Uttamchand Yadav vs Krishnakant Shukla
2023 Latest Caselaw 5228 MP

                         1                    S.A.No.1173/2018



IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 29th OF MARCH, 2023
             SECOND APPEAL No. 1173 of 2018
BETWEEN:-

1.   UTTAMCHAND YADAV S/O
     NATHURAM         YADAV,
     AGED ABOUT 54 YEARS,
     MADHUKAR SHAH WARD,
     SAGAR, TEH. AND DISTT.
     (MADHYA PRADESH)

2.   SMT. SHEELA YADAV W/O
     UTTAMCHAND       YADAV,
     AGED ABOUT 52 YEARS,
     MADHUKAR SHAH WARD,
     SAGAR, TEH. AND DISTT.
     (MADHYA PRADESH)

3.   ROOPKISHORE     SHARMA
     S/O TEEKARAM SHARMA,
     AGED ABOUT 75 YEARS,
     MADHUKAR SHAH WARD,
     SAGAR, TEH. AND DISTT.
                                 2                        S.A.No.1173/2018




     (MADHYA PRADESH)

4.   SMT. GAYATRI BAI W/O
     ROOPKISHORE          SHARMA,
     AGED ABOUT 72 YEARS,
     MADHUKAR SHAH WARD,
     SAGAR, TEH. AND DISTT.
     (MADHYA PRADESH)

                                                        .....APPELLANT

(BY SHRI JANAK LAL SONI - ADVOCATE)
AND

KRISHNAKANT SHUKLA S/O
UMAKANT         SHUKLA,       AGED
ABOUT 51 YEARS, MADHUKAR
SHAH         WARD,    MANORAMA
COLONY ROAD, SAGAR, TEH.
AND          DISTT.      (MADHYA
PRADESH)

                                                     .....RESPONDENTS

(BY SHRI RAJESH KUMAR PATEL - ADVOCATE FOR RESPONDENT
NO.1)


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

following:
                                3                         S.A.No.1173/2018



                           JUDGEMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 06.04.2018 passed by 3rd Additional District Judge, Sagar in Civil Apeal No.02/2018 arising out of the judgment and decree dated 30.11.2017 passed by 2nd Additional Civil Judge, Class-1 to the Court of 1st Civil Judge, Class-1, Sagar in Civil Suit No.16-A/2014.

2. The appellants are the plaintiffs who have lost their case from both the Courts below.

3. The facts necessary for disposal of the present appeal, in short are that the plaintiffs filed a suit for declaration of title and permanent injunction on the ground that the house of the plaintiff is situated in Madhukar Shah Ward, Sagar. The house in question was purchased by the plaintiffs from the defendants, which was situated on the eastern side of their property. The plaintiff after purchasing the property constructed his house and got his name mutated in the record of the Municipal Corporation, Sagar. Total 290 Sq.ft. land was purchased by the plaintiffs by a registered sale deed dated 10.08.1999 for a consideration of amount Rs.23,200/-. The said land was purchased jointly by 10 persons. It was claimed that the defendants by opening a door on the western side of his wall, is trying to enchroach upon the land purchased by the plaintiff. Earlier, the defendants had filed a suit against the plaintiffs, which was registered as Civil Suit No.36-A/2012 for declaration of title and permanent injunction, which

was ultimately dismissed for want of prosecution on 16.08.2013. The defendants have opened a door on the western side of their wall and is trying to use the land purchased by the appellants and it was claimed that the plaintiffs have no land on the western side of their house. Accordingly, the suit was filed for declaration of title and permanent injunction.

4. The defendant filed his written statement and denied the plaint averments. It was claimed that since the 10 persons did not have any place to approach to the government land, therefore at the request of the respectable members of the society, the defendant executed a sale deed in respect of 290 Sq.ft. land in favour of 10 persons without any consideration amount but it was claimed that consideration amount was falsely shown in the sale deed otherwise the execution of the sale deed without any consideration amount was not possible. The contention of the plaintiffs that they had purchased the place in dispute was denied. The defendants had filed a suit, which was dismissed in default but denied that thereafter, he has opened a door but claimed that the place of door was changed. It was denied that the defendant is trying to use the disputed property for Nistar purposes.

5. The trial Court after framing issues and recording evidence dismissed the suit by holding that the plaintiffs have failed to prove that they are owner and in possession of the passage in dispute and it was also held that the plaintiffs have failed to prove that the defendant has wrongly opened the door on the western side of his house. The plaintiffs have also failed to prove that defendant has no right to use

the passage for Nistar purposes and the suit is not barred by principle of Res-judicata.

