Madhya Pradesh High Court
Sharad Chandra vs Lachhu on 8 February, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 145 of 2014
08th DAY OF FEBRUARY, 2023
Between:-
SHARAD CHANDRA, S/O KISHORILAL,
AGED ABOUT 71 YEARS, OCCUPATION
RETIRED GOVT. SERVANT AND
AGRICULTURIST, R/O VILLAGE BARUD
TAHSIL AND DISTRICT KHANDWA, M.P.
....................................APPELLANT
(BY MR. ASHISH SHROTI-ADVOCATE)
AND
1.LACHHU S/O KALU NAYAK,
AGED 59 YEARS
2. RAM SINGH S/O KALU NAYAK
AGED 55 YEARS,
N0.1 AND 2 BOTH ARE AGRICULTURIST AND
R/O VILLAGE BARUD, TAHSIL AND DISTRICT
KHANDWA(MP.)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/9/2023
11:11:40 AM
2
3.STATE OF MADHYA PRADESH,
THROUGH THE COLLECTOR, KHANDWA
(EAST NIMAD).
......................RESPONDENTS
(SMT. SARITA TIWARI-PANEL LAWYER FOR RESPONDENT-3)
..........................................................................................................................................
This appeal coming on for admission on this day, the court passed the following:
ORDER
This second appeal has been preferred by appellant/plaintiff challenging the
judgment and decree dated 28.11.2013 passed by 4 th Additional District Judge, Khandwa
in regular civil appeal no.25-A/2012 confirming the judgment and decree dated
28.02.2011 passed by 2nd Civil Judge Class-II, Khandwa in civil suit no.12-A/2010,
whereby learned Courts below have dismissed the suit filed by plaintiff for declaration
of title and permanent injunction wherein by way of amendment, relief of possession
was also sought.
2. In short the facts are that the plaintiff insituted a suit on 08.07.2010 for
declaration of title and permanent injunction against the respondents/defendants
claiming himself to be owner and in possession of Khasra No.203 area 0.18 Are situated
in Village Siwariya, Tahsil Punasa, District Khandwa and by way of amendment, plaint
was amended to the effect that the defendants by making breach of order of temporary
injunction have dispossessed the plaintiff on 14.12.2010, therefore, possession be
restored along with compensation.
3. Defendants 1-2 appeared and filed written statement denying the plaint allegations
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/9/2023
11:11:40 AM
and contended that there was some loan transaction in between the plaintiff and father of
defendants and such amount has already been paid by the defendants and now the
plaintiff has malafidely instituted the suit.
4. On the basis of pleadings of the parties, learned trial Court framed issues and
recorded evidence and after due consideration of the same, dismissed the suit vide
judgement and decree dtd. 28.02.2011 for want of documentary evidence in respect of
title of the plaintiff on the land in question.
5. Against the judgment and decree passed by learned trial Court, plaintiff preferred
civil appeal in which he filed two applications under Order 41 Rule 27 of CPC dated
31.03.2011 and 21.08.2012. However, no application for amendment under Order 6 Rule
17 of CPC was filed by the plaintiff. By way of application dated 31.03.2011, plaintiff
filed certain khasra entries, renumbering list and by way of application dated
21.08.2012, plaintiff placed on record the sale deed dated 21.05.1981 whereby the land
in question was alleged to have been purchased. Learned first appellate Court after
hearing the parties and upon due consideration of the material available on record
dismissed the appeal and confirmed the judgment and decree of trial Court vide
impugned judgment and decree dated 28.11.2013.
6. Learned counsel for the appellant submits that although before learned trial Court,
plaintiff/appellant could not file the relevant document of title but by way of two
applications under Order 41 Rule 27 CPC dated 31.03.2011 and 21.08.2012, plaintiff
filed certain documents in additional evidence. Learned first appellate Court has
considered only one application under Order 41 Rule 27 CPC dated 21.08.2012 and has
neither considered nor decided the application under Order 41 Rule 27 CPC dated
31.03.2011, therefore, the judgment and decree passed by learned first appellate Court is
vitiated and this second appeal deserves to be admitted on this ground in the light of
decision of Supreme Court in the case of North Eastern Railway Administration
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Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/9/2023
11:11:40 AM
Gorakhpur Vs. Bhagwan Das (Dead) by Lrs. (2008)8 SCC 511. He further submits that
from the additional documentary evidence annexed along with the application under
Order 41 Rule 27 CPC dated 31.03.2011, it is clearly proved that the plaintiff is owner
of the land khasra no.203 area 0.18 Are because the original number of the land was 203
which was changed into 300, which is clear from the documents filed along with the
application under Order 41 Rule 27 CPC dated 31.03.2011. With these submissions, he
prays for admission of the appeal.
7. Heard learned counsel for the appellant and perused the record.
8. For the reasons best known to the plaintiff, he has not pleaded source of title in the
entire plaint and just at the end of it, has described the suit property as khasra no.203
area 0.18 Are. Additional evidence i.e. the Sale deed dated 21.05.1981, which is said to
have been executed in favour of the plaintiff, is in relation to khasra no. 300, therefore,
prima facie, this sale deed cannot be considered as a document in proof of title of the
plaintiff over the land khasra no.203 area 0.18 Are. The relevant second line at page no.2
of the sale deed is not legible, which could be conclusive for the purpose of title of the
parties but even if this sale deed is considered in additional evidence, this does not give
any help to the plaintiff because the documents of renumbering show that in the year
1985-86 the khasra no.203 was changed into khasra no. 300.
9. Therefore, sale deed executed on 21.05.1981 in respect of khasra no.300 area 8.19
desimal i.e. 3.315 hectare cannot be considered as a part and parcel of khasra no.203 of
which new number 300 was made in the year 1985-86 and there is no document
available on record, which might prove that the khasra no.300 was changed into 203, but
position is just reverse, which is clear from the documents filed along with the
applications under order 41 rule 27 CPC. As such non-disposal of application under
order 41 rule 27 CPC dtd. 31.3.2011 does not raise any substantial question of law.
10. As such, in view of the aforesaid discussion, and further there being no document
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/9/2023
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availabile on record in proof of title of plaintiff over the land in question bearing khasra
no.203 area 0.18 Are, in my considered opinion, learned Courts below have not
committed any illegality in dismissing the suit.
11. Resultantly, the second appeal fails and is hereby dismissed in limine under order
41 rule 11 CPC. However, no order as to costs.
12. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
sh
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 2/9/2023
11:11:40 AM
