Smt Gango Bai vs Murari Lal Jain
2023 Latest Caselaw 13402 MP

                            1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                  ON THE 17 th OF AUGUST, 2023
                SECOND APPEAL No. 1838 of 2022

BETWEEN:-
1.    SMT GANGO BAI W/O LATE SHRI RAMKISHAN
      KUSHWAH, AGED ABOUT 66 YEARS, R/O NEAR
      RADHARAMAN MANDIR, OLD SHIVPURI, DISTT
      SHIVPURI (MADHYA PRADESH)

2.    MUNNA S/O LATE SHRI RAMKISHAN KUSHWAH,
      AGED    ABOUT   36   YEARS,  R/O NEAR
      RADHARAMAN MANDIR, OLD SHIVPURI, DISTT
      SHIVPURI (MADHYA PRADESH)

3.    ASHOK S/O LATE SHRI RAMKISHAN KUSHWAH,
      AGED    ABOUT    36  YEARS,  R/O NEAR
      RADHARAMAN MANDIR, OLD SHIVPURI, DISTT
      SHIVPURI (MADHYA PRADESH)

4.    GOVIND S/O LATE SHRI RAMKISHAN KUSHWAH,
      AGED    ABOUT    34   YEARS,  R/O NEAR
      RADHARAMAN MANDIR, OLD SHIVPURI, DISTT
      SHIVPURI (MADHYA PRADESH)

5.    MUKESH S/O LATE SHRI RAMKISHAN KUSHWAH,
      AGED    ABOUT    31   YEARS,  R/O NEAR
      RADHARAMAN MANDIR, OLD SHIVPURI, DISTT
      SHIVPURI (MADHYA PRADESH)

                                                   .....APPELLANTS
(BY SHRI SUNIL KUMAR JAIN - ADVOCATE )

AND
1.    MURARI LAL JAIN S/O SHRI KANHIYA LAL JAIN,
      AGED ABOUT 75 YEARS, R/O MAHAL COLONY
      SHIVPURI, DISTT SHIVPURI (MADHYA PRADESH)

2.    MANOJ JAIN S/O SHRI MURARI LAL JAIN, AGED
      ABOUT 45 YEARS, R/O MAHAL COLONY
      SHIVPURI, DISTT SHIVPURI (MADHYA PRADESH)
                                      2
                                                               .....RESPONDENTS
(BY SHRI YOGESH SINGHAL - ADVOCATE)

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

This appeal under Section 100 of CPC is directed by appellants/plaintiffs against the concurring judgment and decree dated 23/6/2022 passed by First District Judge, Shivpuri in regular Civil Appeal No. 43/2018 confirming the judgment and decree dated 28/4/2018 passed by Additional Judge the Court of Civil Judge, Class-I, Shivpuri in Civil Suit No. RCS-A2500146/2015. Plaintiffs/appellants suit for declaration of title and permanent injunction has

been rejected while counter claim filed by defendant No. 2 seeking declaration of title and permanent injunction and for handing over the possession of the disputed land has been allowed.

F ac ts necessary for disposal of this appeal are to the effect that appellants/plaintiffs have filed a civil suit for declaration of title and permanent injunction levelling the allegation that plaintiffs are residing in ancestral house. There is a courtyard in the house admeasuring 31 x 8 sq. feet. It is pleaded that respondents are not in the occupation of the land and not a single door or window opens towards disputed property. On 30/8/2015, respondents threatened the plaintiffs to vacate the disputed land and also filed application before the Tehsildar Shivpuri and Executive Magistrate Shivpuri in which plaintiffs have also put their appearance and thereafter, the instant suit has been filed.

Defendants filed separate written statement and denied all the plaint allegations. It is further stated by defendant No. 2 in his written statement that the disputed land has been purchased by him from one Kanhaiyalal Kachhi vide

registered sale deed dated 12/5/1987 and thereafter also constructed boundary wall over it, which has been demolished by the plaintiffs. Defendant No. 2 is in possession of the said land since year 1987.

Based on the aforesaid pleadings, trial Court framed as many as 11 issues and allowed parties to lead evidence. Trial Court upon detailed examination of evidence on record, dismissed the suit; however, the counter claim filed by defendant no. 2 has been allowed.

On appeal, the first appellate Court,while re-appreciating the evidence on record, again answered the issues framed by the trial Court and also answered each question raised by appellants exhaustively with due advertence to oral and documentary evidence on record. The first appellate court has found that defendant No. 2 is the owner of the disputed land.

Heard learned counsel for the parties at length and perused the record. After having perused the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.

(ROOPESH CHANDRA VARSHNEY) JUDGE JPS/-

JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

PRAKASH postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec8 65c7633f4cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8 CB2193780D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B807 2A2D8C01433EBD48AE4F609F108CA8F8DE6B5 22, cn=JAI PRAKASH SOLANKI Date: 2023.08.18 15:43:01 +05'30'