Satish Namdeo vs Sanjay Kumar Namdeo
2023 Latest Caselaw 4082 MP

                                                            1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                               ON THE 15 th OF MARCH, 2023
                                             SECOND APPEAL No. 1500 of 2017

                          BETWEEN:-
                          1.    SATISH NAMDEO S/O JOGILAL NAMDEO, AGED
                                ABOUT 38 YEARS, SHIVAJI WARD KANDELI,
                                NARSINGHPUR TAH AND DISTT. (MADHYA
                                PRADESH)

                          2.    HARISH KUMAR    NAMDEO S/O JOGILAL
                                NAMDEO, AGED ABOUT 36 YEARS, R/O SHIVAJI
                                WARD   KANDELI   NARSINGHPUR     TAHSIL
                                NARSINGHPUR (MADHYA PRADESH)

                                                                                         .....APPELLANT
                          (BY SHRI G.S. BAGHEL-ADVOCATE)

                          AND
                          1.    SANJAY KUMAR NAMDEO S/O NANHELAL
                                NAMDEO, AGED ABOUT 39 YEARS, AKHADI
                                MOHALLA, MAJHAR KE PASS, SHIVAJI WARD
                                NARSINGHPUR (MADHYA PRADESH)

                          2.    PRADEEP KUMAR NAMDEO S/O NANHELAL
                                NAMDEO, AGED ABOUT 35 YEARS, R/O AKHADI
                                MOHALLA, MAJHAR KE PASS SHIVAJI WARD
                                NARSINGHPUR TEHSIL NARSINGHPUR (MADHYA
                                PRADESH)

                                                                                      .....RESPONDENTS


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

This second appeal has been preferred by appellants/plaintiffs challenging

the judgment and decree dated 03.08.2017 passed by 1st Additional District Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 3/17/2023 5:58:01 PM

Judge, Narsinghpur in Civil Appeal no. 6-A/2015 affirming the judgment and

decree dated 27.02.2015 passed by 3rd Civil Judge Class-II, Narsinghpur in Civil Suit no. 22-A/2014, whereby learned Courts below have dismissed the suit of the appellants/plaintiffs filed for recovery of possession of a room admeasuring 208 sq.ft. as described in the plaint map as well as for mesne profits of Rs.500/- per month.

2. Learned counsel for the appellants/plaintiffs submits that the suit was filed on the basis of registered Will dated 02.01.1984 (Ex.P/6) executed by grandmother of plaintiffs namely Smt. Kasturibai, which was proved by adducing evidence of scribe and one of the attesting witnesses Vipin (PW-6) but the learned

Courts below have failed to consider their testimony in real perspective. He submits that the defendants are also claiming title through the same Will, therefore, nothing could have been said adverse to the Will by learned Courts below. He further submits that the defendants being licensee of the disputed room, the plaintiffs were entitled for decree of possession. With the aforesaid submissions, learned counsel for the appellants prays for admission of the second appeal.

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

4. Both the Courts below have after due appreciation of oral and documentary evidence held that the Will (Ex.P/6) has not been proved by the plaintiffs and the testimony of witnesses in respect of proof of Will, itself has created suspicion about the execution of Will. Learned Courts below have also pointed out several discrepancies/contradictions in the statement of attesting witness of Will, Vipin.

5. After perusal of the statements of witnesses including attesting witness, Vipin (PW-6), findings recorded by learned Courts below do not appear to be illegal Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 3/17/2023 5:58:01 PM

or perverse. Even otherwise, the suit has been filed only for possession of room and no relief of declaration of title has been prayed in the plaint, which in presence of dispute of title of the plaintiffs, was necessary, as has been held by Supreme Court in the case of Anathula Sudhakar Vs.P. Buchi Reddy (Dead) By Lrs and others (2008) 4 SCC 594.

6. In view of the aforesaid discussion, in the considered opinion of this Court, no substantial question of law is involved in the present second appeal. Resultantly, the second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 of CPC.

7. However, no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 3/17/2023 5:58:01 PM