Ratiram Ahirwar vs Khemchand
2023 Latest Caselaw 1877 MP

                         IN THE HIGH COURT OF MADHYA PRADESH
                                          AT JABALPUR
                                              BEFORE
                         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                  ON THE 2nd OF FEBRUARY, 2023
                                  SECOND APPEAL NO.1136 OF 2020
                         BETWEEN:-
                               RATIRAM AHIRWAR S/O BHOLAN
                               AHIRWAR, AGED ABOUT 55 YEARS, R/O
                               WARD NO.18, NOWGAON, TAHSIL
                               NOWGAON DISTRICT CHHATARPUR
                               (M.P.)
                                                                    .....APPELLANT

                         (BY SHRI VIJAY KUMAR PANDEY - ADVOCATE)

                         AND

                         1.    KHEMCHAND       S/O     BHUMANIDIN
                               AHIRWAR, AGED 30 YEARS,

                         2.    SHARDA S/O BHUMANIDIN AHIRWAR
                               AGED 18 YEARS,

                         3.    RAMAKU W/O BHUMANIDIN AHIRWAR
                               AGED 50 YEARS,

                               ALL R/O WARD NO.18,      NOWGAON,
                               TAHSIL    NOWGAON,        DISTRICT
                               CHHATARPUR (M.P.)

                         4.    STATE OF M.P. THROUGH COLLECTOR,
                               CHHATARPUR (M.P.)


                                                                   ....RESPONDENTS

                         (BY SHRI RAJIV PANDEY - PANEL LAWYER FOR STATE/
                         RESPONDENT -4)


Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/4/2023
2:01:32 PM
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                                      This appeal coming on for admission this day, the Court
                         passed the following.
                                                        ORDER

This second appeal has been preferred by the plaintiff challenging the judgment and decree dated 28.01.2020 passed by 2nd Additional District Judge, Nowgaon, District Chhatarpur in RCA no. 07/15 affirming the judgment and decree dated 23.02.2015 passed by 2 nd Civil Judge Class-II, Nowgaon, District Chhatarpur in civil suit no.10-A/2013, whereby suit filed for removal of Tapra (temporary construction) and for permanent injunction has been dismissed.

2. The plaintiff claiming himself to be owner and in possession of plot admeasuring 25x50=1250 sq.ft. bearing in Khasra no.710/1/2 area 0.011 Are situated in Mouza Nowgaon, District Chhatarpur, instituted the suit claiming relief of removal of disputed Tapra constructed by defendants 1-3 over an area 10x16 sq.ft. of the said plot.

3. The defendants 1-3 filed written statement denying the plaint allegations and contended that the plaintiff is neither owner nor in possession of the disputed land and the suit for want of relief of possession is not maintainable. Taking other pleas also, the suit was prayed to be dismissed.

4. On the basis of pleadings of the parties, learned trial Court framed issues and after recording evidence and after consideration of the same dismissed the suit vide judgment and decree dated 23.02.2015, which in appeal filed by the plaintiff has been affirmed by 1 st appellate Court vide judgment and decree dated 28.01.2020.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/4/2023 2:01:32 PM

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5. Learned counsel for the appellant/plaintiff submits that learned both the Courts below have committed illegality in passing the impugned judgment and decree. He further submits that the defendants 1-3 have no right over the property and the plaintiff being owner, is entitled for decree of removal of construction of Tapra raised by defendants 1-3. accordingly, he prays for admission of the appeal.

6. Heard learned counsel for the appellant and perused the record.

7. After due consideration of the entire evidence available on record, learned Courts below have concurrently held that the plaintiff has failed to prove the encroachment allegedly made by the defendants 1-3 upon the land of the plaintiff over an area 10x16 sq.ft. out of total plot area 1250 sq.ft. It is also held that in absence of proof of ownership over the land in question, the plaintiff is not entitled for decree of possession/removal of construction of tapra.

8. From bare perusal of plaint also, it is clear that the plaintiff has instituted the suit simplicitor for permanent injunction and has also sought relief of removal of construction from the land in question, but for the reasons best known to him, has not sought relief of declaration of title, which is in dispute since beginning.

9. It is well settled that when there is dispute about title between the parties, then it is obligatory on part of the plaintiff to seek declaration of his title and in absence of declaration of ownership, the plaintiff is not entitled for decree of possession or removal of construction.

10. In view of the aforesaid, this Court does not find any illegality or perversity in the judgment and decree passed by learned Courts below.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/4/2023 2:01:32 PM

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Resultantly, in absence of any substantial question of law, second appeal fails and is hereby dismissed in limine under Order 41 rule 11 CPC.

11. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/4/2023 2:01:32 PM