Rajesh Singh vs Sarju Sharan @ Swami Sharananand
2023 Latest Caselaw 6093 MP

                              1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                    ON THE 17 th OF APRIL, 2023
                 SECOND APPEAL No. 1072 of 2008

BETWEEN:-
1.    RAJESH SINGH S/O LATE DALCHAND, AGED
      ABOUT 32 YEARS, ASHOK NAGAR PUL BOGDA,
      BHOPAL (MADHYA PRADESH)

2.    (A) SMT. DEEPA DEVI SHAKYA W/O          RAM
      BHAROSE SAKYA, AGED 62 YEARS (WIFE)

      (B) MUKESH KUMAR SAKYA S/O RAM BHAROSE,
      AGED 38 YEARS (SON)

      (C) RAJESH KUMAR SAKYA, S/O RAM BHAROSE
      AGED 34 YEARS (SON)

      2(A), (B) & (C) ARE RESIDENTS OF ASHOK NAGAR,
      PUL GOGDA, RAISEN ROAD, BHOPAL

3.    KANHAIYALAL S/O LATE DALCHAND, AGED
      ABOUT 50 YEARS, ASHOK NAGAR PUL BOGDA,
      BHOPAL (MADHYA PRADESH)

4.    OM PRAKASH SINGH S/O LATE DALCHAND, AGED
      ABOUT 45 YEARS, ASHOK NAGAR PUL BOGDA,
      BHOPAL (MADHYA PRADESH)

5.    SMT. RAM PYARI BAI W/O SURAJ PRASAD
      SHAKYA, D/O LATE DALCHAND AGED ABOUT 60
      YE A R S ,  H.NO. 103/144, KARNEL GANJ
      SANTADEEN KA HAATA, KANPUR

6.    SMT. SARJU BAI D/O LATE DALCHAND W/O BABU
      LAL KUSHWAH, AGED ABOUT 52 YEARS, R/O
      GURU    NANAKPURA       VIDISHA  (MADHYA
      PRADESH)

7.    SMT. ASHA DEVI D/O LATE DALCHAND W/O
      DWARIKA PRASAD KUSHWAH R/O JUNIOR L.I.G.
      33/3, OLD SUBHASH NAGAR, GOVINDPURA,
      BHOPAL (MADHYA PRADESH)
                            2
8.    SMT. USHA DEVI D/O LATE DALCHAND W/O
      MUKESH KUSHWAH R/O 965, NAPIER TOWN,
      NEAR NAVEEN VIDYA BHAWAN SCHOOL, KABIR
      NAGAR JABALPUR (MADHYA PRADESH)

                                                  .....APPELLANTS/PLAINTIFFS
(BY SHRI RAKESH PANDEY - ADVOCATE)

AND
PRAMOD CHUG, SECRETARY/MANAGING TRUSTEE S/O
SHRI KRISHNALAL MODI, ADDRESS - JANHVI
MAHADEV MANDIR, ASHRAM NYAS TRUST, ASHOK
NAGAR, RAISEN ROAD, BHOPAL.

                                                 .....RESPONDENT/DEFENDANT
(BY SHRI RAHUL DESHMUKH - ADVOCATE)

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

following:
                                     ORDER

1. This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 11.4.2008 passed by 11th Additional District Judge (Fast Track Court), Bhopal in Civil Appeal No. 5-A/2008 arising out of the judgment and decree dated 29.9.2007 passed by First Additional Civil Judge Class I, Bhopal in Civil Suit No. 49-A/2005

2. The facts necessary for disposal of the present appeal, in short, are that the plaintiff has lost his case from both the Courts below.

3. The plaintiff filed a suit for permanent injunction on the ground that he is in possession of 39584 sq. ft. of land forming part of City Survey No.21184 (for the last 50 years). The plaintiff made an application to the Nazul Department on 1.9.1999 with regard to his possession and the Nazul Officer by order dated 30.4.2002 affirmed the possession of the plaintiff and his name was recorded in records. On the aforesaid land, one house which is in dilapidated condition is standing and the remaining land is open land. The plaintiff filed an

