Madhya Pradesh High Court
Ram Manorath vs Lalai Nai on 20 July, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 20th OF JULY, 2022
SECOND APPEAL No. 2987 of 2018
Between:-
RAM MANORATH S/O SHRI RAMANUGRAH
BRAHMAN, AGED ABOUT 72 YEARS, R/O
VILLAGE KHORVA KHAS TEHSIL SIHAWAL
DISTT. SIDHI (M.P.)
.....APPELLANT
(BY SHRI MRIGENDRA SINGH, SENIOR ADVOCATE WITH SHRI
SAURABH PATHAK, ADVOCATE)
AND
1. LALAI NAI S/O BALI NAI , AGED ABOUT 83
YEARS
2. MANARJUA W/O LATE RAMBHUWAN, AGED
ABOUT 63 YEARS
3. RAJESH S/O LATE RAMBHUWAN, AGED ABOUT
25 YEARS,
4. UMESH S/O LATE RAMBHUWAN, AGED ABOUT
23 YEARS
5. AKHILESH S/O LATE RAMBHUWAN, AGED
ABOUT 22 YEARS,
6. ARVIND S/O LATE RAMBHUWAN, AGED ABOUT
22 YEARS,
7. RAMCHARIT S/O RAMABHILASH, AGED ABOUT
71 YEARS,
8. BHUAR RAM S/O RAMABHILASH , AGED ABOUT
68 YEARS
ALL RESPONDENT NO.1 TO 8 ARE RESIDENT OF
Signature
SAN Not VILLAGE KHORVA KHAS TEHSIL SIHAWAL
Verified DISTT. SIDHI (M.P.)
Digitally signed by
KRISHAN KUMAR .....RESPONDENTS
CHOUKSEY
Date: 2022.07.21
17:21:16 IST
2
(SHRI J.L.SONI, ADVOCATE FOR RESPONDENT NO.1-PLAINTIFF)
This appeal coming on for this day, the court passed the following:
ORDER
Heard on I.A.No.15100/2018, which is an application for condonation of
delay of 483 days in filing the present second appeal. The condonation has
been sought on the ground of mistake of Advocate's office clerk Shri Jagesh
Patel, which is supported by his affidavit.
2. As there is no opposition to the said I.A. by filing reply or counter
affidavit, therefore, delay in filing the appeal deserves to be and is hereby
condoned and I.A.No.15100/2018 is allowed.
3. With the consent of learned counsel for the parties, matter is heard
on the question of admission.
4. This second appeal has been filed challenging the judgment and
decree dated 8.5.2017 passed by the District Judge, Sidhi in Civil Appeal
No.49-A/2015 affirming the judgment and decree dated 2.9.2015 passed by
First Civil Judge Class-I, Sidhi in Civil Suit No.35-A/2015 whereby the suit filed
only for permanent injunction has been decreed.
5. The facts in short are that the plaintiff/ respondent No.1 instituted a
suit simplicitor for permanent injunction with regard to agricultural land Survey
No.323 area 0.32 acre, 324 area 0.10 acre and 385 area 0.46 acre (New number
632 area 0.04 acre, 633 area 0.16 acre, 630 area 0.02 acre and 661 area 0.46
acre) situated in village Khorva Khas, Tahsil Sihawal, District Sidhi claiming
himself to be bhoomiswami and in possession of the land and sought relief of
permanent injunction against the defendants from making interference in
possession and use of the land.
6. Defendants appeared and filed written statement denying the plaint
allegations, however, they admitted ownership of plaintiff over the land Survey
No.323, 324 and 385 and vide para 5 of written statement raised some dispute
about his land of Survey No.629 saying that the plaintiff has got recorded 0.15
acre land in excess to the land of which plaintiff is bhoomiswami. On inter-alia
contentions defendants prayed for dismissal of the suit.
7. On the basis of pleadings raised by the parties, learned trial Court
framed as many as five issues and recorded evidence of both the parties and on
the basis of material available on record decreed the suit of the plaintiff and
granted decree of permanent injunction against the defendants with regard to
land in question. Upon filing appeal by one of the defendant namely
Rammanorath, the same has been dismissed by the District Judge vide its
judgment and decree dated 8.5.2017.
8. Learned counsel for the appellant submits that without taking into
consideration the defence taken by the defendants in para 5 and 9 of the written
statement learned Courts below have erred in granting decree of permanent
injunction in favour of the plaintiff/ respondent No.1. He further submits that
plaintiff/ respondent No.1 is bhoomiswami of the land only over an area 0.42
acre and by mistake of revenue officer an area 0.15 acre was recorded in the
name of plaintiff regarding which he is not entitled for any relief. Accordingly,
he prays for admission of this appeal.
9. Learned counsel for the respondent No.1/ plaintiff supports the
judgment and decree passed by the Courts below and submits that the finding
with regard to possession is pure finding of fact and is not liable to be interfered
in the second appeal and prays for dismissal of this second appeal.
10. Heard the learned counsel for the parties and perused the record.
11. Learned Courts below on the basis of admission of defendants
and on the basis of documentary evidence available on record held that the
plaintiff being owner/ bhoomiswami of the land in question is entitled for decree
of permanent injunction because he is in possession of the same.
12. As the plaintiff is owner of the disputed land and is also in
possession of the same, therefore, in my opinion, learned Courts below have
not committed any illegality in passing the decree of permanent injunction in
favour of the plaintiff.
13. However, it is observed that if there is any mistake committed by
any of the revenue officers at the time of Bandobast, the appellant/ defendant is
free to approach the revenue authority for correction of the revenue record.
14. With the aforesaid observation, this second appeal having no
involvement of substantial question of law deserves to be and is hereby
dismissed.
15. However, no order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
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