Madhya Pradesh High Court
Dilawar vs Gulam Hussain Deceased Through Lrs. ... on 9 February, 2024
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 9th OF FEBRUARY, 2024
SECOND APPEAL No. 2769 of 2023
BETWEEN:-
DILAWAR S/O A. SHAKUR OCCUPATION: BUSINESS 93/1, NAYA
NUMBER 101, BHISTI MOHALLA, INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI PAVAN KUMAR VERMA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
1. GULAM HUSSAIN DECEASED THROUGH LRS. SMT. JOHRA W/O
GULAM RASUL, AGED ABOUT 60 YEARS, 30 SOUTH GAFOOR KHA KI
BAJRIYA, INDORE (MADHYA PRADESH)
2. GULAM HUSSAIN DECEASED THROUGH LRS. JAKIR @ GUDDU S/O
GULAM RASUL, AGED ABOUT 40 YEARS, 30 SOUTH GAFOOR KHA KI
BAJRIYA, INDORE (MADHYA PRADESH)
3. GULAM HUSSAIN DECEASED THROUGH LRS. JAVED S/O GULAM
RASUL, AGED ABOUT 38 YEARS, 30 SOUTH GAFOOR KHA KI
BAJRIYA, INDORE (MADHYA PRADESH)
4. GULAM HUSSAIN DECEASED THROUGH LRS. IMRAN S/O GULAM
RASUL, AGED ABOUT 28 YEARS, 30 SOUTH GAFOOR KHA KI
BAJRIYA, INDORE (MADHYA PRADESH)
5. GULAM HUSSAIN DECEASED THROUGH LRS. RIHANA W/O
FARUKH, AGED ABOUT 32 YEARS, MARATHI MOHALLA JAFAR
MUNNA NETA KA MAKAN INDORE (MADHYA PRADESH)
6. GULAM HUSSAIN DECEASED THROUGH LRS. FARNAZ @ GOSIYA
W/O IMRAN, AGED ABOUT 30 YEARS, BHAI MIYA PALAG WALE KE
PAS JUNA RISALA INDORE (MADHYA PRADESH)
.....RESPONDENTS
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This appeal coming on for admission this day, the court passed the
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following:
JUDGMENT
This second appeal has been filed by appellant/defendant under
Section 100 of CPC being aggrieved by the judgment and decree dated
09.10.2023 passed by 29th District Judge, Indore in RCA No.170002/2015
affirming the judgment and decree dated 28.03.2014 passed by 17 th Civil
Judge, Senior Division, Indore in Civil Suit No.102 A/12 filed by the
respondents/plaintiffs for declaration of title and mesne profit and for
possession, which was affirmed by the court below.
2. Brief facts of the case are that plaintiffs/respondents filed a civil
suit before the trial court stating that they are owners of the house
No.93/1 new No.101 situated in Bhisti Mohalla, Indore. This suit house
was purchased by the plaintiffs from brother of the defendant by way of
sale deed dated 02.02.2006. Defendant resided in disputed house with
oral permission from the time of Abdul Naseer. Plaintiffs pleaded that
defendant executed a Kiraaya Chitthi in favour of the plaintiffs and
accepted the ownership of the plaintiffs and gave assurance that he would
vacate the suit house within three months but he did not vacate the suit
house nor executed any agreement of tenancy thereafter, plaintiffs gave
notice to him for vacating the house and after denial of by the defendant
to vacate the suit house, he filed civil suit against the defendant for
declaration of title and recovery of possession. The defendant denied all
the averments.
3. Trial court framed the issues and on the basis of the pleadings of
both the parties and after taking evidence of both the parties decreed the
suit in favour the plaintiffs.
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4. Being aggrieved by the judgment and decree of the trial court,
appellant/defendant filed first appeal before 29th District Judge, Indore.
The first appellate court also dismissed the appeal filed by the defendant
and affirmed the judgment and decree passed by the trial court.
5. Being aggrieved by the judgment and decree passed by the
appellate court, appellant/defendant preferred this second appeal by
submitting that the judgment and decree passed by both the courts below
are illegal and not based on just and proper appreciation of the evidence.
6. Both the Courts below have failed to consider oral as well as
documentary evidence produced by the appellant/defendant. Both the
courts have committed error in allowing the suit preferred by
respondents/plaintiffs. Findings of both the courts below are perverse
which are against evidence available on record. Hence, it is submitted
that the appeal deserves to be admitted on the substantial questions of law
proposed by the appellant/defendant.
7. Heard the learned counsel for the parties and perused the records of
both the courts below with due care.
8. From perusal of the record, it is found that plaintiffs had proved
before the trial court as well as the first appellate court that they
purchased the suit house by way of sale deed from the brother of the
appellant/defendant. Learned counsel for the appellant/defendant submits
that the suit was barred by limitation but considering the judgment of the
first appellate court as well as trial court it is found that plaintiff gave a
notice to the defendant for vacating the house on 01.09.2012 so cause of
action arose on 01.09.2012, therefore, both the courts have rightly found
that the suit is within limitation.
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9. After perusal of the record of the courts below, it is found that the
suit house was purchased by the plaintiff from previous owner of the suit
house, who was the brother of the defendant and brother of the defendant
had right to sell this property and he soled this property by way of
registered sale deed. The defendant was unable to prove any right over
the suit house, therefore, on the basis of the aforesaid evidence, trial court
as well as first appellate court have given concurrent findings that
appellant/defendant has failed to prove his defence, hence, both the courts
below have rightly allow the suit filed by the plaintiffs.
10. In the light of the aforesaid discussion, this Court is of the
considered opinion that the impugned judgment and decree passed by
both the courts below are well reasoned and based upon the due
appreciation of oral as well as documentary evidence available on record.
The findings recorded by both the courts below are concurrent finding of
facts. The appellant/defendant has failed to show that as to how the
finding of facts recorded by both the courts below are illegal, perverse
and based on no evidence. Thus, no substantial question of law arises for
consideration in the present second appeal.
11. Accordingly, present second appeal sans merit and is hereby
dismissed at admission stage itself.
(HIRDESH)
JUDGE
N.R.
