Madhya Pradesh High Court

Tarun Bhawsar vs Suresh Bhawsar on 19 May, 2022

Author: Anjuli Palo

                                               SA 1247 of 2021
                               1


        IN THE HIGH COURT OF MADHYA PRADESH


                       AT JABALPUR
                          BEFORE
              HON'BLE SMT. JUSTICE ANJULI PALO
                   ON THE 19th OF MAY, 2022

              SECOND APPEAL No. 1247 of 2021

  Between:-
1. TARUN BHAWSAR
   S/O SHYAMLAL BHAWSAR,
   AGED ABOUT 55 YEARS,
   OCCUPATION: SHOP KEEPER

2. GOURAV BHAWSAR S/O TARUN
   BHAWSAR, AGED ABOUT 30 YEARS,
   OCCUPATION: SHOP KEEPER

3. PIYUSH BHAWSAR S/O TARUN BHAWSAR,
   AGED ABOUT 28 YEARS,
   OCCUPATION: SHOP KEEPER

  ALL R/O KAHANAJANPUR
  BETUL TEH. AND DIST. BETUL
  MP (MADHYA PRADESH)
                                               .....APPELLANTS
  (BY SHRI SANJAY KUMAR AGRAWAL, ADVOCATE)

  AND

1. SURESH BHAWSAR S/O GORELAL
   BHAWSAR, AGED ABOUT 63 YEARS,

2. KIRAN BHAWSAR W/O SURESH BHAWSAR
   AGED ABOUT 59 YEARS

  BOTH R/O KALAPATHA BETUL
  TAHSIL AND DISTRICT- BETUL
  (MADHYA PRADESH)
                                              .....RESPONDENTS
  (BY SHRI SANJAY AGRAWAL, SENIOR COUNSEL ALONG WITH MR.
  SARANSH KULSHRESTHA AND MR. SHEERSH AGRAWAL, ADVOCATES
                                                          SA 1247 of 2021
                                      2


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

following:


                             JUDGMENT

In this second appeal preferred under Section 100 of the Code of Civil Procedure, the appellants/defendants have challenged the impugned judgment and decree dated 31.07.2021 passed in regular Civil Appeal No.400043/2016 passed by learned 1 st Additional District Judge, district - Betul arising out of the judgment and decree dated 18.03.2016 passed by the trial Court in Civil Suit No.01-A/2015.

2. The facts, in a nutshell, are that Gorelal and Shyamlal were real brothers. The appellant No.1 is the son of Shyamlal and appellants 2 and 3 are sons of the appellant No.1. The respondent/plaintiff No.1- Suresh Bhavsagar is son of late Gorelal and respondent No.2/ plaintiff No.2- Kiran Bhavsagar is daughter- in-law of said Gorelal. It is admitted facts that Shyamlal was the owner of plot No.109, Sheet No.7 situated at Kothibazar, Betul and vide registered sale deed Shayamlal sold an area admeasuring 2159 square feet of North-East of the aforesaid plot to Gorelal Bhavsagar in the year 1965. It is also admitted fact that Shaymlal Bhavsagar had sold a plot admeasuring 338 square feet along with the construction made on it vide registered sale deed dated 07.08.1979 to Gorelal. Gorelal was also given right to way on eight feet wide road. It is also an admitted fact that SA 1247 of 2021

plaintiffs/respondents are the owners and possession holders of the plot admeasuring 2496 square feet.

3. It is claimed by the respondents/plaintiffs that on the aforesaid property, they constructed four rooms in the year 1987-88 and they used the said rooms for the purpose of keeping the articles of his business. The plaintiffs rented out two shops in favour of Gaffur tailor and Climax tailor. The disputed room is situated at just above the shop of Gaffur tailor. It is claimed by the plaintiffs that in the night of 24.11.2013 when the plaintiffs had left for their home after closing the shop, the defendants/appellants entered the disputed shop by breaking wall of the room. The appellants had stolen the articles of the respondents/plaintiffs and installed an electronic camera there. The respondents/plaintiffs informed the police about the incident. With the interference of police, the appellants returned the stolen articles but did not vacate the room in question though he lost earlier civil suits against the respondents/plaintiffs. Hence, the respondents/plaintiffs filed the suit seeking the relief of possession and permanent injunction.

4. The appellants/defendants by filing the written statement denied the averments made in the plaint and stated that the construction on the entire plot was raised by Shyamlal and it is incorrect that plaintiffs have raised any construction over the shop of Gaffur tailor. It is emphatically stated that construction in question was made by the defendant.

SA 1247 of 2021

5. The trial Court vide judgment and decree dated 18.03.2016 dismissed the suit filed by the plaintiffs. On being preferred an appeal, the lower appellate Court vide impugned judgment and decree, reversed the decree passed by the trial Court and allowed the appeal in part preferred by the respondents/plaintiffs.

6. The lower appellate Court found that it is apparent from perusal of Exhibit P-6-C that it is not mention in the documents that the portion above the slab (roof) of the shops which were sold, would belong to the defendants. Hence, in view of Section 8 of the Transfer of Properties Act, 1882, the disputed property belongs to the plaintiffs and they are the owner of the same. The appellants failed to prove that the disputed rooms/shops were constructed by their father with the consent of the respondents. No right was given to the father of the appellants to construct the rooms over the properties owned by the respondents. The aforesaid findings are pure findings of facts which have been recorded by the Lower Appellate Court on proper analysis of evidence available on record. The same, by no stretch of imagination, can either be termed as perverse or based on no evidence.

7. 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 SA 1247 of 2021

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]

8. 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."

SA 1247 of 2021

9.. 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."

10. The findings recorded by the lower appellate Court 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.