Manisha vs Sunil
2022 Latest Caselaw 4576 MP

                             1
         IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                             BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA
                     ON THE 31st OF MARCH, 2022

                 SECOND APPEAL No. 1894 of 2021

     Between:-
1.   MANISHA W/O SUDHIR JAIN, AGED 49 YEARS,
     OCCUPATION:   HOUSEWIFE       ADDRESS :
     BANYAWADI, DHAR, DISTRICT - DHAR (MP)

2.   SUDHIR S/O MANSUKHLAL JAIN, AGED 58 YEARS,
     OCCUPATION: BUSINESS ADDRESS : BANYAWADI
     DHAR, DISTRICT - DHAR (MP)

                                                   .....APPELLANTS
     (BY SHRI MOHAN SHARMA, ADVOCATE )

     AND

1.   SUNIL S/O SHANTILAL JAIN,
     AGED 53 YEARS, PRESIDENT OSWAL JAIN SAMAJ,
     DHAR, R/O 181, KASHIBAG COLONY, DHAR,
     DISTRICT - DHAR (MP)

2.   PREMCHAND S/O KACHRULAL JAIN, AGED 63
     YEARS, VICE PRESIDENT,
     R/O 7, PRATAP MARG, MAJALI ALI. DHAR,
     DISTRICT - INDORE (MP)

3.   PAWAN S/O BABULAL MUTHA JAIN, AGED 61
     Y E A R S , OCCUPATION: SECRETARY     4/4,
     MAHAVEER MARG. DHAR, DISTRICT - DHAR (MP)

4.   VIJENDRA S/O BABULAL RUNWAL JAIN, AGED 59
     YEARS, TREASURE, R/O 24, PRATAP MARG.
     MAJHALI ALI,
     DISTRICT - DHAR (MP)

5.   PRAKASH S/O MOOLCHAND JAIN,
     AGED 53 YEARS, OCCUPATION: JOINT SECRETARY
     RANGVARSHA, MAHAVEER SAREE, BANYAWADI,
     DHAR,
     DISTRICT - DHAR (MP)

6.   BABULAL     PAGARIYA, AGED 73  YEARS,
     OCCUPATION: SARAKSHAK R/O HOLI TEKRA,
     KABIR MARG, DHAR,
     DISTRICT - DHAR (MP)

7.   ASHOK S/O BABULAL JAIN, AGED 60 YEARS,
     OCCUPATION: SARAKSHAK R/O HOLI TEKRA,
     KABIR MARG, DHAR DISTRICT - DHAR (MP)

8.   UMRAOMAL S/O GENDALAL CHANDALIYA, AGED
     80 YEARS, SARAKSHAK, R/O NEW JAYSHREE
     GARMENTS, 75, JAWAHAR MARG, DHAR
     DISTRICT - DHAR (MP)
                                        2
9.       PARASMAL S/O DHULCHAND JAIN, AGED 60
         YEARS, PRESIDENT OF TRUST R/O 183, MAHATMA
         GANDHI MARG, DHAR, DISTRICT - DHAR (MP)

10.      PARASMAL S/O RAJMAL JAIN, AGED 73 YEARS,
         SECRETARY OF TRUST, R/O 183, MAHATMA
         GANDHI MARG, DHAR, DISTRICT - DHAR (MP)

11.      STATE OF MADHYA PRADESH,
         THROUGH COLLECTOR, DHAR, DISTRICT - DHAR
         (MP)

12.      PRAKASHCHAND S/O MULCHAND JAIN, AGED 60
         YEAR S, BANYAWADI, DHAR DISTRICT - DHAR
         (MP)

13.      SUBHASHCHANDRA S/O BABULAL JAIN, AGED 45
         YEAR S, PIPLI BAZAR, DHAR DISTRICT - DHAR
         (MP)

                                                                    .....RESPONDENTS
         (NONE FOR THE RESPONDENTS )

       This appeal coming on for order this day, the court passed the following:
                                      ORDER

This second appeal has been filed by the appellants/plaintiffs under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC') against the judgment and decree dated 27.09.2021 passed by the Fourth Additional District Judge, Dhar in Regular Civil Appeal No.1300009/2016, whereby the first appeal has been dismissed by affirming the judgment and decree dated 09.03.2016 passed by Fourth Civil Judge, Class-2, Dhar in Civil Suit No.20-A/2013 filed by the appellants/plaintiffs.

The facts of the case in brief are that the appellants/plaintiffs had filed a civil suit for mandatory and permanent injunction for removal and obstruction of a wall and iron gate fixed upon 20 feet wide road situated in front of Plot No.14, Part of House No.80, Kalika Marg, Ward No.21, Dhar (hereinafter referred to as a suit property). The suit property was purchased by the appellants/plaintiffs by a registered sale deed dated 31.03.2010 (Ex.P/2) and in front of the suit property towards the western side, there is an existence of 20 feet wide road which is apparently mentioned in the sale deed also. The plaintiffs had annexed a Map demonstrating the situation of existing road and other plots which has also been admitted by the respondents/defendants. The respondents/defendants had illegally encroached 07 feet area of the road towards the western side of the suit property

due to which right of passage of plaintiffs are adversely affected. The defendants had raised the construction of wall which is 05 feet in height and 07 feet in width coming exactly in front of the suit property because of which the front of the plot has been reduced.