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

7. Challenging the judgment and decree passed by the Courts below, it is submitted that the Courts below have wrongly held that suit is bad for non-joinder of necessary parties. The defendant has no right to cause any obstruction in use and enjoyment of property, which was purchased by the appellants and other purchasers. The defendant has failed to prove that he had validly acquired title over the land in dispute and proposed the following substantial questions of law:-

"(i) Whether to seek a decree for injunction restraining the defendant from putting a door on the western side wall of the defendant's house and to forcibly trying to use & enjoy the land of the plaintiff Gayatri Sharma and other 9 joint purchasers, those 9 joint purchasers are necessary party to the suit and non-joinder of them, suit is bad?

(ii) Whether the suit by the plaintiff/appellants seeking a decree for declaration that the sale deed in favour of defendant alleged to have been executed by Mathura Bai is bad for non- joinder of all co-owners in respect of the suit property?

(iii) Whether the Courts below committed error of fact and law wrongly held that the plaintiff/appellants failed to establish title to the suit land, which admittedly purchased by the plaintiff Gayatri Sharma

along with 9 joint purchasers by registered sale deed dated 10.08.1999 from the defendant?

(iv) Whether the learned Courts below committed error of fact and law when defendant admitted transfer of suit land by him to the plaintiff Gayatri Sharma and other 9 joint purchasers without reserving any right to use or enjoy that particular land for any purpose, the Courts below ought to have been granted injunction against the defendant from use & enjoy of the suit land by the defendant?

(v) Whether the Courts below committed error of fact and law wrongly held that the defendant/respondent has not put a gate on his western wall shown in the plaint map by letters A,B,C, and D when the defendant/respondent admittedly put a gate on his western wall?

(vi) Whether the findings of the learned Courts below are illegal and perverse, deserves to be set aside?"

8. Heard the learned counsel for the appellant.

9. It is the contention of the appellant that in fact the passage in dispute was purchased by 10 persons for approaching the public road and therefore, the defendant has no right to open a door towards the common passage. The passage in question was jointly purchased by 10 persons i.e. Smt. Gayatri Sharma, Shri Ramavtar Mishra, Shri F.L. Gautam, Shri Chandra Shekhar, Shri R.C. Mishra, Shri Om Hari Gautam, Smt. Susheela Chanpuriya, Shri Ram Kumar, Shri Ram Shankar Pandey and Keshav Raikwar. The plaintiffs No. 1, 2 and 3 are not the purchasers, whereas the plaintiff No.4 is purchaser but she did not appear in witness box.

10. Thus, it is clear that the persons who had purchased the passage are either not the party to the suit or the appellant No.4 who was one of the joint purchaser did not enter in the witness box. The appellant No. 1, 2 and 3 have no right or title in the property in dispute as they have not purchased the said land by a registered sale deed. It is the case of the defendant that 290 Sq.ft. land was alienated with a condition that the same shall be also used by his family. Even, the plaintiff witness-Roopkishore and Suresh Ladhiya in their cross- examination have admitted that the defendant had not opened the door on the western side of his house and Pradeep Gautam has admitted that a window has been opened whereas Uttam has denied that after the dismissal of the suit filed by the defendant, the door was opened on the western side. Thus, even otherwise, evidence of the plaintiff witness is shaky. The plaintiff had also sought declaration that the sale deed, which was executed by Mathura Bai in favour of the defendant on 27.02.2014 be also declared as null and void but Mathura Bai was not impleaded as a party. The plaintiffs had no right or title in the property belonging to Mathura Bai, therefore, the suit for declaration of the sale deed of the defendant on the ground that sale deed was executed on the basis of forged power of attorney is bad in law on account of non- joinder of necessary party. Further the plaintiffs No. 1 to 3 have no right or title in the property in question.

11. Under these circumstances, this Court is of the considered opinion that the Courts below did not commit any mistake by dismissing the suit.

12. As a consequence thereof, the judgment and decree dated 06.04.2018 passed by 3rd Additional District Judge, Sagar in Civil Appeal No.02/2018 as well as judgment and decree dated 30.11.2017 passed by 2nd Additional Civil Judge, Class-1 to the Court of 1st Civil Judge class-1 in Civil Suit No.16-A/2014 are hereby affirmed.

13. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE vinay* Digitally signed by VINAY KUMAR BURMAN Date: 2023.04.05 16:10:12 +05'30'