Dasrath vs Smt.Bittan Bai & Ors.
2023 Latest Caselaw 19181 MP

IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                       BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
          SECOND APPEAL NO.859 OF 1999
BETWEEN:-

DASRATH S/O RAMDAYAL MEITHIL(DEAD)
THROUGH LRS :-

1(A)   LAXMI MAITHIL W/O LATE SHRI
       DASRATH MAITHIL, AGED 60 YEARS,

1(B)   RAMPHAL MAITHIL SON OF LATE
       SHRI DASRATH MAITHIL, AGED
       ABOUT 42 YEARS.

1(C)   MAHESH MAITHIL SON OF LATE
       SHRI DASRATH MAITHIL, AGED
       ABOUT 40 YEARS.

1(D)   NARESH MAITHIL SON OF LATE
       SHRI DASRATH MAITHIL, ADULT

1(E)   HARESH MAITHIL SON OF LATE
       SHRI DASRATH MAITHIL, AGED
       ABOUT 27 YEARS.

1(F)   RUPALI MAITHIL DAUGHTER OF
       LATE SHRI DASRATH MAITHIL,
       AGED ABOUT 20 YEARS,

       APPELLANTS NO.1(A) TO 1(F) ALL
       RESIDENTS OF JAMANI ROAD
       PAYASA NAGAR,     OLD   ITARSI,
       DISTRICT HOSHANGABAD (M.P)

1(G)   SHYAM MAITHIL SON OF LATE SHRI
       DASRATH MAITHIL, AGED ABOUT 41
       YEARS, R/O NAVVAKAR REAL STATE
       PARK, SHIRREN FLAT NO.201, TITAN
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       1 NEAR AUSHMAN COLLEGE,
       DANESH KUNJ, BHOPAL (M.P)

1(H)   SUNIL MAITHIL SON OF LATE SHRI
       DASRATH MAITHIL, AGED ABOUT 41
       YEARS, R/O NAVVAKAR REAL STATE
       PARK, SHIRREN FLAT NO.201, TITAN
       1 NEAR AUSHMAN COLLEGE,
       DANESH KUNJ, BHOPAL (M.P)

1(I)   TUSHAR MATHIL SON OF LATE SHRI
       DASRATH MAITHIL, AGED ABOUT 41
       YEARS, R/O NAVVAKAR REAL STATE
       PARK, SHIRREN FLAT NO.201, TITAN
       1 NEAR AUSHMAN COLLEGE,
       DANESH KUNJ, BHOPAL (M.P)

1(J)   RANI MAITHIL WIFE OF ASHOK
       MAITHIL DAUGHTER OF LATE SHRI
       DASRATH MAITHIL AGED ABOUT 35
       YEARS, RESIDENT OF VILLAGE AND
       POST PHANDA KALA DISTRICT
       BHOPAL-462030 (MP)

1(K)   BEENA MAITHIL WIFE OF SHRI
       DEPESH DHINGROLIA, DAUGTHER
       OF LATE SHRI DASRATH MAITHIL
       AGED ABOUT 30 YEARS, R/O H.
       NO.427, INFRONT    OF     GIRLS
       COLLDGE, AWADH PURI ZONE 1,
       BHOPAL NAKA, SEHORE (MP.) 466001

                                          .....APPELLANTS

(BY SHRI CHANDRAHAS DUBEY - ADVOCATE)

AND

1.     SMT. BITTANBAI, AGED ABOUT 40 YEARS,
       WIFE OF BHAGWATI PRASAD ADAKKA,
       OCCUPATION: NIL

2.     BHAGWATI PRASAD, AGED ABOUT 50
       YEARS, S/O GAJRAJ, OCCUPATION:
       RAILWAY EMPLOYEE.
                                    -   3 -




      3.     NARESH KUMAR ALIAS BAHADUR
             ADAKKA, AGED ABOUT 22 YEARS, S/O
             BHAGWATI PRASAD ADAKKA,

             ALL RESIDENTS OF SARDAR PATEL
             PURA, KAWAD MOHALLA, ITARSI,
             TEHSIL      ITARSI    DISTRICT
             HOSHANGABAD (M.P.)

                                                           ....RESPONDENTS

      (NONE )
      ...............................................................................................
           Reserved on : 08.11.2023
             Pronounced on :      20.11.2023

       This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court pronounced the following:

                               JUDGMENT

This second appeal is preferred by appellant/plaintiff-Dasrath (now dead through LRs) challenging the judgment and decree dated 07.04.1999 passed by 2nd Additional District Judge, Hoshangabad in RCA no.1-A/91 reversing the judgment and decree dated 11.12.1990 passed by Civil Judge Class-II, Itarsi in civil suit no.3-A/88, whereby trial Court decreed the suit filed for restoration of possession and permanent injunction, which in civil appeal filed by the defendants was dismissed.