The defendants No.2 to 6, 8, 9, 12, 14 and 15 have submitted their written statement before the trial Court by stating that the alleged construction of wall of 05 feet in front of the suit property of plaintiffs has not been constructed by them.

Based upon the aforesaid pleading, the trial Court has framed the issues and based upon the same, the parties have led their evidence to prove their case. The

trial Court has held that the appellants/plaintiffs had not filed any Map which was duly approved by the Department of Town and Country Planning, Nagar Palika Parishad or any other legal authority and, therefore, it is established that the defendants have not encroached the suit property of the plaintiffs. Hence, on the basis of the above, the suit was dismissed by the trial Court.

Being aggrieved by the said judgment and decree, the appellants/plaintiffs had preferred an appeal before the first appellate Court and the first appellate Court based upon the re-appreciation of entire evidence available on record has affirmed the finding of facts recorded by the learned trial Court.

Learned counsel for the appellants/plaintiffs contended that the judgment and decree passed by both the Courts below are illegal and not based upon proper appreciation of facts. Both the Courts had failed to consider the oral and documentary evidence produced by the parties. It is also argued that the trial Court has erred in dismissing the suit preferred by the appellants/plaintiffs. Both the Courts below had erred in ignoring the pleadings made by the parties and therefore the findings of both the Courts below are perverse and illegal which is also against the evidence available on record and the settled position of law. The learned trial Court has not considered that the onus of proof has been shifted upon the defendants that their construction has not obstructed the passage of plaintiffs and the same is not coming in front of the suit property. The learned trial Court has erred in believing the photographs Ex. D/1 to Ex.D/3. Thus, in light of the aforesaid, he submits that the present second appeal be allowed in his favour.

I have gone through the judgment and decree passed by both the Courts

below and have also perused the entire records of the case.

It is contended by counsel for the appellants/plaintiffs that the appellants had purchased the suit property along with disputed passage through registered sale deed dated 31.03.2010, Ex.P/2. On perusal of the registered sale deed (Ex.P/2), it appears that the appellants/plaintiffs had purchased only 1160 square feet of land through the registered sale deed and 20 feet wide road which is situated in the western side of the suit property is not the part of suit property which was purchased by the appellants/plaintiffs.

It is also relevant to mention here that the appellants/plaintiffs had not produced any approved map sanctioned by the Town and Country Planning Department, Nagar Palika Parishad or any other Competent Authority. Even the appellants had not produced the approved layout of concerned area and therefore adverse influence can be drawn against the appellants/plaintiffs for not adducing the relevant documentary evidence in support of his case. The appellants had furnished only a Map, Ex.P/1 which is just a hand made rough map which was not approved by any competent authority and therefore it cannot be considered as an approved Map. It is also important to state here that during the pendency of civil suit, the respondents/defendants have filed an application under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure, 1908, for local spot inspection and appointment of a Commissioner for submitting the report about the said encroachment, but at that time the appellants/plaintiffs had opposed the same application and after hearing both the parties, the trial Court had rejected the said application vide order dated 14.03.2014. The defendants No.14 and 15 had again filed repeated application under Order 26 Rule 9 of CPC before the trial Court, which was marked as IA No.04/2015 and in the trial Court, the appellants had again opposed the same application and therefore the trial Court had rejected the application vide order dated 03.12.2015.

Learned counsel for the appellants/plaintiffs has relied upon the judgments of Coordinate Bench of this Court in the case of Anurag Jaiswal vs. Collector, Khandwa and Others reported in 2019(2) MPLJ Page 637 and Prembai vs. Ghanshyam and Others reported in 2010(3) MPLJ Page 345 to bolster his

submission. In both the cases, it has been held if the acts of encroachment is done, then spot inspection is necessary and it will also be appropriate to appoint a Commissioner in such a situation, but in the present case, the appellants himself has opposed the application twice in respect of spot inspection as well as for appointment of Commissioner for such purposes, therefore in view of the appellants previous conduct, at this stage, the appellants are not entitled for such facilities of spot inspection or appointment of Commissioner

In the light of the aforesaid discussion, this Court is of the considered view that the judgment and decree passed by both the courts below are well reasoned and are based on due appreciation of oral as well as documentary evidence available on record. The findings recorded by the courts below are concurrent findings of fact.

Learned counsel for the appellants has failed to show that how the findings of fact recorded by the courts below are illegal, perverse or based upon no evidence. Thus, no substantial question of law arises for consideration in the present second appeal.

The Supreme court in number of cases has held that in exercise of powers under section 100 of the Code of Civil Procedure the Court can interfere with the findings of fact only if the same is shown to be perverse and based upon no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul Majeed and others , 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8) SCC 148 and Vishwanath Agrawal Vs. Sarla Vishwanath Agralwal 2912(7) SCC

288.

For the aforesaid reasons, no substantial questions of law arises for consideration in this appeal. The appeal fails and is hereby dismissed in-limine.

Certified copy as per Rules.

(ANIL VERMA) JUDGE Arun/-

ARUN NAIR 2022.04.05 11:00:21 +05'30'