Hizbul Rahman @ Chote Miya vs Saiyyad Taahir
2023 Latest Caselaw 3999 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                               ON THE 14 th OF MARCH, 2023
                                             SECOND APPEAL No. 617 of 2018

                          BETWEEN:-
                          HIZBUL RAHMAN @ CHOTE MIYA S/O LATE SHRI
                          ABDUL MANAN, AGED ABOUT 55 YEARS, MASJID
                          KAMNI GIRAN BEHIND TABBA MIYA MAHAL KOTWALI
                          BHOPAL (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (BY SHRI UTTAM MAHESHWARI-ADVOCATE)

                          AND
                          1.    SAIYYAD TAAHIR S/O SHRI HAKEEM AKHTAR,
                                AGED    ABOUT  30   YEARS, H.NO.32/2 HAJI
                                LASSIVALI GALI ITWARA ROAD, BHOPAL
                                (MADHYA PRADESH)

                          2.    ABDUL LATIF S/O SHRI ABDUL RAHMAN, AGED
                                ABOUT 57 YEARS, R/O H.NO.4, NEAR MASJID
                                KAMNI GIRAN BEHIND TABBA MIYA MAHAL,
                                KOTWALI (MADHYA PRADESH)

                                                                                     .....RESPONDENTS


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

This second appeal has been filed by the appellant/defendant 2 challenging the judgment and decree dated 12.12.2017 passed by 20th Additional District Judge, Bhopal in civil appeal No.100207/2015, reversing the judgment and decree dated 28.08.2014 passed by 9th Civil Judge Class-I, Bhopal in civil suit No.617-A/2013, whereby learned trial court dismissed the Signature Not Verified Signed by: SWETA SAHU Signing time: 3/15/2023 5:04:34 PM

suit filed by the respondent 1/plaintiff for declaration of title and permanent injunction in respect of the house property admeasuring 250 sqft., which has been decreed by the first appellate court.

2. Learned counsel for the appellant/defendant 2 submits that the disputed property being joint property of the appellant/defendant 2 and defendant 1 and there being no partition of it, could not have been sold by defendant 1-Abdul Latif exclusively and learned court below has erred in placing burden of proof on the shoulders of defendant 2 to prove that it was joint property, whereas it was for the respondent 1/plaintiff and defendant 1 to prove that it was exclusively owned and possessed by defendant 1. He further

submits that the appellant/defendant 2 is in possession of the suit property but the learned court has erred in holding the respondent 1/plaintiff to be in possession on the basis of sale deed dated 23.02.2013 (Ex.P/1) executed by respondent 2/defendant 1-Abdul Latif. Accordingly, he prays for admission of the second appeal.

3. Heard learned counsel for the appellant and perused the record.

4. Execution of sale deed by defendant 1-Abdul Latif in favour of plaintiff-Saiyyad Taahir is not in dispute. Upon filing the civil suit on 17.06.2013, on the basis of sale deed dated 23.02.2013, the appellant/defendant 2 neither filed counter claim nor instituted any suit to challenge the sale deed and despite availability of sufficient opportunities, has not come in the witness box to prove the contentions raised in the written statement and he has also not offered himself to be cross-examined by the plaintiff/respondent 1. As such, it cannot be said that the defendant 2/appellant has discharged his initial burden.

5. Learned first appellate court after appreciating entire oral and documentary evidence and on the basis of sale deed dated 23.02.2013, has held Signature Not Verified Signed by: SWETA SAHU Signing time: 3/15/2023 5:04:34 PM

that the respondent 1/plaintiff is owner and in possession of the disputed house and has restrained the defendant 2 from making any interference in possession of the plaintiff, which being pure finding of fact is not liable to be interfered with in the second appeal.

6. Resultantly, there being no substantial question of law involved in the second appeal, the same deserves to be and is hereby dismissed in limine under Order 41 Rule 11 CPC. However, no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 3/15/2023 5:04:34 PM