2. Facts in short are that the plaintiff instituted a suit for restoration of possession and permanent injunction claiming himself to be owner of the suit property shown in the plaint map as A-B-C-D-E-F, with the further averments that residential house is constructed on the land shown in the map as Ka, Kha, Da, Ga and Gha and adjacent to the plot of plaintiff there is plot of the defendant 1. It is alleged that in the month of May

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1988, the defendants 2 and 3 have by demolishing the wall shown as Da and Ga, encroached upon the land of the plaintiff having an area 12x12 sq.ft. With the aforesaid allegations, the suit was filed for restoration of possession of land area 12x12 sq.ft., for restoration of the wall (Da and Ga) and for compensation of Rs.700/- .

3. The defendants appeared and filed written statement denying the plaint allegations and contended that the defendants are in possession of the house and land of their ownership and there is no land of the ownership of the plaintiff. It is contended that the land of the plaintiff is not identifiable from the documents produced by him and he has also not got his land measured/demarcated and in fact the land shown by the plaintiff in the plaint, is owned by the defendants and the suit is barred by limitation. On inter alia contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings of the parties, learned trial Court framed six issues and recorded evidence of the parties and after hearing the parties, the suit was decreed vide judgment and decree dated 11.12.1990. Upon filing appeal by the defendants, learned first appellate Court re- appreciated the evidence of the parties and held that the plaintiff has failed to prove his ownership on the land in question, consequently dismissed the suit vide judgment and decree dated 07.04.1999.

5. Upon filing second appeal by the plaintiff, it came in hearing on 04.09.2013 and was admitted for final hearing on the following substantial question of law:-

"Whether in view of the law laid down by the Division Bench of this Court in the case of Durga Prasad vs. Praveen Fouzdar and

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others, 1975 MPLJ 801, the dispute pertaining to encroachment could have been decided without appointment of Commissioner ?"

6. Learned counsel for the appellants submits that because there is dispute of boundaries and encroachment of the land in question, therefore, learned Courts below ought to have appointed Commissioner for spot inspection with a view to resolve the dispute and first appellate Court has committed illegality in dismissing the suit even without getting the suit property inspected through Commissioner. He further submits that first appellate Court has also committed illegality in reversing the findings recorded by trial Court in respect of ownership of the plaintiff over the suit property because in written statement the defendants have not denied title of the plaintiff and even otherwise title of the plaintiff is proved on the basis of unregistered sale deed dated 05.07.1931 (Ex.P/1) of Rs.30/- executed by its previous owner Kapoora in favour of Ramdayal (father of plaintiff). With the aforesaid submissions, he prays for allowing the second appeal.

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

8. Perusal of the plaint shows that the suit for restoration of possession and permanent injunction has been filed by plaintiff claiming himself to be owner of the suit property but despite there being serious dispute about title of suit land/property, the plaintiff has not sought any relief of declaration of title, which in the light of decision of Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs and Ors. (2008) 4 SCC 594 (paras 13-14) was necessary and in fact in presence of clear dispute of title, the suit for possession without seeking declaration of title was not maintainable.

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9. Although, on the basis of wrong observation that there is no denial of title in the written statement, trial Court had found the plaintiff to be owner of the suit property but perusal of written statement shows that the defendants have not only denied title of the plaintiff but also specifically claimed themselves to be owner of the suit property. Upon due consideration of oral and documentary evidence, first appellate Court has come to conclusion that the plaintiff has failed to prove himself to be owner of the suit property and also failed to prove that the defendants have by demolishing the wall in question, taken possession over the land area 12x12 sq.ft. which are pure findings of facts.

10. For the reasons best known to the plaintiffs, neither any substantial question of law was proposed in the memo of appeal in respect of title of the plaintiff nor any substantial question of law has been formulated by this Court and even no prayer has been made to the Court to formulate substantial question of law in that regard. As such, in absence of any substantial question of law, no interference can be made in the findings of title recorded by first appellate Court. However, upon perusal of documentary and oral evidence available on record, the findings recorded by first appellate Court do not appear to be perverse or contrary to law.

11. As the plaintiff has failed to prove his title over the suit property including his dispossession by the defendants from the suit property, therefore, there is no question of appointment of Commissioner for spot inspection in the light of decision of Division Bench of this Court in the case of Durga Prasad vs. Praveen Fouzdar and others 1975 MPLJ 801.

12. In view of aforesaid discussion, in fact in absence of title of the plaintiff over the land in question, the substantial question of law framed

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by this Court on 04.09.2013 does not arise in the present second appeal. Resultantly, in absence of substantial question of law, the second appeal fails and is hereby dismissed.

13. However, no order as to the costs.

14. Pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE pb Digitally signed by PRASHANT BAGJILEWALE Date: 2023.11.22 10:43:39 +05'30'