Madhya Pradesh High Court
Harish Chandra Sharma vs Municipal Corporation on 22 June, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22 nd OF JUNE, 2023
SECOND APPEAL No. 1039 of 2010
BETWEEN:-
1. HARISH CHANDRA SHARMA S/O LATE
D.P.SHARMA, AGED ABOUT 65 YEARS, H.NO. 5,
BAL NIKETAN, KAMALI MANDER ROAD,
BHOPAL
2. MADAN SINGH S/O LATE MOHAN SINGH, AGED
ABOUT 51 YEARS, H.NO.17 BAL NIKETAN KAMALI
MANDER ROAD BHOPAL (MADHYA PRADESH)
3. SURENDRA KUMAR CHAURE ( D) TH.LRS.
ANURAG CHAURE S/O LATE SURENDRA KUMAR
CHAURE, AGED ABOUT 27 YEARS, BAL NIKETAN
KAMALI MANDIR, BHOPAL (MADHYA PRADESH)
4. SMT. BASANTI BAI W/O LATE CHHANNU LAL,
AGED ABOUT 68 YEARS, H.NO.10, BAL NIKETAN,
KAMALI MANDER ROAD BHOPAL (MADHYA
PRADESH)
5. SMT. RUKMANI DEVI W/O LATE CHHILESHWAR
NATH OJHA, AGED ABOUT 63 YEARS, H.NO.12,
BAL NIKETAN KAMALI MANDER ROAD BHOPAL
(MADHYA PRADESH)
6. NARENDRA TRIVEDI S/O LATE BABU LAL
TRIVEDI, AGED ABOUT 37 YEARS, H.NO.14 BAL
NIKETAN KAMALI MANDER ROAD BHOPAL
(MADHYA PRADESH)
7. ARJUN SINGH KUSHWAHA S/O SHAMBHUDAYAL,
AGED ABOUT 39 YEARS, H.NO.15 BAL NIKETAN
KAMALI MANDER ROAD BHOPAL (MADHYA
PRADESH)
8. SHYAM LAL DUBE S/O LATE KALURAM DUBE,
AGED ABOUT 78 YEARS, H.NO. 20 BAL NIKETAN
KAMALI MANDER ROAD BHOPAL (MADHYA
PRADESH)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 6/24/2023
11:55:34 AM
2
9. RAM DAYAL S/O RAM PRASAD, AGED ABOUT 48
YEARS, H.NO.4 BAL NIKETAN KAMALI MANDER
ROAD BHOPAL (MADHYA PRADESH)
10. HARI BABU PAL S/O PZAG SINGH, AGED ABOUT 63
YEARS, H.NO.3 BAL NIKETAN KAMALI MANDER
ROAD BHOPAL (MADHYA PRADESH)
11. JAGDISH PRASAD SHARMA S/O LATE NARBADA
PRASAD, AGED ABOUT 48 YEARS, H.NO.7 BAL
NIKETAN KAMALI MANDER ROAD BHOPAL
(MADHYA PRADESH)
12. D.P. BHATTA S/O LATE D.P. BHATTA, AGED ABOUT
61 YEARS, H.NO.11 BAL NIKETAN KAMALI
MANDER ROAD BHOPAL (MADHYA PRADESH)
13. VITTHAL DAS SHARMA S/O LATE MANGI LAL
SHARMA, AGED ABOUT 73 YEARS, H.NO.13 BAL
NIKETAN KAMALI MANDER ROAD BHOPAL
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI DINESH SINGH CHOUHAN - ADVOCATE)
AND
1. MUNICIPAL CORPORATION THROUGH ITS
COMMISSIONER, SADAR MANZIL BHOPAL
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, THROUGH ITS
COLLECTOR, COLLECTOR OFFICE, OLD
SECRETARIATAT BHOPAL (M P)
3. BAL NIKETAN TRUST, HAMIDIA ROAD, BHOPAL,
THROUGH ITS PRESIDENT KAILASH AGRAWAL,
SON OF NOT KNOWN, ADULT, BAL NIKETAN
TRUST.
