Raju vs Suresh
2021 Latest Caselaw 3340 MP

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          HIGH COURT OF MADHYA PRADESH : JABALPUR
               (Before Hon'ble Smt. Justice Anjuli Palo)
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                      Second Appeal No. 753/2020
                          (Raju -Vs- Suresh)

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                  Shri K.S. Rajput, counsel for the appellant.
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                             JUDGMENT

(15/07/2021)

1. This second appeal under Section 100 of the Code of Civil

Procedure has been filed by the appellant/defendant being aggrieved by

the judgment and decree dated 27.1.2020 passed by District Judge, Harda

in RCA No. 62/2019 whereby the appeal filed by the appellant/defendant

against the judgment and decree dated 15.10.2019 passed by First Civil

Judge Class II, Harda in Civil Suit No. 40A/2018 has been dismissed.

2. Succinctly stated facts of the case are that, the appellant/defendant

and plaintiff/respondent are real brothers. The plaintiff/respondent

purchased a suit land bearing Khasra No. 228/1 from one Basant Rao

vide registered sale-deed dated 8.6.1981 on which he constructed two

rooms and one Dhaalia. The plaintiff/respondent owned another house at

Joshi Colony, Harda where he was residing with his family and he was

willing to give the suit house on rent. The defendant/appellant was not

having any house to reside therefore, he requested the plaintiff/respondent

to give the suit house to him to reside on the condition that whenever the

plaintiff/respondent would ask, he would vacate the same. Since the

appellant/defendant was the real brother of the plaintiff/respondent,

therefore, he gave the suit house to him to reside on 1.5.1995 in good

faith. Because there was no bonafide need of the plaintiff/respondent of

the suit house, therefore, he did not ask the appellant/defendant to vacate

the same for quite a long time. However, at the time of marriage of his son,

the plaintiff/respondent asked the appellant/defendant to vacate the suit

house but he not only refused but threatened him for life. Thereafter, the

plaintiff/respondent sent a legal notice to the appellant/defendant on

12.2.2018 through registered post. In the reply, the appellant/defendant

refused to vacate the suit house, therefore, plaintiff/respondent filed a suit

for possession and compensation of Rs. 10,000/- per month from the date

of judgment.

3. The appellant/defendant in his written statement stated that the suit

property was purchased by their father in the name of the plaintiff on

8.6.1981 from his own earning and it was orally said that all brothers and

sisters would have equal right in the said property. The plaintiff/respondent

is residing separately in a luxury house along with his family, mother and

legal heirs of his late brother. The plaintiff, subdued by greed, presented

the suit on false grounds in which his mother, sisters and the heirs of the

deceased brother were not made parties. It is further stated that the

appellant/defendant is in possession from the date of purchase of the plot

and after the purchase of the said land by the defendant, he has got the

construction work done with the help of his deceased brother. The plaintiff

is residing separately since his marriage and the plaintiff is claiming need

of the suit property to fulfill the need of the marriage of his son.

4. Learned trial Court after appreciating the evidence available on

record arrived at the conclusion that that the plaintiff has been successful

in proving his suit, the plaintiff has been successful in proving that he is the

owner of the suit property. The plaintiff has the right to obtain possession

from the defendant but the plaintiff has failed to prove that he is entitled to

receive the amount of compensation from the defendant. Learned

appellate Court has confirmed the judgment passed by the trial Court and

dismissed the appeal filed by the appellant/defendant.

5. This second appeal has been filed by the appellant/defendant

claiming that the learned trial Court has wrongly allowed the suit filed by

the plaintiff/respondent and declared him as owner of the suit property. It is

further contended that the learned trial Court has illegally passed a decree

for possession in favour of the respondent on the basis of the registered

sale-deed Ex.P-1. The appellant/defendant has also challenged the

judgment and decree dated 27.1.2020 passed by District Judge, Harda in

RCA No. 62/2019 whereby the judgment and decree passed by the trial

Court has been affirmed.

6. I have heard learned counsel for the appellant and gone through the

judgments passed by the Courts below and other material available on

record. It is not in dispute that the appellant and the respondent are real

brothers. It is also not in dispute that the sale-deed Ex. P-1 was executed

in the name of the plaintiff/respondent and the appellant is in possession of

the suit property as licensee of the respondent.

7. There are concurrent findings of both the Courts below in favour of

the plaintiff/respondent. After proper appreciation of evidence available on

record, both the Courts below arrived at the conclusion that the suit

property was not a joint property nor it was purchased by the father of the

plaintiff and the defendant for the use of entire family. There are sufficient

evidence available on record that the possession of the suit property was

received by the appellant/defendant from the plaintiff/respondent as

licensee. The plaintiff/respondent is the owner, hence in my considered

opinion both the Courts below have rightly held that the plaintiff/respondent

is entitled to receive the vacant possession of the suit property from the

appellant/defendant for his own use, therefore, I do not find any illegality or

perversity in the findings recorded by both the Courts below. There is no

substantial question of law in this appeal for consideration as proposed by

the appellant in Page No. 8 of this appeal.

8. Resultantly, in the absence of any substantial question of law, this

second appeal is hereby dismissed at motion hearing stage. As a

consequence thereof I.A. No. 3588/2020 is also dismissed.

(Smt. Anjuli Palo) Judge

PB

Digitally signed by PRADYUMNA BARVE Date: 2021.07.16 18:02:00 +05'30'