Madhya Pradesh High Court
Smt. Anita Valmiki vs Ramesh Valmiki on 1 April, 2023
Author: Sunita Yadav
1 SECOND APPEAL No. 1464 of 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 1st OF APRIL, 2023
SECOND APPEAL No. 1464 of 2022
BETWEEN:-
SMT. ANITA VALMIKI W/O LT VINOD VALMIKI, AGED
ABOUT 42 YEARS, OCCUPATION: SWEEPER, R/O BEHIND
OF JAL MANDIR, NEAR JHIRIYA MANDIR, HARIJAN
BASTI, SHIVPURI (MADHYA PRADESH)
.....APPELLANT
(BY MR. ANMOL KHEDKAR - ADVOCATE)
AND
RAMESH VALMIKI S/O BABULAL VALMIKI, AGED
ABOUT 58 YEARS, OCCUPATION: RETIRED SWEEPER,
1.
R/O BEHIND OF JAL MAIDR NEAR JHIRIYA MANDIR,
HARIJAN BASTI SHIVPURI (MADHYA PRADESH)
RAJESH GENCHAR S/O SHRI RAMESH VALMIKI, AGED
ABOUT 36 YEARS, R/O BEHIND OF JAL MAIDR NEAR
2.
JHIRIYA MANDIR, HARIJAN BASTI, SHIVPURI
(MADHYA PRADESH)
3. MOOLCHAND S/O LATE SHRI JAGRAM VALMIKI
(DEAD) THROUGH HIS LEGAL HEIRS,
3.1 SMT SANDHYA W/O SHRI MOOLCHAND, AGED
ABOUT 40 YEARS, R/O BEHIND THE OFFICE OF
MUNICIPAL COUNCIL, SHIVPURI, SHRIRAM COLONY,
SHIVPURI, SHRIRAM COLONY, SHIVPURI (MADHYA
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/6/2023
5:27:56 PM
2 SECOND APPEAL No. 1464 of 2022
PRADESH)
MOOLCHAND S/O LATE SHRI JAGRAM VALMIKI
(DEAD) THROUGH HIS LEGAL HEIRS
3.2. NARENDRA VALMIKI (GENCHAR) S/O
4. MOOLCHAND, AGED ABOUT 30 YEARS, R/O BEHIND
THE OFFICE OF MUNICIPAL COUNCIL, SHIVPURI,
SHRIRAM COLONY, SHIVPURI, SHRIRAM COLONY,
SHIVPURI (MADHYA PRADESH)
MOOLCHAND S/O LATE SHRI JAGRAM VALMIKI
(DEAD) THROUGH HIS LEGAL HEIRS
3.3. RAVEENDRA VALMIKI (GENCHAR) S/O
5. MOOLCHAND, AGED ABOUT 30 YEARS, R/O BEHIND
THE OFFICE OF MUNICIPAL COUNCIL, SHIVPURI,
SHRIRAM COLONY, SHIVPURI, SHRIRAM COLONY,
SHIVPURI (MADHYA PRADESH)
MOOLCHAND S/O LATE SHRI JAGRAM VALMIKI
(DEAD) THROUGH HIS LEGAL HEIRS
3.4. SMT RAJNI W/O SHRI VIKAS GOHAD D/O SHRI
6.
MOOLCHAND, AGED ABOUT 25 YEARS, HOUSE NO. 25,
C-BLOCK, NARIYAL KHEDA, PREM NAGAR, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for Admission this day, the court
passed he following:
JUDGMENT
Present second appeal under Section 100 of CPC has been
filed against the judgment and decree dated 11.03.2022 passed by
Ist District Judge, Shivpuri, (M.P.) in Civil Appeal
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Signed by: LOKENDRA JAIN
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No.RCA/41/2018 affirming the judgment and decree dated
28.02.2018 passed by the Additional Judge, District Shivpuri to the
Court of Ist Civil Judge, Class-I, in Civil Suit No.
RCSA/2800014/2015.
