Madhya Pradesh High Court
Manohar Das Sharma vs Akhilesh Sharma on 5 February, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 5thOF FEBRUARY, 2024
SECOND APPEAL No. 1796 of 2022
Between :-
MANOHAR DAS SHARMA S/O LATE
SHRI MOTIDAS SHARMA, AGED
ABOUT 67 YEARS, MAHAMAYA ARD,
BHAIROGANJ SEONI TAHSIL AND
DISTRICT SEONI (MADHYA PRADESH)
...APPELLANT
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. AKHILESH SHARMA S/O LATE SHRI
UMADAS SHARMA, AGED ABOUT 42
YEARS, R/O MAHAMAYA WARD
BHAIROGANJ SEONI TEHSIL AND
DISTRICT SEONI (M.P.) (MADHYA
PRADESH)
2. SMT. ABHA TIWARI W/O LATE SHRI
DEVESH TIWARI, AGED ABOUT 46
YEARS, R/O MAHAMAYA WARD
BHAIROGANJ SEONI TEHSIL AND
DISTRICT SEONI (MADHYA PRADESH)
....RESPONDENTS
( NONE )
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These second appeal coming on for hearing this day, the
court passed the following:
JUDGMENT
This Second appeal under Section 100 of Civil Procedure
Code (for brevity, CPC) has been filed by the appellant (hereinafter
referred to as "plaintiff") against the respondent (hereinafter referred
to as "defendants") against the impugned judgment and decree dated
04.07.2022 passed by the Ist District Judge, Seoni District, Seoni in
regular civil Appeal No.17/2020 arising out of the Judgment and
decree dated 19.02.2018 passed by Vth Civil Judge, Class - I, Seoni
District Seoni in Civil suit No. 1000033-A/2014.
2. It is submitted by learned counsel for the appellant that court
below has committed an error in rejecting the application filed by the
appellant/plaintiff under Order 41 Rule 27 of CPC, the findings of
both the courts below is perverse and liable to the set aside.
3. Heard learned counsel for the appellant and perused the record.
4. The suit was filed by plaintiff/appellant for mandatory injunction
with regard to the suit accommodation and it was incumbent upon
the plaintiff to prove the title over the suit accommodation but in this
regard no document has been filed on behalf of the plaintiff, only
bills of electricity has been filed but that are not the document to
establish the title over the suit accommodation. It is submitted by
learned counsel for the plaintiff that plaintiff has filed an application
under Order 41 Rule 27 for taking the documents on record which
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includes the copy of Naksha, Khasra and Patta but that application
was rejected without there being assigning any reason.
5. In this regard if we look into the order of the Ist appellate
court, it is found that the acquisition of title over the suit
accommodation said to be ancestral property as per the plaintiff was
from the partition deed. Initially patta was issued but the suit
accommodation was said to be obtained by the plaintiff through that
partition deed. Therefore, partition deed was the important document
to establish the title over the suit accommodation of the plaintiff,
however the partition deed between Umadas and Manohardas has not
been exhibited and proved at the time of trial. In absence such
document, the documents filed with aforesaid application are not of
much help to the plaintiff and there has been no reason assigned by
the plaintiff in the application that why such document could not be
produced before the trial court at the time of trial. Therefore, Ist
appellate court having considered with regard to the provisions of
Order 41 Rule 27 of the CPC has rightly rejected the application filed
under aforesaid provisions.
6. In absence of any title deed and in absence of proof over the
suit accommodation of title of the plaintiff no mandatory or
permanent injunction can be issued in favour of the plaintiff.
7. It is also pertinent to mention that plaintiff himself has given
suggestion to the defendant Akhilesh in his statement that in
ancestral house no share has been given to plaintiff/him by Manohar
Das Sharma that suggestion has been admitted by the defendant.
Plaintiff has not discharged the burden of proof laid upon him, it is
trite law that plaintiff on his own has to prove his case, he cannot
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take benefit of weaknesses of defendant, here in this case, the
plaintiff is failed to prove his case and also failed to establish his
ownership. Therefore, the findings of Court below do not found to
be erroneous or unlawful and requires no interference.
8. In the light of the aforesaid discussion, it is found that no
perverse findings have been given neither by the trial Court nor by
the first appellate Court and both the Courts did not commit any
illegality while decreeing the suit of the plaintiff and affirming the
same, thus no substantial question of law arises in this case. Learned
Courts below neither ignored any material fact nor considered any
inadmissible evidence and, thus, the concurrent findings of the
Courts below are not liable to be interfered with.
9. In the result, the impugned judgment and decree dated
04.07.2022 passed by the Ist District Judge, Seoni District, Seoni in
regular civil Appeal No.17/2020 and the Judgment and decree dated
19.02.2018 passed by Vth Civil Judge, Class - I, Seoni District Seoni
in Civil suit No. 1000033-A/2014 are hereby affirmed.
10. The appeal fails and is hereby dismissed in limine.
(RAJENDRA KUMAR VANI)
JUDGE
Akanksha
AKANKSHA MAURYA
2024.02.17 10:38:52 +05'30'
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