Madhya Pradesh High Court
Smt. Hanas Bi vs Ramkishan on 21 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21 st OF DECEMBER, 2023
SECOND APPEAL No. 1836 of 2019
BETWEEN:-
1. SMT. HANAS BI W/O SHRI GULSHER KHAN, AGED
ABOUT 64 YEARS, R/O NEAR VRUDHASHRAM
HARDA, TAHSIL AND DISTRICT- HARDA
(MADHYA PRADESH)
2. YUNUS S/O SHRI GULSHER KHAN, AGED ABOUT
28 YEARS, R/O NEAR VRUDHASHRAM HARDA,
TAHSIL AND DISTRICT- HARDA (MADHYA
PRADESH)
3. FARUKH S/O SHRI GULSHER KHAN, AGED ABOUT
23 YEARS, R/O NEAR VRUDHASHRAM HARDA,
TAHSIL AND DISTRICT- HARDA (MADHYA
PRADESH)
4. KHERUN BI W/O SHRI LATIF KHAND/O SHRI
GULSHER KHAN AGED ABOU 35 YEARS R/O
KILLOUD TAH. KHIRKIYA DISTRICT-HARDA
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI L.N. SAKLE - ADVOCATE )
AND
1. RAMKISHAN S/O SHRI KISHORILAL
KUCHBANDHIA, AGED ABOUT 55 YEARS,
KHEDIPURA HARDA, TAHSIL AND DISTRICT-
HARDA (MADHYA PRADESH)
2. JABBAR S/O SHRI GULSHER KHAN, AGED ABOUT
51 YEARS, R/O KHEDIPURA HARDA, TAHSIL AND
DISTRICT- HARDA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAMAL SINGH RAJPUT - ADVOCATE FOR RESPONDENTS)
This appeal coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 12/22/2023
6:39:44 PM
2
following:
ORDER
T h is second appeal has been preferred by the appellants/plaintiffs
challenging the judgment and decree dated 29.03.2019 passed by Additional
Judge to the Court of First Additional District Judge, Harda in Regular Civil
Appeal No.111A/2017 affirming judgment and decree dated 15.11.2017 passed
by 2nd Additional Judge to the Court of 1st Civil Judge Class-II, Harda in Civil
Suit No.42A/2017, whereby Courts below have dismissed the
appellants/plaintiffs' suit for declaration of title, permanent injunction and
restoration of possession in respect of house in question admeasuring 50 x
17sq.ft. situated at Joshi Mohalla, Khedipura, Harda and at the same time,
decreed the counter claim of defendant 1- Ramkishan restraining the plaintiffs
from making interference in possession of defendant 1.
2. Learned counsel for the appellants/plaintiffs submits that the house in
question belonged to father of original plaintiff-Gulsher Khan (now dead,
through LRs) namely Umrao Khan which is clear from Khasra of the year 2015-
2017 (Ex.P/1) as well as from the house tax register (Ex.P/2). He further
submits that defendant 2-Jabbar Khan (plaintiff-Gulsher Khan's son) being in
need of the house, plaintiff gave it to him for residence but later on, defendant
1-Ramkishan took possession over it from defendant 2 forcibly in lieu of some
amount given by him to defendant 2. Learned counsel submits that as against
documentary evidence (Ex.P/1 and P/2), no evidence in rebuttal has been
produced by the defendant 1, in spite of this learned Courts below have
committed illegality in dismissing the suit holding that the plaintiffs are not
owner of the house in question and further erred in decreeing counter claim filed
by defendant 1. With these submissions, learned counsel for the appellants
prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 1-2 supports the impugned
judgment & decree passed by Courts below and prays for dismissal of the
second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Suit for declaration of title, permanent injunction and for recovery of
possession of house in question was instituted by original plaintiff Gulsher
Khan (now dead, through LRs) with the contention that the house in question
belonged to Umrao Khan and after death of Umrao Khan, the plaintiff received
the house in succession and gave it to his son i.e. defendant 2-Jabbar Khan for
his residence, but with a view to prove ownership, no clear and admissible
documentary evidence has been produced on record by the plaintiff. Both the
documents i.e. Khasra and house tax register (Ex.P/1 and P/2) do not appear to
be in relation of the house in question and also do not make the identity of suit
house clear.
6. Taking into consideration said aspect of the matter, trial Court as well as
first appellate Court have discarded both the said documents for the purpose of
ownership of the plaintiff(s) and holding the defendant 1 to be in possession of
the house decreed his counter claim. It is well settled that in absence of proof of
title, the suit for declaration of title and restoration of possession cannot be
decreed.
7 . Upon perusal of entire oral as well as documentary evidence (Ex.P/1 and
P/2), this Court does not find any illegality or perversity in the judgment &
decree passed by learned Courts below.
8. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
vai
