Gouri Shankar vs Kamla Bai
2022 Latest Caselaw 6877 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                                  BEFORE
                      HON'BLE SMT. JUSTICE ANJULI PALO
                             ON THE 7th OF MAY, 2022

                     SECOND APPEAL No. 2712 of 2019

        Between:-
        GOURI SHANKAR S/O BADRINATH , AGED ABOUT
        50    YEARS, OCCUPATION:  AGRICULTURIST
        BHAISADEHI TAH. BHAISDEHI DISTT. BETUL
        (MADHYA PRADESH)

                                                                   .....APPELLANT
        (BY SHRI ANURAG SAHU, ADVOCATE)

        AND

        KAMLA BAI W/O AJABRAO SHINDEY, AGED
        ABOUT 55 YEARS, OCCUPATION: HOUSE WIFE, R/O
        BHAISDEHI TAH. BHAISADEHI DISTT. BETUL
        (M.P.), AT PRESENT POKHARANI, TAHSIL
        BHAISADEHI, BETUL (MADHYA PRADESH)

                                                                 .....RESPONDENT
        (BY SHRI SUSHIL KUMAR TIWARI, ADVOCATE)

      This appeal coming for admission as well as on I.A. No.12438/2019 and
7360/2021 this day, the court passed the following:
                                     ORDER

1 . This second appeal has been filed by the appellant/defendant being aggrieved by the impugned judgment and decree dated 20.08.2019 passed by Third Additional District Judge, Betul in Regular Civil Appeal No. 400054/2016, whereby the judgment and decree dated 03.03.2016 passed by the Civil Judge Class-I, Betul in Civil Suit No.04-A/2012 has been reversed.

2. The case of the respondent/plaintiff before the trial Court, in short, was that, house No.49 which situated on Mang Panji No.7 of Nagar Panchayat, Bhainsadehi, was purchased by the plaintiff from Kesau s/o Kachariya Kunbi through a registered sale deed dated 08.12.1995. Since then the plaintiff is in peaceful possession over the said house. Mutation was also made in favour of the plaintiff by Nagar Parishad, Bhainsadehi and he has been paying property tax regularly in respect thereof. The house was in dilapidated condition, therefore, the plaintiff evicted her tenant from the house a n d demolished the same. The boundaries of the house were that on north side there was land of Chighnya;

towards south side there is road about 8 feet wide, on the east side 3 feet of samat and adjacent to the house of Parasram Pandagare and towards west side there is land of Sarswati w/o Badrinath.

3. It is averred in the plaint that defendant/respondent - Gouri Shankar is son

of Badrinath. Defendant and his sister-in-law (bhabhi) made an application against plaintiff and her husband before the S.D.O., Bhainsadehi. The S.D.O. dismissed the same by holding that the parties are in possession of their properties. On 20.09.2009, the defendant forcefully encroached over the land of the plaintiff from western part of land admeasuring 738 square feet and started digging. Therefore, the plaintiff made a complaint against the defendant and on 01.10.2009 sent a notice to the defendant stating that he has raised illegal construction over her land. Thereafter, on 25.09.2009 a show cause notice has also been issued against the defendant by the Nagar Panchayat, Bhainsadehi directing to stop raising construction over the land, but the defendant did not comply with the same and continued to raise construction over the suit land. Being aggrieved by the conduct of the defendant, the plaintiff has filed suit for possession and permanent injunction against the defendant, claiming that she is the owner in possession of the suit property as she purchased it from Kesau by a registered sale deed dated 08.12.1995.

4. The defendant filed his written statement and denied the averments made in the plaint.

5. On the basis of pleadings of both the parties, the trial Court has framed issues, recorded the evidence of parties and dismissed the suit vide its judgment dated 03.03.2016.

6. Being aggrieved by the aforesaid judgment and decree of the trial Court dated 03.03.2016, the respondent/plaintiff has filed Regular Civil Appeal No.400054/2016 before the Third Additional District Judge, Betul, which has been allowed by the first appellate Court by reversing the findings recorded by trial Court.

