Madhya Pradesh High Court
Kailash Narayan vs Anil Kumar on 23 September, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 23rd OF SEPTEMBER, 2022
SECOND APPEAL No.57 of 2015
Between:-
KAILASH NARAYAN S/O JWALA
PRASAD SHRIVASTAVA, AGED
ABOUT 71 YEARS, OCCUPATION:
RETIRED R/O VILL. PIPARIYA, TEH.
MOONGAWALI, DISTT.ASHOK
NGAGAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI N.K.GUPTA- SENIOR ADVOCATE WITH SHRI
R.S.GUPTA-ADVOCATE)
AND
ANIL KUMAR S/O SUBHASH CHAND
JAIN THR.POWER OF ATTORNEY
HOLDER SUBHASH CHAND JAIN S/O
1.
SHRI GOTILAL JAIN, AGED ABOUT
29 YEARS, R/O KAJIPURA GALI,
DISTT.BHOPAL (MADHYA PRADESH)
GAYAPRASAD S/O SHRI JWALA
PRASAD SHRIVASTAVA
OCCUPATION: SERVICE R/O
2.
CHANDERI ROAD, MOONGAWALI
DISTT. ASHOKNAGAR (MADHYA
PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 27-09-2022
05:37:38 PM
2
BY SHRI ABHISHEK SINGH BHADAURIA-ADVOCATE FOR
RESPONDENT NO.1.
This appeal coming on for hearing this day, the court
passed the following:
ORDER
Appellant/defendant has preferred this second appeal
under Section 100 of Code of Civil Procedure against respondent
No.1/plaintiff Anil Kumar Jain and making another defendant as
respondent No.2 being aggrieved by the judgment and decree
passed by the Courts below.
2. Brief facts of the case are respondent No.1- Anil Kumar
Jain filed a civil suit against appellant Kailashnarayan and his
real brother -Gayaprasad, who is respondent No.2 in the present
second appeal, before the Civil Judge, Class II, Mungawali,
Distt. Ashoknagar for title declaration and for recovery of
possession of his land situated at survey No.666/5/1 area 0.014
hectare (40x40 sq. ft.) in village Piprai Tahsil Mungawali. The
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Signed by: MADHU
SOODAN PRASAD
Signing time: 27-09-2022
05:37:38 PM
said suit has been filed by the plaintiff through power of attorney
holder Subhash Chand Jain, who is his father. It is not disputed
that appellant- Kailashnarayan and respondent No.2 Gayaprasad
are real brothers. They purchased a plot measuring 40x40 sq.ft
from plaintiff Anil Kumar on 10.8.1990. It is the case of the
plaintiff that land survey No.666/5/1/ area 1.009 hectare situated
at village Piprai Tahsil Mungawali is in his ownership. The
plaintiff prepared plots for construction of houses and used to
sell the same. In the aforesaid survey number plots of 20x40 sq.
ft. size were developed. Both the defendants jointly purchased
two plots of size 20x40 sq. ft. total 40x40 sq. ft. on 10.8.1990 for
consideration of Rs.8,800/-. The plaintiff executed a sale-deed in
their favour. As per the sale-deed, in the north plot of Shishupal
Singh, in the south plot of Mahendra Kumar, in the east survey
No.661 in the ownership of Lakhmichand Vimal Kumar and in
the west 20 ft wide lane are situated. After purchase of the plot,
name of appellant and respondent No.2 was mutated. The said
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SOODAN PRASAD
Signing time: 27-09-2022
05:37:38 PM
plot is situated towards eastern mound. Towards western mound
there is Mandi road and the land near Mandi Road is more
expensive. Plaintiff used to reside at Bhopal and very rarely
came to village Piprai. The defendants taking advantage of this,
in place of sold plot, encroached towards western mound and
started construction of house. On 11.6.2004 plaintiff came to
know about the same. The four boundaries of the land where
construction of house is going on are -towards east and south
land of plaintiff survey No.666/5/1, towards west land of Ratan
Singh and in the north 20 ft. wide lane which is connected to
Mandi Road are situated. On 11.6.2004 plaintiff objected the
defendants by saying that he has not sold the said plot, but they
did not agree to stop the construction. Thereafter on 14.6.2004
plaintiff sent a registered letter to police Station Piprai and on
27.6.2004 got the land situated at survey No.666/5/1 demarcated
in which it was found that in place of sold plot, defendants are
constructing house over the dispute land. The application of the
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SOODAN PRASAD
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defendants filed in the Panchayat for house building permission
was rejected on the said ground. Till filing of the civil suit,
around the disputed plot measuring 30x40 ft. they have dug
plinth and towards north and west they have erected 2 ft long
wall which is shown in the enclosed map as CDEFC. They are
also digging a pit of 10x10 sq. ft. for the purpose of septic tank
which is shown as G in the map. On 29.6.2004 plaintiff asked the
defendants to handover vacant possession of the disputed land,
but they denied. Aggrieved by the act of the appellant and
respondent No.2, plaintiff filed a civil suit before the trial Court.
