Madhya Pradesh High Court
Sumair Singh vs Smt. Vimlesh Kuwar on 15 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 15 th OF FEBRUARY, 2024
SECOND APPEAL No. 2026 of 2019
BETWEEN:-
1. SUMAIR SINGH S/O LATE SHRI RANJEET SINGH,
AGED ABOUT 57 YEARS, NEAR OF MALI
MOHALLA TEHSIL KHILCHIPUR DISTRICT
RAJGARH (MADHYA PRADESH)
2. SUGANKUWAR W/O SUMAIR SINGH, AGED
ABOUT 52 YEARS, NEAR MALI MOHALLA, TEHSIL
KHILCHIPUR, DISTRICT RAJGARH (MADHYA
PRADESH)
.....APPELLANTS
(SHRI ANIRUDH SAXENA, LEARNED COUNSEL FOR THE APPELLANTS).
AND
1. SMT. VIMLESH KUWAR W/O LATE BHAGWAN
SINGH, AGED ABOUT 57 YEARS, NEAR MALI
MOHALLA TEH. KHILCHIPUR DISTRICT
RAJGARH (MADHYA PRADESH)
2. KU. PREMLATA D/O LATE BHAGWAN SINGH,
AGED ABOUT 34 YEARS, NEAR MALI MOHALLA,
TEHSIL KHILCHIPUR, DISTRICT RAJGARH
(MADHYA PRADESH)
3. MAHENDRA SINGH S/O LATE BHAGWAN SINGH,
AGED ABOUT 36 YEARS, NEAR MALI MOHALLA,
TEHSIL KHILCHIPUR, DISTRICT RAJGARH
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SHUBHAM YADAV, ADVOCATE ON BEHALF OF SHRI PR
BHATNAGAR FOR RESPONDENTS).
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 2/17/2024
4:35:07 PM
2
ORDER
The present second appeal has been filed by the defendants/appellants
under section 100 of the Code of Civil Procedure being aggrieved by the
judgment and decree dated 09.05.2019 passed by IInd Additional District
Judge, district Rajgarh (Biaora) in civil appeal no.22/2017 affirming the
judgment and decree dated 18.04.2017 passed by Civil Judge, Class-II,
Khilchipur, district Rajgarh in Civil Suit No.30A/2016 filed by the
respondents/plaintiffs seeking mandatory injunction which was decreed by the
trial Court.
2. Facts of the case in brief are that respondents/plaintiffs filed a civil
suit against the appellants/defendants on the ground that appellants and
respondents are relatives and that the grandfather of the respondents and father
of the appellants bought a house whose distance between north to south is 50
ft. and east to west is 23 ft. 9 inch. The said house was got to the appellants
and respondents by way of partition of which north side portion comes under
the part of appellants whose north to south size is 19 ft. and east to west side is
25 inch. Respondents got a street (gali) for entering into his house and that
street (gali) comes under the portion of the respondents. The appellant No.1
executed an agreement on 03.05.2005 in favour of respondents that the disputed
portion belongs to him and the appellants will not make any types of door and
window on the part of that disputed portion. But after six years of construction
of the house of appellants, the appellants forcefully constructed door and steps
in the disputed portion. On 27.07.2016 respondents lodged a police complaint
against the appellants. In support of the submissions, respondents filed a map
of the house which is exhibited as Ex.P/3.
3. In reply appellants/defendants denied all the allegations made by the
respondents by submitting that there was no agreement signed between the
respondents and appellants, the steps and door were not constructed
afterwards but they were constructed in the year 2007 at the time of
construction of the house, therefore, the suit is barred by time.
4. The trial court framed the issues on the basis of the pleadings of both
the parties and recorded the evidence of both the parties and after arguments
and appreciation of evidence the trial court has decreed the suit filed by the
plaintiff. Being aggrieved by the said judgment and decree dated 18.04.2017
passed by the trial court the defendants/appellants have filed a regular civil
appeal before the IInd A.S.J, Rajgarh (Biaora) which was registered as RCA
No.22/2017. However, first appellate court has also affirmed the judgment and
decree passed by the trial court and dismissed the appeal filed by the
appellants/defendants. Being aggrieved by the said judgment and decree passed
by the first appellate court, the appellants/defendants have filed this second
appeal before this Court.
5. Learned counsel for the appellants has submitted that the judgment
and decree passed by the trial court as well as first appellate Court are illegal
and not based on proper appreciation of evidence. Both the courts have failed
to consider the oral as well as documentary evidence produced by the
defendants/appellants. The first appellate court has erred in dismissing the
appeal preferred by the appellants/defendants. The findings of both the courts
are perverse which are against the evidence available on record. Hence, prays
that the appeal be admitted on the substantial questions of law as proposed by
the appellants in the appeal memo.
6. Heard learned counsel for the appellant and perused the entire record
of both the courts below with due care.
7. Undisputedly, appellants/defendants did not adduce any evidence
before the trial court to prove their pleadings. Learned counsel for the
appellants has submitted that they had not entered into any agreement with the
plaintiff and challenged the said agreement before the trial court as well as first
appellate court. They denied the execution of the agreement but perusal of the
record of both the courts it is found that after appreciating the evidence the trial
court found that the agreement has been executed between both the parties.
However, defendants/appellants have not adduced any evidence in regard to the
agreement. Neither they had dared to adduce any evidence nor claiming to
examine hand writing expert of the disputed executed agreement.
8. So considering the evidence adduced before the trial court, the trial
court as well as first appellate court have given concurrent finding that an
agreement has been executed between both parties in regard to the passage.
Learned counsel for the appellant has submitted that the agreement has not been
executed between the appellant/defendants and plaintiffs/respondents but the
said agreement has been executed between Bhagwansingh and defendants,
however, Bhagwansingh has not been made as party.
9. So in the considered opinion of this Court, there is an execution of
agreement between the parties in regard to the disputed passage and it has been
proved that the execution has been between both the parties. So it is not
necessary to implead husband of the plaintiff No.1 as party in the suit,
therefore, this argument has no substance.
10. In view of the foregoing discussion, the considered opinion of this
Court, the judgment and decree passed by the first appellate court is well
reasoned and based on due appreciation of oral as well as documentary
evidence available on record. The findings recorded by both the courts are
concurrent findings of fact. The appellants have failed to show as to how the
findings of fact recorded by both the courts below are illegal, perverse and
based on no evidence. Thus, in the considered opinion of this Court, no
substantial questions of law arises for consideration in this second appeal.
Accordingly, the appeal being devoid of merit stands dismissed.
(HIRDESH)
JUDGE
hk/