.....RESPONDENTS
(BY SHRI RAMJI PANDEY - GOVERNMENT ADVOCATE FOR THE
STATE/RESPONDENT 2 AND SMT. SHOBHA MENON - SENIOR ADVOCATE
ASSISTED BY SHRI B.D.S. BEDI - ADVOCATE FOR RESPONDENT -3 )
This appeal coming on for final hearing this day, the court passed the
following:
JUDGMENT
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 6/24/2023
11:55:34 AM
This second appeal has been preferred by the appellants/plaintiffs
challenging the judgment and decree dated 27.07.2010 passed by 1st Additional
Judge to the Court of 1st Additional District Judge, Bhopal in RCA
No.163A/2009, affirming the judgment and decree dated 17.07.2009 passed by
2nd Civil Judge Class-I, Bhopal in RCS No.206-A/2008, whereby suit filed by
the appellants/plaintiffs for declaration and injunction to the effect that the
defendants be restrained from dispossessing the plaintiffs and demolishing the
suit houses without due process of law and that the act of defendants be
declared illegal, has been dismissed.
2. On 01.10.2014, this second appeal was admitted for final hearing on the
following substantial questions of law:
"1. Whether the appellants were not entitled to injunction despite there
being concurrent finding of the two courts below that they are in possession of
the suit property ?.
2. Whether in the facts and circumstances of the case, the finding of
the Courts below that the appellants are not entitled to claim declaration that
they are owner of the property is justified ?."
3. Learned counsel for the appellants by inviting attention of this Court to
para 16 of the impugned judgment dated 27.07.2010 passed by first appellate
Court submits that although all the plaintiffs have not been found to be tenant in
the suit property, but some of the plaintiffs have been found in possession of
the suit property but the suit has been dismissed on the ground that the
defendants are not dispossessing the plaintiffs forcibly and the proceedings
started by Municipal Corporation, Bhopal being in accordance with law, the
defendants cannot be restrained by decree of permanent injunction. He submits
Signature Not Verified
that the plaintiffs are still in possession of the suit property and are entitled for
Signed by: PRASHANT
BAGJILEWALE
Signing time: 6/24/2023
11:55:34 AM
decree in their favour, however in view of the findings recorded in para 16 of
the judgment passed by first appellate Court, learned counsel for the
appellants/plaintiffs prays for withdrawal of this second appeal with liberty to
file fresh suit on the basis of fresh cause of action, if any, arises to the plaintiffs.
4. Learned Senior counsel for the respondent 3 vehemently opposed the
prayer made on behalf of the appellants/plaintiffs and submits that the
appellants/plaintiffs being not in possession of the suit property, are not entitled
to file suit even on the basis of fresh cause of action because the entire
construction has already been removed and there is an open land. As such,
prays for dismissal of the appeal.
5. Heard learned counsel for the parties and perused the record.
6. Learned trial Court vide its judgment and decree dated 17.07.2009 held that
the plaintiffs are neither tenants nor in possession of the suit property, however,
learned first appellate Court while confirming the findings of learned trial Court,
has made some observations in para 16 of its impugned judgment holding that
some of the plaintiffs appear to be in possession in the suit property but they
are not being dispossessed forcibly by the defendants and the proceedings
undertaken by the Municipal Corporation, Bhopal are in accordance with law.
As such in view of the findings recorded by learned Courts below, in my
considered opinion, the substantial questions of law framed by this Court do
not arise in this second appeal.
7. However, in view of the findings recorded by learned first appellate Court in
para 16 of the impugned judgment and in view of the prayer made on behalf of
the appellants/plaintiffs, this second appeal is permitted to be withdrawn with
liberty to them to file fresh suit on the basis of fresh cause of action, if any,
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 6/24/2023
11:55:34 AM
available to the plaintiffs.
8. Consequently, this second appeal is dismissed as withdrawn with the
aforesaid liberty.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 6/24/2023
11:55:34 AM