During pendency of the suit, the defendants have further illegally
encroached 1000 sq. ft. of land, thus they have encroached on
total 2600 sq. ft. of land for which they have no right.
3. In rebuttal, appellant and respondent No.2 averred that
they purchased only one plot measuring 40x40 sq. ft. In the sale-
deed four corners of the sold plot have wrongly been mentioned.
There is no lane towards western side, that lane is plot of
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SOODAN PRASAD
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Ratansingh. In north land of Shishupal has wrongly been
mentioned. After 20 ft. lane left by the plaintiff, there are houses
of Chetam Verma, Dayaram Ojha, Omprakash Sharma, Kashiram
and others. Before registration of the sale-deed, Anil Kumar
handed over possession to them and on the basis of presumption
mentioned the size of plot as 40x40 sq. ft. Before execution of
the sale-deed on 10.8.1990 they are in possession of 40x60 sq. ft.
of land. The plaintiff has arbitrarily wrongly mentioned the four-
corners of the sold plot in the sale-deeds of other purchasers also.
The plaintiff has sold the land from survey No.666/5 and not
from 666/5/1. They did not start construction of house in June,
2004, but construction is fifteen years old which they got
renovated. By using his influence, plaintiff on 27.6.2004 has
wrongly got the land demarcated and prepared a false
Panchnama. Panchayat has not rejected their permission to
construct the house. They have not encroached upon the land of
plaintiff, but he himself sold the plot 40x 60 sq. ft. to them along
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SOODAN PRASAD
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with its possession. The defendants have been occupying the said
land for the last 17 years. Plaintiff without any cause of action
has filed the civil suit.
4. The plaintiff in support of his case adduced evidence of his
power of attorney holder Shri Subhashchandra Jain, Mahendra
Kumar and Mahendra Kumar Jain besides documentary
evidence. The defendants in support of their case adduced
evidence of Kailashnarayan, Seetaram, Vimal Kumar and
Manohar.
5. Trial Court after discussing ocular and documentary
evidence came to the conclusion that plaintiff is the owner of
40x40 sq. ft. of land of survey No.666/5/1 situated at village
Piprai Tahsil Mungawali and defendants were directed to
handover the vacant possession of the disputed land to the
plaintiff, otherwise plaintiff will be entitled to get the vacant
possession of the aforesaid land.
6. Aggrieved by the aforesaid judgment and decree, plaintiff
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SOODAN PRASAD
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and defendant- Kailashnarayan both preferred different appeals
which were decided vide common judgment dated 22.1.2015 by
the First Appellate Court. The plaintiff preferred the appeal on
the ground that during pendency of the civil suit, defendants has
further encroached upon 1000/- sq. ft. of land, but trial Court has
decreed the suit only in regard to 40x40 sq.ft. of land in his
favour. Learned First Appellate Court after elaborately
discussing the submissions of the parties, their evidence oral and
documentary has come to the conclusion that plaintiff is the
owner of 65x40 sq. ft. of land of survey No.666/5/1 situated at
village Piprai Tahsil Mungawali and defendants were directed to
handover the vacant possession of the disputed land to the
plaintiff, otherwise plaintiff will be entitled to get the vacant
possession of the aforesaid land.
7. Aggrieved by the aforesaid judgment and decree of the
Court below, appellant Kailash Narayan has preferred this appeal
on the ground that respondent No.1/Plaintiff came to know about
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SOODAN PRASAD
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the possession of appellant on 11.6.2004, but despite that he has
amended his plaint in 2010. Without considering the mala fide of
the plaintiff, learned Appellate Court allowed his appeal. The suit
is barred by limitation as the possession of the said plot was
handed over in 1988 as per the admission of plaintiff in Ex.P/4.
No evidence was led by the plaintiff before the trial Court that he
is the owner of land survey No.666/5/1 and appellant after
construction of the house is residing therein since 1988.
8. Heard learned counsel for the parties and perused the
record.
9. The case of the plaintiff is that he is the owner and
possession holder of survey No.666/5/1 area 1.009 hectare. He
has sold two plots of 20x40 sq. ft total 40x40 sq.ft. in favour of
the defendants vide sale-deed dated 10.8.1990 for consideration
of Rs.8,800/-. In place of the said plot, defendants have
encroached towards western side of survey No.666/5/1 and
started construction of house over the said area. The plaintiff has
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Signed by: MADHU
SOODAN PRASAD
Signing time: 27-09-2022
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explained with the help of four corners mentioned in the sale-
deed that the land which was sold to the defendants and the land
where construction is going on are different. In support of his
case, plaintiff has also filed Panchnama issued by the Tahsildar,
Mungawali, Distt. Guna, wherein Tahsildar has noted that though
construction is going on at survey No.666/5, but on the opposite
direction as per the registry. Plaintiff has also placed on record
letter of Sarpanch of Gram Panchayat, Piprai (Ex.P/7) issued to
SHO, Police Station, Piprai Distt. Ashoknagar, for stopping the
construction of house mentioning therein that defendant
Kailashranayan is constructing house at Mandi Road without
obtaining any permission from the Panchayat.
