Abhinay Kumar Sharma vs Smt. Poornima Sharma
2023 Latest Caselaw 14412 MP

                            1

      IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                        BEFORE
   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

            ON THE 2nd OF SEPTEMBER, 2023
             SECOND APPEAL No. 531 of 2023


BETWEEN:-

 1. ABHINAY KUMAR SHARMA S/O BADRI
 PRASAD SHARMA, AGED ABOUT 51
 YEARS, R/O CHOURAI TEHSIL CHOURAI
 DSITRICT    CHHINDWARA    (MADHYA
 PRADESH)

  2. VINAY KUMAR SHARMA S/O BADRI
  PRASAD SHARMA, AGED ABOUT 49
  YEARS, R/O CHOURAI, TAHSIL CHOURAI
  DISTRICT    CHHINDWARA     (MADHYA
  PRADESH)

  3. SMT. ASHA BI W/O LATE BADRI
  PRASAD SHARMA, AGED ABOUT 69
  YEARS, R/O CHOURAI, TAHSIL CHOURAI
  DISTRICT    CHHINDWARA     (MADHYA
  PRADESH)
                                             .....APPELLANTS

(BY SHRI AKHILESH KU JAIN - ADVOCATE)

AND


1. SMT.  POORNIMA    SHARMA   W/O
   MANOHARLAL SHARMA, AGED ABOUT
   59 YEARS, R/O CHOURAI TEHSIL
   CHOURAI AT PRESENT R/O LIG-7
   HOUSING BOARD COLONY PARASIYA
   ROAD     CHHINDWARA    (MADHYA
   PRADESH)
2. STATE  OF   MADHYA   PRADESH
   THROUGH COLLECTOR CHHINDWARA
                                           2

          TAHSIL AND DISTRICT CHHINDWARA
          (MADHYA PRADESH)
                                                                 .....RESPONDENTS
         (BY MS. GARIMA TIWARI - PANEL LAWYER FOR RESPONDENT 2/STATE)
__________________________________________________________________
      This appeal coming on for admission this day, the court passed the
following:
                                     ORDER

This second appeal has been preferred by the appellants/defendants

challenging the judgment and decree dated 18.01.2023 passed by District Judge,

Chaurai, District Chhindwara in RCA No.27/2022, affirming the judgment and

decree dated 29.08.2022 passed by Civil Judge Class-II, Chaurai, District

Chhindwada in Civil Suit No.100064-A/2009, whereby suit filed for mandatory

injunction praying for removal of construction raised by the defendants 1-3 has

been decreed.

2. In short the facts are that the plaintiff/respondent 1 purchased a plot in

question admeasuring 20x58 sq.ft from the defendants 1-3 vide registered sale

deed dated 23.10.1998 (Ex.P/10). Execution of sale deed by defendants 1-3 is

not in dispute and only dispute is about raising of construction by defendants 1-

3 over part of the disputed plot. Initially learned trial Court decreed the suit vide

judgment and decree dated 23.09.2011, which in appeal was set aside by learned

first appellate Court vide judgment and decree dated 19.09.2014, whereby

matter was remanded to learned trial Court for decision of suit afresh after

getting the land in question demarcated through some revenue officer.

3. Learned trial Court after getting the suit land demarcated and again

after consideration of the material available on record decreed the suit vide

judgment and decree dated 29.08.2022, which in appeal has been affirmed by

learned first appellate Court vide impugned judgment and decree dated

18.01.2023.

4. Learned counsel for the appellants/defendants 1-3 concedes that there

is no dispute of title of the plaintiff over the disputed plot because it was sold by

defendants 1-3 themselves, but he submits that demarcation was not done in

accordance with the provisions/rules framed for demarcation and the defendants

have not raised any construction on the plot owned by the plaintiff. Criticizing

the demarcation report on several grounds, learned counsel for the

appellants/defendants 1-3 prays for admission of the second appeal.

5. Heard learned counsel for the appellants/defendants 1-3 and perused

the record, as well as the judgment and decree passed by learned Courts below.

6. In the present case title of the plaintiff is not in dispute, therefore, the

suit filed by the plaintiff simplicitor for mandatory injunction can be said to be

maintainable. The map annexed with the sale deed (Ex.P/10) is very much clear

in respect of the boundaries of the plot and if the map annexed with the sale

deed and the demarcation report submitted by the Revenue Inspector is

considered conjointly, it is clear that the defendants have raised construction on

the plot of the plaintiff. However, learned Counsel for the appellants, has failed

to point out any illegality in the demarcation report, sufficient to discard the

report, which was made part of the record after cross examination of the

commissioner/revenue officer.

7. The findings recorded by learned Courts below are based on the

material evidence available on record as well as on the basis of demarcation

report, whereby it has been held that the defendants have made encroachment

on the land of plaintiff by raising construction thereon. These findings in respect

of encroachment on the land of plaintiff being based on documentary and oral

evidence coupled with demarcation report, are pure findings of fact and are not

liable to be interfered with in the limited scope of Section 100 CPC.

8. However, it is hereby observed that if the defendants want to leave

possession from the suit land/plot, they may file review petition before the first

appellate Court only in respect of the compensation/mesne profits of Rs.2,000/-

per day and if such review petition is filed by the defendants 1-3 within 15 days

from today, the same shall be decided by learned Court in accordance with the

law, without being influenced by any of the observations made in the judgment

and decree passed by it or made by this Court in the order passed today.

9. Resultantly, in absence of any substantial question of law, the second

appeal fails and is hereby dismissed.

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

(DWARKA DHISH BANSAL) JUDGE SN Digitally signed by SATTYENDAR NAGDEVE Date: 2023.09.05 18:31:27 +05'30'