Madhya Pradesh High Court
Pammo Bai vs Mannulal on 30 November, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30 th OF NOVEMBER, 2023
SECOND APPEAL No. 885 of 2021
BETWEEN:-
1. PAMMO BAI W/O LATE SHRI BHAGUNTE KACHI,
AGED ABOUT 61 YEARS
2. DEVENDRA S/O LATE SARMAN KACHI, AGED
ABOUT 24 YEARS,
3. RAJENDRA S/O LATE SARMAN KACHI, AGED
ABOUT 20 YEARS
4. NANDANI D/O LATE SARMAN KACHI, AGED
ABOUT 18 YEARS
5. RAJABETI D/O LATE SARMAN KACHI, AGED
ABOUT 23 YEARS
6. REKHA W/O LATE SARMAN KACHI, AGED ABOUT
45 YEARS,
ALL RESIDENT OF VILLAGE MALTHON, TEHSIL
MALTHON, DISTRICT SAGAR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SAKET AGRAWAL - ADVOCATE )
AND
MANNULAL S/O HUKUMCHAND JAIN, AGED ABOUT 45
YEARS, VILL. MALTHON TEH. MALTHON DIST. SAGAR
MP
.....RESPONDENT
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the appellants/defendants
challenging the judgment and decree dated 01.03.2021 passed by 2nd Addl.
District Judge, Khurai, District Sagar in RCA No.04/17 affirming the judgment
and decree dated 10.12.2016 passed by 1st Civil Judge Class-II, Khurai,
District Sagar in civil suit no.5A/2010, whereby Courts below have decreed the
respondent/plaintiff's suit filed for restoration of possession and permanent
injunction in respect of an area 20x10 sq.ft. holding it to be a part of plaintiff's
plot having an area 2993 sq.ft.
2. Learned counsel for the appellants/defendants submits that although the
plaintiff purchased the plot having an area 2993 sq.ft. from the defendant 1-
Pammo Bai (Pambo) vide registered sale deed dated 29.06.1994 (Ex.P/2), but
the land area 20x10 in respect of which the suit has been filed, is not a part of
the property/plot (area 2993 sq.ft) purchased by the plaintiff on 29.06.1994,
therefore, there being dispute of title of the land in question, the plaintiff was
required to file suit for declaration of title, but despite raising dispute of title in
the written statement, the plaintiff did not take care to amend the plaint seeking
relief of declaration. As such, in the light of decision of Supreme Court in the
case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others
(2008) 4 SCC 594 (Para 13 and 14), the suit is not maintainable and submits
that learned Courts below have without taking into consideration the aforesaid
legal position, erred in decreeing the suit.
3. Heard learned counsel for the appellants/defendants and perused the
record.
4. Perusal of plaint para 2 shows that the plaintiff has come with the case that
he purchased a plot having an area 2993 sq.ft. vide registered sale deed dated
29.06.1994 from the defendant 1-Pammo Bai after making of payment of
consideration of Rs.40,000/- and this fact has been admitted by the defendants
in the written statement, therefore, ownership of the plaintiff over an area 2993
sq.ft. is not in dispute.
5. Taking into consideration the dispute involved among the parties, learned
Court below thought fit to issue Commission for demarcation of the disputed
area and by way of its report, the Commissioner opined that disputed land area
20x10 sq.ft. is a part of the plot purchased by the plaintiff vide registered sale
deed dated 29.06.1994. Hence, in these circumstances, the decision relied upon
by learned counsel for the appellants/defendants in the case of Anathula
Sudhakar (supra) is not applicable to the case in hand.
6. In view of the aforesaid discussion, in my considered opinion learned
Courts below do not appear to have committed any illegality in passing the
impugned judgment and decree.
7. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed in limine under Order 41 rule 11 CPC.
However, no order as to the costs.
8. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
