Umesh Kumar Shrivastava vs Bam Mahadeo
2023 Latest Caselaw 2407 MP

                                                             1
                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                    BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 10 th OF FEBRUARY, 2023
                                               SECOND APPEAL No. 646 of 2021

                          BETWEEN:-
                          UMESH      KUMAR    SHRIVASTAVA    S/O  SHRI
                          RAGHUNANDAN PRASAD SHRIVASTAVA, AGED ABOUT
                          62 YEARS, OCCUPATION: SECRETARY SHARADANCHAL
                          SOCIETY BANDHAVGARH SOCIETY SATNA R/O
                          BANDHAVGARH COLONY VILLAGE KOLGAWAN TEH.
                          RAGHURAJNAGAR (MADHYA PRADESH)

                                                                                           .....APPELLANT
                          (BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE ASSISTED BY SHRI
                          SHUBHAM MISHRA - ADVOCATE)

                          AND
                          BAM    MAHADEO   S/O   SHRI  SHISHYA SWAMI
                          NEELKANTH JI MAHARAJ, AGED ABOUT 67 YEARS,
                          OILA ASHARAM MAIHAR PS AND TEH. MAIHAR
                          (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                          (BY SHRI SAKET MALIK - ADVOCATE )

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

                          following:
                                                              ORDER

This second appeal has been preferred by plaintiff challenging the judgment and decree dated 17.02.2021 passed by 1st Additional District Judge Maihar, District Satna, in civil appeal no.22-A/19 affirming the judgment and decree dated 18.09.2019 passed by Additional Judge to the Court of Civil Judge Class-I Maihar, District Satna in civil suit no.57-A/2017, whereby suit filed by the plaintiff/appellant for declaration of title and permanent injunction Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/14/2023 1:37:11 PM

has been dismissed by learned Courts below.

2. The suit in question was filed by plaintiff for declaration of title and permanent injunction in respect of suit property alleging it to be part of Khasra nos. 293, 294, 302 and 303 situated in Village Bailakhas, Tahsil Maihar, District Satna for declaring him to be tenant and permanent injunction was sought against the defendant from making interference in possession of the plaintiff.

3. Learned Courts below after having considered entire material available on record held that the plaintiff is not tenant in the suit property and is also not in possession of it in any capacity and vide judgment and decree dated 18.09.2019 dismissed the suit, which in appeal has been affirmed by first

appellate Court vide judgment and decree dated 17.02.2021.

4. After arguments at length, learned Senior counsel for the appellant/plaintiff concedes that at present, the plaintiff is not in possession of the suit property and has not paid rent till date. However, he submits that the learned Courts below have erred in dismissing the suit filed for declaration of title and permanent injunction.

5. Learned counsel for the respondent/defendant supports the impugned judgment and decree passed by learned Courts below.

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

7. The plaintiff came with the case that he is in possession of the suit property as a tenant and is paying rent to the defendant, but no document has been placed on record showing payment of upto date rent. As such and in view of the concurrent findings of possession recorded by learned Courts below and further in view of admission of learned counsel for the appellant regarding physical possession over the suit property, in my considered opinion, learned Courts below have not committed any illegality in dismissing the suit. Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/14/2023 1:37:11 PM

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

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

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 2/14/2023 1:37:11 PM