Akhtar Kha vs Anwar Kha
2023 Latest Caselaw 2049 MP

                         IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                               BEFORE
                         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                   ON THE 6th OF FEBRUARY, 2023
                                   SECOND APPEAL NO.185 OF 2019
                         BETWEEN:-

                         1.    AKHTAR KHA, AGED ABOUT 40 YEARS
                               SELF EMPLOYED.

                         2.    AMJAD KHA, AGED ABOUT 38 YEARS,
                               SELF EMPLOYED.

                         3.    ARSHAD KHA, AGED ABOUT 34 YEARS,
                               SELF EMPLOYED.

                               1 TO 3 S/O LATE AJMAL KHA.

                         4.    SMT. SHAHJADI BI, W/O LATE AJMAL
                               KHA, AGED ABOUT 57 YEARS, SELF
                               EMPLOYED.

                               ALL R/O NARMADA NAGAR, TAHSIL
                               PUNASA DISTRICT KHANDWA (M.P.)


                                                                   .....APPELLANTS
                         (BY SHRI AVINASH ZARGAR- ADVOCATE)

                         AND

                         1.    ANWAR KHA S/O AHMAD KHA, AGED
                               ABOUT 52 YEARS, R/O BORGAON, TAHSIL
                               AND DISTRICT KHANDWA (M.P.)

                         2.    STATE OF M.P., THROUGH COLLECTOR,
                               KHANDWA DISTRICT KHANDWA (M.P.)

                         3.    ZILA PANCHAYAT ADHIKARI, KHANDWA,
                               DISTRICT KHANDWA (M.P.)

Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/9/2023
11:40:21 AM
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                               4.     SECRETARY,   GRAM    PANCHAYAT
                                      BORGAON BUJURG, TAHSIL PANDHANA
                                      DISTRICT KHANDWA (M.P.)


                                                                                  ....RESPONDENTS

                                      This appeal coming on for admission this day, the Court
                         passed the following:
                                                          ORDER

This appeal has been preferred by plaintiffs challenging the judgment and decree dated 13.10.2018 passed by 4 th Additional District Judge, Khandwa in civil appeal no.400025/15, affirming the judgment and decree dated 16.09.2015 passed by 5th Civil Judge Class I, Khandwa in civil suit no.25-A/2015, whereby suit for declaration of title and permanent injunction has been dismissed.

2. The plaintiffs instituted a suit for declaration of title and permanent injunction claiming the suit property (admeasuring 720 sq.ft.) to be their exclusive property on the basis of partition in the family.

3. The defendant 1 appeared and filed written statement denying the plaint averments and claimed the suit property belonging to him on the basis of document (Ex.D/6) and claimed himself to be in exclusive possession of the property.

4. Learned trial Court on the basis of material available on record held that the plaintiffs have failed to prove the plea of partition done by Ahmed Khan and that the property fell in the share of Ajmal Khan. However, upon filing appeal by the plaintiffs, learned first appellate Court by reversing the aforesaid both the findings in relation to partition of the suit property and falling of same in the share Ajmal Khan, affirmed the judgment and decree of trial Court on the ground that the plaintiffs being

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/9/2023 11:40:21 AM

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out of possession since prior to filing of the suit, the same is barred by the provision contained in Section 34 of the Specific Relief Act.

5. Learned counsel for the appellants/plaintiffs submits that after reversal of the findings in relation to the partition of the property and falling of the same in the share of Ajmal Khan, the suit for declaration of title ought to have been decreed and the learned first appellate Court has erred in dismissing the application under Order 6 rule 17 CPC filed by the plaintiffs seeking relief of possession over the land/property in question. He further submits that the bar under Section 34 of the Specific Relief Act is not applicable to the present case.

6. Heard learned counsel for the appellants/plaintiffs and perused the record.

7. The plaintiffs have come with the case that on the basis of partition in the family, the property in question fell in the share of Ajmal Khan (father and husband of plaintiffs) and they are exclusive owner of it. Upon due consideration of the same, learned trial Court dismissed the suit holding that the plaintiffs have failed to prove exclusive ownership on the basis of alleged partition and it is also not proved that the suit property fell in the share of Ajmal Khan, however, dismissed the suit holding it to be barred by the provision of Section 34 of the Specific Relief Act in the light of admission made by the plaintiffs' witnesses to the effect that the plaintiffs are out of possession since prior to filing of the suit.

8. Upon appeal filed by the plaintiffs, learned first appellate Court has in its judgement recorded certain findings in relation to partition in paras 25-26 and ultimately vide paragraph 32 has reversed the findings recorded by learned trial Court in relation to partition. However, in the light of provisions contained in Section 34 of Specific Relief Act,

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/9/2023 11:40:21 AM

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affirmed the dismissal of the suit. Meaning thereby the plaintiffs were not in possession of the suit property even on the date of suit and for the reasons best known to them, did not seek relief of possession by filing the suit.

9. From bare perusal of the statement of plaintiffs' witnesses, it is clear that the plaintiffs were out of possession even on the date of filing of the suit which was filed in the year 2013. At the same time, the witness Aslam Khan (PW-2) states that the plaintiffs were dispossessed by the defendants in the year 2010. The finding of possession based on admissions of the plaintiffs' witnesses is pure finding of fact and is not liable to be interfered with in the limited scope of section 100 CPC.

10. Apparently, the application under order 6 rule 17 CPC seeking possession was filed with the allegations that the plaintiffs have dispossessed the defendants after filing of the suit, which in the light of admissions made by the plaintiffs' witness, has rightly been dismissed by learned first appellate Court.

11. As such, in view of the aforesaid discussion and in my considered opinion, learned Courts below have not committed any illegality in dismissing the suit.

12. Resultantly, second appeal fails and is hereby dismissed in limine under Order 41 rule 11 CPC. However, no order as to the costs.

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

14. At this stage, learned counsel for the appellants/plaintiffs submits that even after dismissal of suit in view of Section 34 of the Specific Relief Act, the plaintiffs/appellants are at liberty to file separate suit for possession in the light of decision of Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs and Ors.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/9/2023 11:40:21 AM

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(2008) 4 SCC 594 and prays for liberty to do so. In my considered opinion, no liberty is required for this purpose because the plaintiffs/appellants are always free to avail such remedy, certainly in accordance with law.

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/9/2023 11:40:21 AM