Ramsundar Lohar vs Siyasharan Nai
2023 Latest Caselaw 2931 MP

                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                                                 ON THE 17th OF FEBRUARY, 2023

                                                SECOND APPEAL No. 734 OF 2020

                          BETWEEN:-

                          RAMSUNDAR        LOHAR         S/O
                          SHARADADEEN LOHAR, AGED ABOUT
                          51      YEARS,        OCCUPATION:
                          AGRICULTURE R/O VILL. MAU TEH.
                          RAMPUR NAIKIN DIST. SIDHI (MADHYA
                          PRADESH)

                                                                                      ...................APPELLANT
                          (BY SHRI KRISHNA PRATAP SINGH - ADVOCATE)

                          AND
                                                                         \
                          SIYASHARAN NAI S/O SHRI
                          BEERBALI NAI, AGED ABOUT 59
                          YEARS, R/O VILL. MAU TEH.
                          RAMPUR NAIKIN DIST. SIDHI
                          (MADHYA PRADESH)

                                                                                      .................RESPONDENT
                          -----------------------------------------------------------------------------------------------
                                This appeal coming on for admission this day, the court passed the
                          following:
                                                         ORDER

This second appeal has been preferred by appellant/defendant

Ramsundar Lohar challenging the judgment and decree dated 05.12.2019,

passed by II Additional District Judge, Link Court Rampur Naikin,

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 2/22/2023 12:53:05 PM

District Sidhi in Civil Appeal No.15-A/2018, reversing the judgment and

decree dated 25.04.2018 passed by Civil Judge Class I, Rampur Naikin,

District Sidhi, in Civil Suit No.3-A/2017 whereby learned trial Court

dismissed the suit filed simplicitor for permanent injunction in respect of

part of land bearing in khasra no.1082 area 0.06 hectare situated in

Village Mau, Tahsil Rampur Naikin, which in appeal has been decreed

and decree of permanent injunction has been granted.

2. It is pertinent to mention here that the counter claim for declaration

of title was also filed by the appellant/defendant, which was dismissed by

learned trial Court and dismissal of counter claim attained finality due to

no challenge to the same by the defendant.

3. By placing a copy of plaint bearing civil suit no.137-A/2019,

learned counsel submits that even before passing of the impugned

judgment and decree dated 05.12.2019 passed by first appellate Court, the

plaintiff Siyasharan Nai had instituted a suit for restoration of possession

as well as for compensation in respect of the same property, regarding

which the impugned judgment and decree dated 05.12.2019 has been

passed. He submits that the plaintiff did not bring this fact of filing fresh

suit into the knowledge of first appellate Court before passing of the

judgment and decree dated 05.12.2019. Accordingly, he prays for

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 2/22/2023 12:53:05 PM

admission of this second appeal with the contention that the plaintiff is

not in possession of the suit property and is not entitled for decree of

permanent injunction.

4. Heard learned counsel for the appellant/defendant and perused the

record.

5. From perusal of the copy of plaint (civil suit no.137-A/2019) it

appears that the land in question, in the second suit for possession, is the

same regarding which impugned decree of permanent injunction has been

granted on 05.12.2019 by first appellate Court.

6. However, second suit has been filed for recovery of possession and

compensation on the basis of title, therefore, now nothing remains to be

decided in the present second appeal filed against the judgment and

decree passed in the suit for injunction and no substantial question is

involved in the second appeal.

7. As such declining interference in the impugned judgment and

decree, it is hereby observed that the impugned judgment and decree

dated 05.12.2019, passed by first appellate Court in civil appeal no. 15-

A/2018, shall remain subject to final outcome of the later civil suit No.

137-A/2019.

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 2/22/2023 12:53:05 PM

8. Accordingly, this second appeal is disposed off, without any order

as to costs.

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

(DWARKA DHISH BANSAL) JUDGE

[email protected]

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 2/22/2023 12:53:05 PM