application to the Nazul Department for issuance of NOC for constructing a new house and the Nazul Officer by order dated 10.10.2002 granted NOC to construct a house on 3492 sq. ft of land out of 39584 sq. ft. It was mentioned that on the northern side of the land of the plaintiff, the house of the defendant is constructed over 24 ft x 28 ft in which he is residing and the said house is shown as 'ABCD' in the plaint map. Earlier the defendant was the tenant of the plaintiff, which was subsequently sold to the defendant by registered sale-deed dated 1.9.1998 and the defendant constructed a new house. The defendant has constructed a Hawan Kund (fire lit) of 5 x 5 ft at a distance of 3 ft from his house and has also constructed a Tin shed over the said Hawan Kund and 2 idols have been installed and the Hawan Kund is shown as 'E' in the plaint map. The defendant started approaching his house through the land of the plaintiff whereas the approach road to the house of the defendant is on the western side of the street but the defendant has closed the said street. The defendant is also parking his car on the northern western side of the land of the plaintiff, which is shown as 'F' in the plaint map whereas the defendant has no right to do so. On 24.8.2003, the defendant along with his disciples has tried to take possession of the aforesaid land of the plaintiff and had also assaulted the son of the plaintiff namely Kanhaiyalal and other members of the family and the said incident was reported to Police Station Aishbagh, District Bhopal by

Kanhaiyalal on 24.8.2003. The defendant has no right or title to interfere with the peaceful possession of the land shown in the plaint map and the defendant has no right to establish Hawan Kund, idols and to park his car.

4. The defendant filed his written statement and claimed that the land in dispute is in peaceful possession of the defendant for the last 30 years. The said land belongs to the State Government and the plaintiff was never in possession

of the same. Earlier the plaintiff had filed a suit against the defendant, which was registered as Civil Suit No. 132-A/2002 and the suit filed by the plaintiff was dismissed by the judgment and decree dated 13.11.2022 passed by 10th Additional District Judge, Bhopal. In the said Civil Suit also it was specifically pleaded by the defendant that the plaintiff is not in possession of the said land and the said land belongs to the State Government, which is in peaceful possession of the defendant for the last 30 years. The religious functions are being organized for the last 30 years without any obstruction. Even the State of M.P. has no objection to that. Thus, in nut shell the case of the defendant was the land in dispute is a government land and Hawan Kund and idols etc. are there for the last 30 years and the religious functions are also being performed for the last 30 years.

5 . The trial Court after framing issues and recording evidence held that the plaintiff is not in possession and is not the owner of the land in dispute.

6. Being aggrieved by the judgment and decree passed by the trial Court, the appellant/plaintiff preferred an appeal, which too has been dismissed by the first appellate Court.

7. Challenging the judgment and decree passed by the Courts below, it is submitted by the counsel for the appellant that both the Courts below have given erroneous concurrent findings of facts with regard to the ownership of the appellant and accordingly proposed the following substantial questions of law:-

"A. Whether the findings of the courts below are based on no evidence?

B. Whether the Learned Courts below were justified in placing reliance on earlier suit for cancellation of sale

deed which has no relation with the present suit?

C. Whether the Learned Courts below ere justified in ignoring admission of defendant regarding tenancy with the plaintiffs/appellants?

D. Whether the finding of the courts below regarding possession and ownership of the appellant/plaintiffs over the suit land are perverse?"

8. Per contra, the appeal is vehemently opposed by the counsel for the respondents. He has submitted that the land in dispute does not belong to the appellant.

9. Heard the counsel for the parties.

10. Both the Courts below have held that the appellant is not the owner of the property in dispute. The plaintiff has not produced any evidence to show that he is the owner of the land in dispute. Admittedly, according to the plaintiff the house of the defendant is constructed over the land, which is situated on the northern side of the land of the plaintiff. Even otherwise, the plaintiff did not file any application under Order 26 Rule 9 CPC for demarcation of the land. The defendant had not claimed any title over the land belonging to the plaintiff i.e. 39584 sq. ft.

11. Undisputedly, the finding of fact regarding ownership and possession of plaintiff over the land in dispute is a concurrent findings of fact. The counsel for the appellant could not point out any perversity in the said findings. Further more, the earlier suit filed by the plaintiff for cancellation of sale deed executed in favour of the defendant was also dismissed. It is well established principle of law that this Court in exercise of power under Section 100 of CPC cannot

interfere with the concurrent findings of fact even if they are said to be erroneous. As no perversity could be pointed out by the counsel for the appellant, accordingly, this Court is of the opinion that no substantial question of law arises in the present appeal.

12. Accordingly, the judgment and decree dated 11.4.2008 passed by 11th Additional District Judge (Fast Track Court), Bhopal in Regular Civil Appeal No. 5-A/2008 arising out of the judgment and decree dated 29.9.2007 passed by First Additional Civil Judge Class I, Bhopal in Civil Suit No. 49- A/2005 are hereby affirmed.

13. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE PB

PRADYUMNA BARVE 2023.04.19 18:57:02 +05'30'