Madhya Pradesh High Court
Sukh Sagar Valley vs Vinod Kumar Narula on 17 March, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 2479 of 2022
17th DAY OF MARCH, 2023
Between:-
SUKH SAGAR VALLEY THROUGH BALJINDER SINGH
KHANNA AGED ABOUR 66 YEARS S/O JAGJEET
SINGH KHANNA R/O POLIPATHAR, JABALPUR
(MADHYA PRADESH)
....................................APPELLANT
(BY SHRI GIRISH KUMAR SHIRVASTAVA-ADVOCATE)
AND
1. VINOD KUMAR NARULA S/O LATE HIRANAND
NANARULA, AGED ABOUT 68 YEARS, R/O HOUSE NO.
14/3, MADHUVAN, SHANKAR SHAH NAGAR, RAMPUR
M.P.E.B. DISTRICT JABALPUR (MADHYA PRADESH)
2. SCHEDULED CASTE TRIBE HOUSING
CONSTRUCTION GOVERNMENT COMMITTEE
THROUGH ITS CHAIRMAN SUDHA RASIK W/O SHRI
S.S. RASIK R/O JAI BHEEM GAWRIGHAT ROAD
JABALPUR (MADHYA PRADESH)
......................RESPONDENTS
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/20/2023
11:24:43 AM
2
..........................................................................................................................................
This appeal coming on for admission on this day, the court passed the following:
ORDER
This second appeal has been preferred by appellant/defendant 1 challenging the
judgment and decree dated 25.08.2022 passed by 10th Additional District Judge,
Jabalpur in Civil Appeal No. 45/2021 affirming the judgment and decree dated
27.07.2012 passed by 3rd Additional Judge to the Court of 1st Civil Judge Class-2,
Jabalpur in Civil Suit No. 3-A/2012, whereby learned Courts below have dismissed the
suit of the respondent 1/plaintiff filed for permanent injunction in respect of plot no.159
admeasuring 1500 sq.ft. alleging it to be a part of Khasra Nos. 68/5, 68/7 and 68/8
situated in Mauja Polipathar, Tahsil and District Jabalpur.
2. Learned counsel for the appellant submits that the plaintiff/respondent 1 is not the
owner/bhoomiswami of the plot in question and has failed to prove it to be a part of
Khasra Nos. 68/5 and 68/8. He further submits that there is dispute of
boundaries/demarcation in between the parties and learned Courts below have erred in
relying upon the mutation order passed by Tahsildar on 31.08.2009 in favour of the
plaintiff/respondent 1, which does not confer any title on the plaintiff/respondent 1 and
without proving title by the plaintiff, learned Courts below have erred in granting ex-
parte decree in favour of the plaintiff/respondent 1.
3. He further submits that merely because of the fact that the appellant/defendant 1
was proceeded ex-parte, cannot be a ground to decree the suit because the plaintiff has to
prove his case and cannot be given benefit of any of the weaknesses of the case of the
defendant. However, learned counsel for the appellant submits that his application under
Order 9 Rule 13 CPC (MJC no. 605/2019) was dismissed on 06.07.2019, which attained
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/20/2023
11:24:43 AM
finality on 19.12.2019 due to dismissal of Miscellaneous Civil Appeal No.207/2019 by
15th Additional District Judge, Jabalpur. It is also apparent on record that after dismissal
of miscellaneous civil appeal, defendant 1 preferred regular civil appeal against the ex-
parte judgment and decree dated 27.07.2012. With the aforesaid submissions, learned
counsel for the appellant prays for admission of the second appeal.
4. Heard learned counsel for the appellant and perused the record.
5. Plaintiff had instituted a suit for permanent injunction claiming himself to be
owner of the plot in question on the basis of registered sale deed dated 31.12.1985
executed by defendant 2. Taking several pleas in the written statement, the defendant 1
filed written statement denying title and physical possession of the plaintiff/respondent 1
over the plot in question, but later on the defendant 1 did not appear and was proceeded
ex-parte. Learned trial Court after taking into consideration oral as well as documentary
evidence (Ex.P/1 to Ex.P/7) found the plaintiff/respondent 1 to be in possession of the
plot and by issuing decree of permanent injunction restrained the defendants from
making any interference in possession of the plaintiff/respondent 1 over the suit plot.
6. Although, after passing of the judgment and decree dated 27.07.2012, defendant 1
preferred an application under Order 9 Rule 13 CPC (registered as MJC No.605/2019)
but was dismissed, which has also attained finality on 19.12.2019 due to dismissal of
miscellaneous civil appeal no.207/2019.
7. Upon filing of the regular civil appeal challenging the judgment and decree dated
27.07.2012, learned first appellate Court has also considered the oral as well as
documentary evidence in detail and dismissed the appeal holding the
plaintiff/respondent 1 to be owner and in physical possession of the plot, which is a pure
finding of fact.
8. After perusal of the record and from unrebutted oral and documentary evidence
available on record, in my considered opinion, there is no substantial question of law
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/20/2023
11:24:43 AM
involved in the second appeal, which fails and is hereby dismissed in limine under Order
41 Rule 11 of CPC. However, no order as to costs.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
sh
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/20/2023
11:24:43 AM