10. In support of case of the plaintiff, his father and power of
attorney holder Subhash Chandra Jain and Mahendra Kumar and
Mahendra Kumar Jain have been examined. Shri Subhash
Chandra Jain in his examination-in-chief has clearly stated that
on the information when he went to Piprai along with plaintiff
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SOODAN PRASAD
Signing time: 27-09-2022
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Anil Kumar, they found that defendants in the opposite direction
of the plot sold to them are getting construction of their house.
During cross-examination, he has stated that Kailashnarayn is
getting construction of house at survey No.666/5, but towards
opposite direction. Plot was sold to him towards east and he is
getting construction towards west. At present, defendants have
encroached upon 40x65 sq. ft. of land. He denied that he
executed sale-deed of 40x40 sq. ft. and gave possession of 40x20
sq. ft. of land. He denied that four corners have been wrongly
mentioned in the sale-deed. On going through his testimony, it is
clear that he has supported the case of plaintiff as a whole.
11. The case of the defendants is that plaintiff has given
possession of disputed land to them, but in the sale-deed he has
wrongly mentioned details of four corners of the land. Plaintiff
has filed the certified copy of the sale-deed as Ex.P/2 and
defendants have produced original sale-deed as Ex.D/3 from
which it is clear that the plot which was sold to the defendants
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SOODAN PRASAD
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and the disputed land where construction of the house was
carried out are different, as they are having different four-
corners. Defendant Kailashnarayan has admitted in his cross-
examination that four-corners of both the lands- which was sold
to him and the land which was encroached by him- are different.
Beside that, defendants have not initiated any proceeding for
correction of details of four-corners of the plot mentioned in the
sale-deed. Defendant Kailash Narayan has admitted in his cross-
examination that he has not initiated any proceeding before the
Sub-Registrar for aforesaid correction. In view of Sections 91 &
92 of the Indian Evidence Act, oral evidence of the defendants in
regard to giving them possession over the disputed land against
the contents of the sale-deed cannot be accepted.
12. During the course of argument, it is also argued by the
appellant that power of attorney holder of the plaintiff cannot
depose in his behalf and to bolster his submission, he relied on
the decision of Coordinate Bench of this Court in Bhagwati
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SOODAN PRASAD
Signing time: 27-09-2022
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Devi vs. Jameela Begam and others, 2013(2) M.P.L.J. 371 &
Kamlesh Kushwaha vs. Vibha Kumar decided on 9th May,
2022 in S.A.No.1342/2016 and the decision of the Apex Court in
the case of Man Kaur (Dead) by L.Rs. Vs. Hartar Singh
Sangha, (2010)10 SCC 512 and Mohinder Kaur vs. Sant Paul
Singh decided on 1st October, 2019 in Civil Appeal No.2869-
2870 of 2010.
13. In the present case, power of attorney holder of the
plaintiff is his father Subhash Chandra Jain and being father of
the plaintiff he has personal knowledge of the transaction took
place between plaintiff and defendants and as such he can depose
on behalf of his son/executor of power of attorney. Same view
has been taken by the Coordinate Bench of this Court in
Vimladevi vs. Dulichand, 1994(1)MPJR 144 wherein
owner/landlady, a house wife did not enter witness box and her
husband, also a power of attorney holder, appeared and deposed
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to all relevant facts from his personal knowledge, it has been
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SOODAN PRASAD
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held that non-examination of plaintiff was not fatal. In the
present case, evidence of Subhash Chandra Jain has been
supported by the evidence of other witnesses examined on behalf
of the plaintiff as well as by documentary evidence.
14. So far as the submission of learned counsel for the
appellant that suit is barred by limitation is concerned, it is true
that he has admitted in registered notice (Ex.P/4) that he has
given the possession of the land to the defendants in 1988, but he
has specifically mentioned in the said notice that he has given
possession of 40x40 sq. ft. of land situated at eastern side of
survey No.666/5, but defendants have encroached towards
western side of aforesaid survey number. Therefore, the suit has
been filed in regard to different land which has been encroached
upon by the appellant and the plaintiff came to know about that
on 11.6.2004. As such, suit is well within limitation.
15. In view of the aforesaid, in the considered opinion of this
Court, First Appellate Court has not committed any error in
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Signed by: MADHU
SOODAN PRASAD
Signing time: 27-09-2022
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dismissing the appeal of the defendant and granting decree in
favour of the plaintiff. There is no substantial question of law
involved in the present second appeal. Consequently, present
second appeal is hereby dismissed being devoid of merits.
(DEEPAK KUMAR AGARWAL)
Judge
ms/-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 27-09-2022
05:37:38 PM