7. Being aggrieved by the aforesaid reversal judgment and decree dated 20.08.2019, the appellant/defendant preferred the instant appeal on the grounds that

the lower appellate Court has erred in law while allowing the appeal of the respondent/plaintiff without properly appreciating oral and documentary evidence on record. It is also submitted that forefather of the defendant purchased the land in the year 1955 and since then they are residing there. It is also alleged by him that the lower Appellate Court failed to see whether the suit was filed after limitation without assigning any cause of delay. It further ought to have taken into consideration whether the plaintiff has duly proved the sale deed. The judgment and decree of the trial Court are just and proper and the lower Appellate Court ought not to have reversed the finding recorded by the trial Court. Therefore,

appellant prayed to set aside the impugned judgment and decree dated 20.08.2019 passed by the Third Additional District Judge, Betul in Regular Civil Appeal No. 400054/2016.

8. Learned counsel for the respondent/plaintiff has supported the findings recorded by the learned lower appellate Court and submitted that the impugned judgment is based on proper appreciation of facts and evidence available on record.

9. Heard learned counsel for the parties. Perused the record.

10. Although, the second appeal has been filed against the reversal findings given by the First Appellate Court, but after perusal of the record and findings recorded by First appellate Court, it is apparent that suit house bearing No.49, which is situated at Nagar Panchayat, Bainsadehi, Mahavir Ward, Betul, was registered in the name of Kesau s/o Kachariya Kunbi. The documents (Exhibits P/8 to P/10), which are property tax demand receipts in name of Kesau. Vide registered sale deed dated 08.12.1995 (Exh.P/1), Kesau sold out the same to plaintiff/respondent. The total area of plot is 738 square feet. Certificate issued by Nagar Panchayat, Bhainsadehi and tax receipts (Exh.P/2 and P/3) respectively also supported the plaintiff/respondent's case. Similarly, order has been passed by the S.D.O. in favour of the respondent/plaintiff's stating that she is in possession of her land. Thus, SDO'S orders dated 21.04.2003 to 01.05.2003 (Exh.P/4) do establish the respondent's claim. Testimony of Kamla Bai (PW/1) has also been corroborated by son of Kesau, namely, Madhu. All the witnesses stated that the respondent/plaintiff - Kamla Bai gave the suit house on rent to Baldev. Lanka

(PW/4) w/o Baldev has also supported the evidence of Kamlabai (PW/1) and Madhu (PW/2) also stated that she was residing in the house as tenant for sometime. Thereafter, as the house was in dilapidated condition, therefore, they left house.

11. As per the plaintiff evidence, when they started to reconstruct the house over the suit plot, the appellant/defendant obstructed and encroached the area of suit land, which is shown in suit map as "A, B, C & D". It appears from evidence of both the parties that the appellant's house Nos.50 & 51 are also adjoining to the suit land.

1 2 . Findings given by the lower appellate Court are based on proper appreciation of evidence available on record. The appellant/defendant has failed to establish that forefather of the defendant, namely, Dashrya purchased the house from Brijlal. Neither it was accepted by any of the respondent/plaintiff witnesses, nor it is proved from the evidence of appellant/defendant that Dashrya constructed the house over the encroached area.

13. Learned appellate Court below has recorded findings against the appellant/defendant after proper appreciation of evidence on record. After considering the entire evidence available on record and facts and circumstances of the case, this Court is of the opinion that no substantial question of law arises for consideration in this appeal. There is no perversity or illegality in the impugned judgment passed by the lower appellate Court. Hence, no interference is warranted. Accordingly, this appeal deserves to be and is hereby dismissed at admission stage.

(SMT. ANJULI PALO) JUDGE rj

Signature Not Verified SAN

Digitally signed by RAJESH KUMAR JYOTISHI Date: 2022.05.07 18:32:47 IST