fdrk 5 dqy jdck 0- 76 gSDV- fLFkr xzke futkeiqj rglhy ujoj ftyk f'koiqjh ds oknhx.k Lokeh gSaA 2- izfroknh Øekad&8 izrki flag iq= dEeksn flag }kjk dz; fd;s x;s losZ uacj& [email protected] dk fodz; i= fnukad&28-10-1998 'kwU; ?kksf"kr fd;k tkrk gSA 3- oknhx.k ds LokfeRo dh Hkwfe losZ uacj&

S.A. No. 1159/2019 (Angat Vs. Smt. Shantidevi and others)

[email protected] ,oa [email protected] ij izfroknhx.k }kjk fuEukuqlkj fd;k x;k fuekZ.k voS/k gksdj vfrdze.k gSA v- izfroknh gkfde flag iq= rqylhjke] taMsy iq= gkfde flag] egkohj iq= gkfde flag }kjk losZ uacj [email protected] ds jdok 141 oxZ ehVj HkwfeHkkx ij [k.Mksa dh nhoky cukdj fd;k x;k voS/k fuekZ.k vfrdze.k gSA c- izfroknh vaxn iq= [kydwjke c?ksy }kjk losZ uacj [email protected] ds jdok 162 oxZ ehVj Hkwfe ij [k.Mksa dh nhoky cukdj fd;k x;k voS/k fuekZ.k vfrdze.k gSA l- izfroknh vaxn iq= [kydwjke c?ksy }kjk losZ uacj& [email protected] ds Hkwfe Hkkx 193 oxZ ehVj [k.Mksa dh bZaVksa dh nhoky ckmaMªh ckWy ds vanj dejs ,oa >ksaiM+h cukdj fd;k x;k voS/k fuekZ.k vfrdze.k gSA n- izfroknh txnh'k iq= dk'khjke c?ksy }kjk losZ uacj [email protected] ds HkwfeHkkx 195 oxZ ehVj ij bZVksa dh nhoky ckmaMªh ckWy ,oa nks >ksifM+;ka cukdj fd;k x;k voS/k fuekZ.k vfrdze.k gSA 4- oknhx.k mijksDr voS/k fuekZ.k gVkdj fjDr dCtk izfroknhx.k ls izkIr djus ds vf/kdkjh gSA 5- izfroknhx.k }kjk fd;k x;k voS/k fuekZ.k rhu ekg dh vof/k esa fjDr dj oknhx.k dks dCtk lkSaik tkosA 6- izfroknhx.k dks oknhx.k ds LoRo dh Hkwfe;ksa ij gLr{ksi djus ls fu"ksf/kr fd;k tkrk gSA 7- izdj.k dh ifjfLFkfr;ksa dks ns[krs gq;s mHk;i{k viuk&viuk okn O;; ogu djsaxsA 8- vf/koDrk 'kqYd fu;ekuqlkj izekf.kr gksus ij fu;e 523 O;ogkj U;k;ky; fu;e ,oa vkns'k ds vuqlkj [kpsZ esa tksM+k tkosA"

8. The First Appellate Court passed the judgment and decree

holding as under:-

"34& Qyr% vihykFkhZx.k dh vksj ls xzke futkeiqj rglhy ujoj] ftyk f'koiqjh e/;izns'k esa fLFkr d`f"k Hkwfe loZs uEcj&[email protected] jdck 0-05 gsDVj] loZs

S.A. No. 1159/2019 (Angat Vs. Smt. Shantidevi and others)

uEcj&[email protected] jdck 0-10 gsDVj] loZs uEcj&[email protected] jdck 0-25 gsDVj] loZs uEcj&1276 jdck 0-21 gsDVj] ,oa loZs uEcj&[email protected] jdck 0-04 gsDVj dqy fdrk 5 dqy jdck 0-65 gsDVj ds laca/k esa izLrqr vihy fujLr dh tkrh gSA"

9. The First Appellate Court has affirmed the judgment and

decree passed by the trial Court and both the Courts below have

given a concurrent finding that as the construction is

encroachment, therefore no relief can be granted in favour of the

appellant. Furthermore, on perusal of concerned revenue record, it

is apparent that the appellant has not been shown to be the owner

of said land.

10. The Apex Court in Karnataka Board of Wakf Vs.

Anjuman-Eismail Madris-un-Niswan, (AIR 1999 SC 3067) has

observed that the High Court should not interfere with the

concurrent finding of fact in a routine and casual manner by

substituting its subjective satisfaction in place of lower Courts.

11. In view of the aforesaid facts, this Court is of the view that

there is no substantial question of law involved in relation to the

findings given by both the Courts below. Accordingly, the second

appeal is dismissed being devoid of merits.

(Rajeev Kumar Shrivastava) Judge Shubhankar* SHUBHANKAR MISHRA 2021.02.25 16:46:13 +05'30'