Tahir Husain vs Arif @ Guddu
2023 Latest Caselaw 15598 MP

                                                            1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                    BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 22 nd OF SEPTEMBER, 2023
                                            SECOND APPEAL No. 1050 of 2019

                          BETWEEN:-
                          TAHIR HUSAIN S/O SHRI ATA HUSAIN, AGED ABOUT 59
                          YE A R S , NEAR KALLU MIYAN HOTEL TALAIYA
                          MOHALLA KASBA SEHORE (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI RAVIKANT
                          PATEL - ADVOCATE )

                          AND
                          1.    ARIF @ GUDDU S/O MUSTAFA KHAN, AGED
                                ABOUT 40 YEARS, NEAR KALLU MIYAN HOTEL
                                TALAIYA MOHALLA KASBA SEHORE (MADHYA
                                PRADESH)

                          2.    RAJA S/O MUSTAFA, AGED ABOUT 35 YEARS,
                                NEAR KALLU MIYAN HOTEL TALAIYA MOHALLA
                                KASBA SEHORE (MADHYA PRADESH)

                                                                                     .....RESPONDENTS


                                T h is appeal coming on for orders this day, t h e cou rt passed the
                          following:
                                                             ORDER

Heard I.A.No.4515/2019, which is an application under Section 5 of the Limitation Act.

2. The Registry has reported this appeal to be barred by 824 days.

3. Supporting the averments made in the application, learned senior

Signature Not Verified counsel submits that against the judgment and decree dated 07.09.2016, the Signed by: ANUPRIYA SHARMA Signing time: 9/23/2023 3:05:05 PM

second appeal was to be filed on or before 02.01.2017 and the plaintiff/appellant had handed over all the documents to learned counsel on 18.11.2016 and thereupon the counsel prepared the appeal on 24.12.2016 but mistakenly, the brief was kept with the disposed off cases and the same could be traced only on 02.04.2019 when the appellant contacted in the office of the counsel, immediately, thereafter the appeal was filed. Learned counsel submits that the delay has occurred due to mistake of the counsel and for the mistake of the counsel, the litigant should not be penalized.

4. Despite service of notice on the respondents, nobody has appeared to oppose the application.

5. Upon perusal of the application which is supported by affidavit of Clerk of the counsel, in absence of any opposition, the reason of delay in filing of the appeal appears to be bonafide. Resultantly, by allowing the application under Section 5 of the Limitation Act, the second appeal is treated to be within limitation. Hence, I.A.No.4515/2019 is allowed and disposed off.

6. Also heard on the question of admission.

7. This second appeal has been preferred by the appellant/plaintiff challenging the judgement and decree dated 07.09.2016 passed by 2nd Additional Judge to the Court of 1st Additional District Judge, Sehore in RCA No.54A/2015 affirming the judgment and decree dated 26.08.2015 passed by 4th Civil Judge Class-II, Sehore in Civil Suit No.3A/2015, whereby appellant/plaintiff's suit filed initially for permanent injunction and was amended later on for the relief of mandatory injunction, has been dismissed in respect of land area 3x40 sq.ft.

8. Learned counsel for the appellant/plaintiff submits that the Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 9/23/2023 3:05:05 PM

plaintiff/appellant is owner of the disputed land on the basis of sale deed dated 31.12.1982 (Ex.P/1) and the defendant has encroached upon the land of the plaintiff by raising construction during pendency of the suit and despite there being no dispute about title of the land in question, learned courts below have erred in dismissing the suit. With the aforesaid submissions, he prays for admission of the second appeal.

9. Heard learned counsel for the appellant/plaintiff and perused the record.

10. While passing the judgment and decree, learned trial Court vide para 9 of its judgment, has taken into consideration the admission made by the plaintiff- Tahir Hussain to the effect that although he purchased the land in question vide registered sale deed dated 31.12.1982, but he did not receive the possession over the disputed part of the land.

11. It is also apparent on record that both the parties are claiming the disputed land belonging to them and despite knowledge of the clear cut case of the defendant, the plaintiff did not care to seek any declaration in respect of suit land and originally he filed suit for permanent injunction and later on, he amended the suit for relief of mandatory injunction.

12. In my considered opinion, when there was clear dispute about title, the plaintiff was required to file the suit for declaration of title also, in absence

of which, the suit merely for permanent or mandatory injunction cannot be decreed.

13. Upon perusal of the entire record, in my considered opinion, learned courts below have not committed any illegality in dismissing the civil suit filed by the appellant/plaintiff.

14. Resultantly, in absence of any substantial question of law, this Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 9/23/2023 3:05:05 PM

second appeal fails and is hereby dismissed.

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

(DWARKA DHISH BANSAL) JUDGE anu

Signature Not Verified Signed by: ANUPRIYA SHARMA Signing time: 9/23/2023 3:05:05 PM