Ashok Kumar vs Smt. Raja Bai
2023 Latest Caselaw 882 MP

                             1                  S.A. No.241/2020



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR

                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 16th OF JANUARY, 2023

                SECOND APPEAL No. 241 of 2020
BETWEEN:-

1.    ASHOK KUMAR S/O LATE HARI
      SHANKAR PUROHIT, AGED ABOUT
      63     YEARS,     OCCUPATION:
      CULTIVATOR    PURANI    BASTI
      KASTURBA WARD, PIPARIYA, TAH.
      PIPARIYA (MADHYA PRADESH)



2.    SURENDRA KUMAR S/O LATE HARI
      SHANKAR PUROHIT, AGED ABOUT
      60     YEARS,      OCCUPATION:
      CULTIVATOR     PURANI    BASTI
      KASTURBA      WARD    PIPARIYA
      TEHSIL    PIPARIYA    (MADHYA
      PRADESH)



3.    SMT.SHOBHA VYAS W/O RAMESH
      VYAS, AGED ABOUT 52 YEARS,
      OCCUPATION: HOUSEWIFE PURANI
      BASTI KASTURBA WARD PIPARIYA
      TEHSIL    PIPARIYA  (MADHYA
      PRADESH)


                                                .....APPELLANTS
(BY SHRI ATULANAND AWASTHI-SENIOR ADVOCATE WITH SHRI ABHAY
TIWARI-ADVOCATE )

AND

1.    SMT. RAJA BAI W/O SHRI KAMLESH
      PATEL, AGED ABOUT 38 YEARS,
                                    2                     S.A. No.241/2020



     BANWARI ROAD, BEHIND FOREST
     OFFICE, BEEJANWADA, PIPARIYA
     (MADHYA PRADESH)



2.   STATE   OF    MP    THROUGH
     COLLECTOR DISTT.HOSHANGABAD
     (MADHYA PRADESH)


                                                       .....RESPONDENTS
      This appeal coming on for admission this day, the court passed the

following:

                              JUDGMENT

This second appeal, under section 100 of CPC, has been filed against the judgment and decree dated 16.10.2019 passed by Second Additional District Judge, Pipariya, District Hoshangabad in Regular Civil Appeal No.8/2017, arising out of the judgment and decree dated 22.12.2016 passed by Additional Judge to the Court of Civil Judge, Class-II, Pipariya, District Hoshangabad in Civil Suit No.13-A/2014, by which the suit filed by the appellants for declaration of tile and permanent injunction has been dismissed.

2. The appellants are legal heir of original plaintiff Suman Bai, who died during the pendency of the suit. The facts, necessary for disposal of the present appeal in short, are that the father of present appellants/plaintiffs had purchased Khasra Nos.224, 225, 226 and 227/1, area 2.433 hectares = 13,000 sq.ft. by a registered sale deed dated 13.01.1965 from Vishnu s/o Dhanraj. After the death of Shri Hari Shankar Purohit, the original plaintiff Suman Bai inherited the property in the year 1978-79 and is in possession of the same. One house and a

well are also constructed in the property. It is the case of the plaintiff that some part of the land was got diverted and same has been sold. Further, the original plaintiff sold 9000 sq.ft. of land forming part of Khasra Nos. 224, 225, 226 and 227/1 to Dr.Anita Sahu by registered sale deed dated 19.06.1990. It was also mentioned that as per the boundaries, the office of Forest department is situated on the east side; whereas the remaining land of the seller is situated on the western side of the plot. On the northern side of plot, there is strip of 5 feet; whereas on the southern side there is a public way.

3. It was further pleaded that the purchaser Dr.(Smt.) Anita Sahu thereafter sold the said plot to the defendant no.1 by registered sale deed dated 01.06.2006 and handed over the possession of the same. Accordingly, the defendant no.1 started raising construction in the year 2014. When the plaintiffs inspected the spot, then it was found that the defendant no.1 has started digging holes and it was found that 5 feet wide and 150 feet long strip, which was not sold has been encroached upon by the defendant no.1 and the holes have been dug in order to raise pillar. In spite of the objections raised by the original plaintiff and the appellant no.1, the defendants continued with their construction. Accordingly, a complaint was made to the police station on 04.08.2014 but since the dispute was of civil in nature, therefore, the police suggested the plaintiff to approach the civil court. Therefore, it was the case of the plaintiff that by encroaching upon a strip, which was 150 feet long and 5 feet wide and was situated between the plot of the plaintiff and the plot of the defendants has been encroached upon by the defendants and thus the suit was filed for demolishing the encroachment done by defendant no.1 as well as to handover the vacant possession of

the same to the plaintiff and a permanent injunction.

4. The defendant no.1 filed the written statement and denied the plaint averments. The sale of the disputed plot to Anita Sahu was accepted and all the other remaining plaint averments were denied. It was denied that the defendant no.1 has encroached upon the strip of 5 feet wide and 150 feet long, which was left open between the plot in question and the land of the plaintiffs. It was claimed that the defendant no.1 is raising construction on the land, which was purchased by her. The construction was raised in the month of April, 2013. In fact it was specifically pleaded that 5 feet wide and 150 feet long strip, which was left between the plot of plaintiff and the defendant no.1 has been encroached upon by the plaintiff himself and has constructed the boundary wall after including the said strip in their land. Thus, in nutshell, the defence of the defendant no.1 was that in fact it is the plaintiff, who has encroached upon the strip of 5 feet wide and 150 feet long.

