Dhanyad Kumar vs Shailendra Kumar
2024 Latest Caselaw 3865 MP

Madhya Pradesh High Court

Dhanyad Kumar vs Shailendra Kumar on 9 February, 2024

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                        HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                               ON THE 9 th OF FEBRUARY, 2024
                                               SECOND APPEAL No. 1634 of 2021

                           BETWEEN:-
                           DHANYAD KUMAR S/O SHRI BHAGCHAND JAIN, AGED
                           ABOUT 54 YEARS, OCCUPATION: BUSINESS R/O MAIN
                           ROAD RITHI GRAM RITHI DISTT. KATNI M.P. (MADHYA
                           PRADESH)

                                                                                            .....APPELLANT
                           (BY SHRI AKHILESH KUMAR JAIN - ADVOCATE FOR APPELLANT)

                           AND
                           SHAILENDRA KUMAR S/O SHRI SURENDRA KUMAR
                           JINA, AGED ABOUT 52 YEARS, R/O NEAR GOVT.
                           MIDDLE SCHOOL GRAM RITHI DISTT. KATNI M.P.
                           (MADHYA PRADESH)

                                                                                          .....RESPONDENT


                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

This Second Appeal under Section 100 of CPC is preferred challenging the judgment and decree dated 31.08.2021 in RCA No.88/2018 by First District Judge, Katni, District Katni arising out of judgment and decree dated 27.04.2018 in RCSA No.159A/2015 by Fifth Civil Judge, Class-II, Katni, District-Katni.

2. Facts in brief are that respondent/plaintiff filed a Civil Suit for declaration of title and possession and permanent injunction regarding 0.020 hectare land of Survey No.598/4 and a Mud House built on 200 sq. ft. on that land situated in Village and Tahsil Rithi, District Katni, M.P. on the ground that

he purchased that land and house on 16.07.2008 from Shikhar Chand Jain in consideration of Rs.1,87,000/- and defendant/appellant is trying to encroach by erecting pillars in May, 2015.

3. Defendant filed the written statement with submission that disputed land is in his possession. He is the owner of the disputed land on the basis of will and he run a flour mill in that house from 50 years.

4. Trial Court framed four issues and recorded the evidence of plaintiff/respondent Shailendra Kumar as PW-1, Naresh Kumar as PW-2, Shikhar Chand Jain as PW-3 and admitted the documents Ex.P-1 to P-3 in which Ex.P-1 is the certified copy of registered sale deed dated 16.07.2008.

5. Appellant/defendant examined as DW-1, Azad Khan as DW-2, Murad Khan as DW-3 and adduced Ex.D1 to D4 in which Ex.D4 is the will purported to be executed by wife of Kanhaiya Lal Jain namely Pyari Bahu.

6. Trial Court found proved the plaintiff case and recorded the findings that defendant/appellant have no basis to substantiate his title on the disputed land and also concluded that so called Flour Mill is situated in the adjoining house of disputed land, it is not situated in the disputed land and recorded the finding that disputed land is in possession of plaintiff and defendant/appellant tried to interfere in the possession of plaintiff/respondent in May, 2005 and decreed the suit. First Appellate Court affirmed the finding of Trial Court and this Second Appeal is preferred proposing the following substantial questions of law :-

"i- Whether the impugned judgment and decree affirming the order of trial Court decreeing the suit of the respondent is correct, valid and legal ?

ii- Whether the impugned judgment and decree passed by the Court below is contrary to law and legal position ?

iii- Whether the Court below has committed illegality in rejecting the defense of the appellant in respect of non-joinder of necessary party ?

iv- Whether the Court below has justified in not framing the issue of ownership when specific pleadings have been raised in this respect. That suit property is ancestral property and the dispute between the Bhagchand and Shikharchand is pending before the Civil Court ?

v- Whether the Court below has committed illegality in shifting the burden of proof of suit on the appellant ?

vi- Whether the Court below was justified in decreeing the suit on incorrect appreciation of law as well as facts and evidence ?"

7. Shikhar Chand Jain (PW-3) himself has deposed infavour of plaintiff/respondent. The reference of proceedings under Section 250 of M.P. Land Revenue Code, 1959 also does not support the appellant/defendant because it mentions only that on attempt to encroach the disputed land

plaintiff/respondent approach the Revenue Authorities. It does not establish that appellant/defendant was in possession of the suit property.

8. In view of the aforesaid, no substantial questions of law is made out, hence, this Second Appeal is dismissed.

(GAJENDRA SINGH) JUDGE DPS