Madhya Pradesh High Court
Mangilal vs Kanhaiyalal on 7 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7th OF FEBRUARY, 2024
SECOND APPEAL No. 1707 of 2022
BETWEEN:-
MANGILAL S/O SHRI KARULAL PATIDAR, AGED ABOUT 46
YEARS, OCCUPATION: AGRICULTURIST KUMAWATPUR
SAILANA, TEHSIL SAILANA (MADHYA PRADESH)
.....APPELLANT/PLAINTIFF
(SHRI RAM LAL PATIDAR, ADVOCATE FOR APPELLANT)
AND
KANHAIYALAL S/O SHRI PUNAJI PATIDAR, AGED ABOUT 59
1. YEARS, OCCUPATION: AGRICULTURE KUMAWAT SAILANA,
TEHSIL SAILANA (MADHYA PRADESH)
MUKHY NAGAR PALIKA ADHIKARI NAGAR PARISHAD
2. SAILANA, TEHSIL SAILANA, DISTRICT RATLAM (MADHYA
PRADESH)
DINESH S/O KANAIYALAL PATIDAR, AGED ABOUT 59 YEARS,
3. OCCUPATION: AGRICULTURIST KUMAWATPURA WARD NO. 3
SAILANA, DISTRIDT RATLAM (MADHYA PRADESH)
SURESH S/O KANAIYALAL PATIDAR KUMAWATPURA WARD
4.
NO. 3 SAILANA, DISTRIDT RATLAM (MADHYA PRADESH)
.....RESPONDENTS/DEFENDANTS
(NONE FOR THE RESPONDENTS)
This appeal coming on for orders this day, the court passed
the following:
ORDER
Appellant/plaintiff has preferred this appeal under Section
100 of Code of Civil Procedure, 1908, against the judgment and
decree dated 27.04.2022 passed by Third Additional District
Judge, District-Ratlam (MP) passed in Regular Civil Appeal
No.52/2019 arising out of the judgment and decree dated
29.06.2019 passed in Civil Suit No.52A/2014 passed by Civil
Judge, Class-I, Senior Division, Sailana, District-Ratlam, by which
the appellate Court has dismissed the suit filed by the
appellant/plaintiff.
(2) The facts relevant for disposal of this appeal are that the
appellant/plaintiff has filed the civil suit for mandatory injunction
against the respondent/defendant is that house No.24 situated at
Village-Sailana, District-Ratlam (MP) is in the ownership of
plaintiff. It is also averred that there is a passage of three foot and
hundred meter width in the east side of the house of plaintiff. This
is a public passage in which residents of village are going here and
there. From this passage, air and light passes through the house of
plaintiff and the disputed passage has been used by other residents
of the area since long time and the respondent No.2/defendant in
their presence use to take the responsibility of cleanliness of the
said area. The respondents No.3 and 4 has constructed the illegal
wall in the said passage due to which it has been closed.
Thereafter, the appellant/plaintiff has filed the application in
respect of mandatory injunction against the defendants to demolish
the said construction upon the passage. Hence, the same before
this Court.
(3) The respondents/defendants have filed their written
statement and denied all the averments made by the
appellant/plaintiff.
(4) The trial Court thereafter framed the issues on the basis of
pleadings and after hearing the parties and considering the oral and
documentary evidence has dismissed the suit filed by the
appellant/plaintiff.
(5) Being aggrieved by the judgment and decree passed by the
trial court dated 27.04.2022, the appellant/plaintiff has filed the
appeal before the first appellate Court and the appellate Court
same has affirmed the judgment and decree passed by the trial
Court and has dismissed the appeal filed by the plaintiff.
(6) Counsel for the appellant/plaintiff has argued before this
Court and has submitted that the courts below have committed
grave error in dismissing the suit filed by the appellant/plaintiff
and the courts below have given perverse finding against the
evidence available on record.
(7) I have heard counsel for the appellant/plaintiff and have
perused the original record of the case file.
(8) From the perusal of the record, it appears that the plaintiff
filed the civil suit as a representative suit. He pleaded that the
disputed passage was the government land and that all the persons
resided in the said area can use the said passage for to and fro. It
means that the plaintiff has filed the suit in the representative
capacity according to Order 1 Rule 8 of the Code of Civil
Procedure, 1908.
Order 1 Rule 8 CPC:
One person may sue or defend on behalf of all in
same interest.-(1) Where there are numerous
persons having the same interest in one suit,- (a)
one or more of such persons may with the
permission of the court, sue or to be sued, or may
defend such suit, on behalf of, or for the benefit of,
all persons so interested; (b) the court may direct
that one or more of such persons may sue or be
sued, or may defend such suit, on behalf of, or for
the benefit of, all persons so interested.
(9) It is stated that the plaintiff is not entitled to file the suit in a
individual capacity for public passage but in the present case the
appellant/plaintiff filed the suit in a individual capacity in regard
to the disputed property but as per law he has no locus-standi to
file the suit individually. Therefore, on the basis of aforesaid facts
and in my opinion both the courts below has given concurrent
findings and has averred that appellant/plaintiff has failed to prove
their right to get mandatory injunction against the respondent.
(10) Hence, considering the judgment of both the courts below
and in the considered opinion of this Court, I do not find any
perversity or illegality committed by the courts below in passing
the aforesaid judgments by giving the reasoning and affirming the
same. Accordingly, no substantial questions of law arises for
consideration in the present appeal. The appeal sans merit and is
accordingly dismissed. No order as to costs.
(11) Certified copy, as per Rules.
(HIRDESH)
Arun/- JUDGE
ARUN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT OF
MADHYA PRADESH BENCH INDORE,
2.5.4.20=d5b56e3de75e7828ced1a96bc4f01804
c3ea1f0a5497e4019e41c0a82cbabbf0,
NAIR
postalCode=452001, st=Madhya Pradesh,
serialNumber=192F2423E128DC1CC004DD8FF
22B3F2FFC3D1EF75981FCBEF3B2B76823F270F
7, cn=ARUN NAIR
Date: 2024.02.28 10:54:39 +05'30'