5. It appears that the trial court appointed a Commissioner. A Commissioner report was also submitted. However, the Commissioner did not try to verify the area which was in possession of the plaintiff and merely on the ground that there was no vacant place between the plot of the defendant no.1 and the plot of appellant no.1 submitted a report that the defendant no.1 has encroached upon the land in question. However, the demarcation report was not accepted by the trial court and the trial court dismissed the suit by holding that the plaintiffs have failed to prove that the defendant no.1 has encroached upon 5 feet wide and 150 feet long strip, situated between the plots of plaintiffs and defendant

no.1.

6. Being aggrieved by the judgment and decree passed by the Court below, the appellants preferred an appeal, which too has been dismissed.

7. Challenging the judgments and decrees passed by the courts below, it is submitted by the learned counsel for the appellants that the courts below have committed a material illegality by rejecting the report submitted by the Commissioner. It is the case of boundary dispute, which could have been resolved by appointing the Commissioner. Once a Commissioner was appointed, then his report should not have been rejected on flimsy grounds. The trial court as well as the appellate court failed to see that the strip of 5 feet wide and 150 feet long was never transferred by the appellants to Smt.Anita Sahu, who in her turn sold the same to defendant no.1 and both the courts below have recorded erroneous findings of fact and accordingly proposed the following substantial questions of law :-

"(i) Whether, the courts below were right in dismissing the suit of the plaintiffs appellants whereas even the Commissioner's report submitted by the revenue authorities substantiated the case of the plaintiffs/appellants ?

(ii) Whether, on the basis of certain documents filed by the defendants, i.e. some tax receipts of the Municipal Council and the map for construction where it gives right to the defendant to own the property which does not belong to the defendant and for which whether the plaintiff can be non- suited ?

(iii) Whether the report submitted by the revenue

Inspector does not keep any value under the circumstances of the case whereas it has been fully established that the land in suit belongs to the plaintiff and was never transferred to the defendant in any manner by the plaintiff or his successors ?

(iv) Whether under the facts and circumstances of the case, the courts below were right in dismissing the suit of the plaintiff/appellant and the findings arrived at by the courts below are perverse ?"

8. Heard the learned counsel for appellants.

9. From the pleadings of the parties, it is clear that it is a pure dispute regarding boundaries. Neither the defendants have claimed any ownership in the property belonging to the plaintiff nor the plaintiff has done so. Thus, in the light of the judgment delivered by the Supreme Court in the case of Haryana Waqf Board Vs. Shanti Sarup and others, reported in (2008) 8 SCC 671 as well as the judgment delivered by a Coordinate Bench of this Court in the case of Jaswant s/o Kashi Ram Yadav Vs. Deen Dayal, reported in 2011(2) MPLJ 576, it is appropriate to appoint a Commissioner where the dispute is purely a boundary dispute. In the present case, the trial court had appointed a Commissioner. The Commissioner reports are Ex.P.1 and Ex.P.9. This Court has gone through the report of the Commissioner and found that the Commissioner had given a one-sided report. Merely because there was no open space between the plot of the plaintiff and the defendant no.1, the report was given that the defendant has encroached upon the vacant strip. However, the defence of the defendant no.1 was that in fact it is the plaintiff, who encroached upon the vacant strip of 5 feet wide and 150 feet long and has extended the boundary wall. Thus, it was obligatory on the part of the Commissioner to find out as to whether

the plaintiff is in possession of his own land or has encroached upon the said strip of 5 feet wide and 150 feet long but that was not done by the local commissioner. The trial court had rejected the report submitted by the local Commissioner. Even then the appellants did not move any application before the appellant court for appointment of Commissioner afresh for demarcation of the land in possession of the appellants as well as in possession of defendant no.1. Even in the present appeal, no such application has been filed. Thus where a local Commissioner was appointed and no proper report was received, then the only option available to the Court was to adjudicate the dispute on the basis of evidence led by the parties.

10. Both the courts below have recorded a concurrent findings of fact that the defendant no.1 has not encroached upon the vacant strip of 5 feet wide and 150 feet long. It is well established principle of law that this Court, while deciding a second appeal under section 100 of CPC, cannot reverse the findings of fact unless and until they are found to be perverse or contrary to record. It is not the case of the appellants that inadmissible evidence has been considered by the courts below.

11. As no substantial question of law arises in the present appeal, therefore, this Court is of the considered opinion that this appeal sans merits.

12. Ex consequenti, the judgment and decree dated 16.10.2019 passed by Second Additional District Judge, Pipariya, District Hoshangabad in Regular Civil Appeal No.8/2017 as well as judgment and decree dated 22.12.2016 passed by Additional Judge to the Court of Civil Judge, Class-II, Pipariya, District Hoshangabad in Civil Suit

No.13-A/2014 are hereby affirmed.

13. The appeal fails and is hereby dismissed in limine.

(G.S. AHLUWALIA) JUDGE

TG/-

TRUPTI GUNJAL 2023.01.19 13:56:39 +05'30'