2. Factual matrix of the case are in brief are that the appellant/
plaintiff filed a suit for declaration and permanent injunction with
the pleadings that the suit property which is a "Pataur" situated at
Gandhi Colony, Shivpuri, ad-measuring area of 17.4*21 feet which
belongs to plaintiff who is owner and possessor of the suit premises.
Plaintiff and defendants are well known to each other since they
belong to the same community. Defendant No. 1-Ramesh Valmiki
earlier filed a civil suit bearing Civil Suit No. 48-A/2006 against
husband of plaintiff-Vinod Valmiki and original defendant
Moolchand claiming the title over the suit property on the basis of
one agreement to sell which was denied by the plaintiff in that suit,
but original defendant-Moolchand fraudulently mutated his name
over the entire property and executed a sale deed on 27.07.2006 in
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favour of defendant No. 2-Rajesh Genchar and thereafter, defendant
No. 1 intentionally did not press the suit No. 48A/2006,
consequently, that civil suit was dismissed in default vide order
dated 13.07.2007.
3. It is further pleaded that defendant No. 1 did not even try to
restore that Civil Suit No. 48A/2006, therefore, on the basis of an
agreement to sell, defendant No. 1 did not obtain any title and
merely on the basis of the registered sale deed executed by
Moolchand in favour of defendant No.2, the right title and interest
of plaintiff was not valid. On 26.06.2013 and 30.07.2013, the
defendant No. 1 and 2 tried to dispossess the appellant by giving a
threatening and created cause of action to the plaintiff, whereas, the
plaintiff is in possession of the suit premises from last 22 years
without any hindrance, therefore, plaintiff be declared owner and
possessor of the suit premises.
4. Defendants filed their written statement and denied all the
pleadings and stated that the suit premises disputed by the plaintiff
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and the property which has been sold by Moolchand to defendant
No. 2 are different and Moolchand has sold the property which
belongs to his ownership and, therefore, the suit of the plaintiff is
baseless and bogus. Defendant No. 2 has validly purchased the
property and obtained the permission from Municipality Shivpuri
and the plaint of the plaintiff does not contain any merit and prayed
for dismissal of the suit.
5. The plaintiff examined herself and Smt. Rekha and Smt.
Usha as PW-2 and PW-3 and defendant No.2 has been examined as
DW-1 and Sammi as DW-2 which are evident from Ex.D/1 to D/4.
6. On the basis of pleadings, learned trial Court framed as many
as seven issues and recorded evidence led by both the parties. After
hearing arguments and having considered the legal position, learned
trial Court dismissed the suit vide its judgment and decree dated
28.02.2018. Against the said judgment and decree dated
28.02.2018, the plaintiff/appellant preferred a civil appeal before
the first appellate Court and learned first Appellate Court heard the
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arguments and contrary to law, dismissed the appeal and affirmed
the judgment and decree passed by the learned trial Court vide its
judgment and decree dated 11.03.2022, against which, present
second appeal has been filed before this Court.
7. Learned counsel for the appellant/plaintiff argued that
judgment and decree passed by the Courts below are manifest
illegal, contrary to law and record and are also against the well
settled principles of law, therefore, are liable to be set aside. It is
further submitted that it is an admitted position that the suit of the
respondent/defendant No. 1 claiming title from the plaintiff includes
the sufficient pleadings to substantiate the case of the pleadings
because in the previous Civil Suit No. 48A/2006, defendant No. 1
pleaded that the plaintiff-Anita Valmiki and Moolchand are the
owner of the suit premises and husband of plaintiff Vinod Valmiki
and Moolchand executed an agreement to sell on 13.01.1993 and on
the basis of the same, respondent No. 1 claiming title in his
previous suit No. 48A/2006 but Moolchand without partition and
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without specific possession, executed a sale deed in favour of
defendant No. 1 on 27.07.2006 for the same premises which is in
dispute in the present civil suit and consequently, defendant No. 1
got dismissed that civil suit in default but the pleadings pleaded by
any party will always stand against him and the admission in that
pleadings will always be a substantial proof against the party and in
this present civil suit also the defendant No. 1 is estopped from
raising dispute over the title of plaintiff after admitting the title of
husband of plaintiff over the suit premises. In such circumstances,
the judgments and decree passed by both the Courts' below be
quashed.
