Madhya Pradesh High Court

Sheikh Mohammad Ajad vs Vishal Chouradiya on 6 April, 2022

Author: Anjuli Palo

                               1




           IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                         BEFORE
             HON'BLE SMT. JUSTICE ANJULI PALO
                  ON THE 6th OF APRIL, 2022
                SECOND APPEAL No. 226 of 2021

     Between:-
     SHEIKH MOHAMMAD AJAD
     S/O SHEIKH MOHD. SAFI,
      AGED ABOUT 40 YEARS,
      WARD NO. 7 BAIHAR ROAD
     BALAGHAT TEH. AND
     DISTT. BALAGHAT
     (MADHYA PRADESH)
                                           .....APPELLANT
     (BY SHRI SANJAY SHARMA, ADVOCATE)

     AND

     VISHAL CHOURADIYA
1.
     S/O SHRI KOMALCHAND CHOURADIYA,
     AGED ABOUT 23 YEARS,
     WARD NO. 20 PURANA RAM MANDIR
     KE PASS BALAGHAT
     TEH. AND DISTT.
     BALAGHAT (MADHYA PRADESH)

     SMT. CHANDABAI CHOURADIYA
2.
     W/O KOMALCHAND CHOURADIYA ,
     AGED ABOUT 53 YEARS,
     WARD NO. 20 PURANA RAM MANDIR
     KE PASS BALAGHAT
     (MADHYA PRADESH)
                                         .....RESPONDENTS
                                    2




This appeal coming on for admission this day, the court passed the

following:


                           JUDGMENT

This second appeal has been filed under Section 100 of

the Code of Civil Procedure by the appellants/defendant being

aggrieved by the judgment and decree dated 06.02.2021 passed by

learned second Additional District Judge, Waraseoni, district -

Balaghat in Regular Civil Appeal No.116-/2015 whereby the

judgment and decree dated 06.08.2014 passed by learned first Civil

Judge, Waraseoni, district- Balaghat in Civil Suit No.22-A/2014

has been affirmed and the appeal preferred by the appellant

/defendant has been dismissed.

2. The respondents/plaintiffs filed the suit for permanent

injunction and mandatory injunction against the

appellant/defendant on the grounds that Komalchand who was the

father of respondent No.1 and husband of respondent No.2, had

purchased the disputed land from one Hakikat Rai vide registered

sale deed dated 23.03.1998. Komalchand died on 01.04.2000. Prior

to the year 2013, the disputed land was in possession of the

plaintiffs but on 04.01.2013, the defendant/appellant came to the

spot along with 20-25 other persons and started construction over

the suit land. Hence, the plaintiffs filed the suit as mentioned

aforesaid.

3. The appellant/defendant by filing the written statement

denied the averments made in the plaint. He stated that the suit

land is purchased by him from one B.V. Shrinivasan vide

registered sale deed dated 22.09.2011 and he is in valid possession

of the same. It is stated in the written statement that in revenue

map, less area has been shown.

4. The trial Court decreed the suit filed by the plaintiffs

which has been affirmed by the impugned judgment and decree

passed by the lower appellate Court as mentioned above.

5. Learned counsel for the appellant submitted mandatory

injunction has been granted on the basis of only pleadings without

being proved by adducing the additional evidence. The plaintiffs

themselves stated that the defendant is constructing boundary

wall and gate and over the disputed land hence, it is clear that the

appellant/defendant was in possession of the suit land on the date

of filing of the suit. As the plaintiffs were not in possession of the

suit land, decree of permanent injunction could not have been

granted.

6. Heard learned counsel for the parties and perused the

record. The Court below from perusal of Exhibit D-4 found that

the defendant undertook the proceeding of correction of the map

behind the back of the plaintiffs. The Court below found that

reports contained in Exhibits D-1 and D-2 are contradictory to

each other and are not binding on the plaintiffs. It is also held that

in demarcation, it is not mentioned that the plaintiffs are in

possession of any extra land. It is held by the lower appellate

Court that the land of the plaintiffs is in West side of the road

whereas the land belong to the defendant is in the West side of the

road and boundaries of both the lands do not meet anywhere.

Hence, there is no dispute of boundaries between the parties

requiring demarcation.

7. So far as contention of the appellant that the appellant

was in possession of the land in question at the time of filing of the

suit, is concerned, in this context, the Court below has held that the

land in question was in possession of the plaintiffs till 31.12.2012.

On 04.01.2013, the defendant came there and started construction

of boundary walls without any notice or permission from the

plaintiffs. Hence, it cannot be said that the appellant/defendant was

in possession of the land in question but, in fact, he encroached

upon the land of the plaintiffs. The Court below has rightly held

that the possession must be permanent and the defendant was an

encroacher on the land of the plaintiffs.

8. Hon'ble the Supreme Court in the case of Ravi Setia v.

Madan Lal and Others, (2019) 9 SCC 381 has held that

interference and reappreciation of the evidence in an appeal under

Section 100 of the Code of Civil Procedure is permissible only

where findings are perverse i.e. based on complete misappreciation

or erroneous consideration of evidence or where there is failure to

consider relevant evidence, as the same becomes question of law.

[See also: Damodar Lal v. Sohan Devi and Others, (2016) 3 SCC

78]

9. In this context it is apt to refer to refer to the decision

rendered in the case of Naresh and Others v. Hemant and Others,

2019 SCC Online SC 1490 wherein it has been observed by

Hon'ble the Supreme Court as follows:

"81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case, the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention."

10. In this context, it is appropriate to refer to the decision in the case of Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676 wherein Hon'ble the Supreme Court in paragraph 32 has held as follows:

"32. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."

From perusal of the judgments passed by the trial Court as well as Lower Appellate Court, it is apparently clear that no substantial question of law arises for consideration in this appeal.

11. The findings recorded by the Courts below are based

on proper appreciation of the evidence available on record. The

same cannot be termed as perverse or illegal warranting

interference by this Court in exercise of power under Section 100

of the Code of Civil Procedure.