8. It is further argued that previous suit was not decided on
merit but intentionally got dismissed in default by defendant No.1
but the pleadings stated in that previous suit No.48-A/2006 are
sufficient enough to prove the title of the appellant/plaintiff and
therefore, the doctrine of estoppel will be applicable in the present
case as per Section 115 of the Indian Evidence Act, 1872 and
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therefore, respondents/defendants are estopped from raising dispute
over title of the plaintiff after admitting the title in the previous civil
suit. Hence, the judgments and decree passed by both the Courts
below are illegal and liable to be set aside.
9. Heard the learned counsel for the appellant and perused the
record.
10. From perusal of the record, it is apparent that learned
Additional Judge, to the Court of Ist Civil Judge, Class-I, District
Shivpuri considered the evidence adduced by both the parties in its
judgment in detail and held that plaintiff has failed to prove her
ownership over the disputed property and also found that there is no
evidence that defendants are trying to encroach upon the property in
question owned by the plaintiff and dismissed the suit.
11. Keeping in mind the above principles of law and having gone
through the judgment passed by the learned trial court, the First
Appellate Court reconsidered the entire evidence and discussed the
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same for its judgment from para 15 to 39 and found that no
illegality has been committed by the learned trial Court while
dismissing the suit.
12. The Apex Court in the case of Paras Nath Thakur v.
Smt.Mohani Dasi (Deceased) & Ors. [AIR 1959 SC 1204] held:-
"It is a well settled by a long series of decisions of the
Judicial Committee of the Privy Council and of this
Court, that a High Cour,t on second appeal, cannot go
into questions of fact, however, erroneous the findings
of fact recorded by the courts of fact may be. To the
same effect are the judgments reported in Sri Sinha
Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja
Jeer alias Emberumanar Jeer & Ors. [AIR 1961 SC
1720], V.Ramachandra Ayyar & Anr. v. Ramalingam
Chettiar & Anr.[AIR 1963 SC 302] and Madamanchi
Ramappa & Anr. v. Muthaluru Bojjappa [AIR 1963 SC
1633]."
13. In the case of Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar & Ors. [JT 1999 (3) SC 163], wherein the Apex Court
again considered this aspect of the matter and held:-
"If the question of law termed as substantial question
stands already decided by a large bench of the High
Court concerned or by the Privy Council or by the
Federal Court or by the Supreme Court, its merely
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wrong application on facts of the case would not be
termed to be a substantial question of law. Where a
point of law has not been pleaded or is found to be
arising between the parties in the absence of any factual
format, a litigant should not be allowed to raise that
question as substantial question of law in second
appeal. The mere appreciation of the facts, the
documentary evidence or the meaning of entries and the
contents of the document cannot be held to be raising a
substantial question of law. But where it is found that
the appellate court has assumed jurisdiction which did
not vest in it, the same can be adjudicated in the second
appeal, treating it as substantial question of law. Where
the first appellate court is shown to have exercised its
discretion in a judicial manner, it cannot be termed to
be an error either of law or of procedure requiring
interference in second appeal."
14. In Reserve Bank of India & Anr. v. Ramakrishna Govind
Morey, (AIR 1976 SC(830) it is held that whether trial court
should not have exercised its jurisdiction differently is not a
question of law justifying interference."
15. Upon perusal of the judgment and decree of the Courts below
and the arguments advanced, the appeal is found to be devoid of
any substance because in the opinion of this court, entire gamut of
the matter is in the realm of facts of the case. Both the Courts below
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have recorded impeccable findings based on proper appreciation of
evidence on record. No question of law much less substantial
question of law arises warranting interference under Section 100 of
CPC.
16. Consequently, this second appeal sans merit and is hereby5
dismissed at admission stage.
(Sunita Yadav)
Judge
LJ*
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/6/2023
5:27:56 PM
