Madhya Pradesh High Court
Nemichand vs Rajmal Deceased Thr. Lrs. Lalchand ... on 16 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 16 th OF FEBRUARY, 2024
SECOND APPEAL No. 2237 of 2022
BETWEEN:-
NEMICHAND S/O MOTILAL MEHTA, AGED ABOUT 72
YEAR S, BHOJKA GALI, CITY MANDSAUR (MADHYA
PRADESH)
.....APPELLANT
(SHRI VINAY ZELAWAT, LEARNED SENIOR COUNSEL WITH SHRI
ABIHNAV MAITRA FOR THE APPELLANT)
AND
1. RAJMAL DECEASED THR. LRS. LALCHAND
DECEASED THR. LRS. RONAK S/O LALCHAND
MEHTA, AGED ABOUT 38 YEARS, GALI NO. 2
KALAKHET, MANDSAUR (MADHYA PRADESH)
2. RAJMAL S/O DHULCHAND MEHTA (DIED)
THROUGH LRS. LALCHAND S/O RAJMAL MEHTA
(DIED) THROUGH LRS. SMT. RISHIKA W/O VINAY
KUMAR, AGED ABOUT 35 YEARS, IN FRONT OF
ASHIRWAD BHAWAN, RTO ROAD, INDORE
(MADHYA PRADESH)
3. RAJBALA D/O RAJMAL MEHTA OCCUPATION:
HOUSEWIFE GAUTAM NAGAR, KALAKHET,
MANDSAUR (MADHYA PRADESH)
4. SMT. ALKA W/O PRAVEEN KUMAR SALGIYA
OCCUPATION: HOUSEWIFE SADAR BAZAR,
PRATAPGARH (RAJASTHAN)
5. ANITA D/O JAYANTILAL BAKSHI OCCUPATION:
HOUSEWIFE 146 SHANTAKUNJ CHATRAPATI
NAGAR, AERODRAM ROAD, INDORE (MADHYA
PRADESH)
6. SUDHA W/O DEEPAK KUMAR TALATI
OCCUPATION: HOUSEWIFE TALATI BHAWAN
PRATAPGARH (RAJASTHAN)
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 2/17/2024
4:35:07 PM
2
7. LEENA W/O MAHAVEER KUMAR DOSHI
OCCUPATION: HOUSEWIFE JAIPURIYA BUILDING
BHAWANIMANDI (MADHYA PRADESH)
8. SEEMA W/O AKASH KUMAR TALATI
OCCUPATION: HOUSEWIFE 202, SETHI NAGAR,
UJJAIN (MADHYA PRADESH)
9. VINOD S/O DHULCHAND MEHTA, AGED ABOUT 72
YE A R S , BHOJAKA GALI, CITY, MANDSAUR
(MADHYA PRADESH)
.....RESPONDENTS
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Present second appeal has been filed by the plaintiff/appellant Nemichand
under section 100 of the Code of Civil Procedure being aggrieved by the
judgment and decree dated 09.07.2022 passed by IInd District Judge, Mandsaur
in RCA No.16/2019 affirming the judgment and decree dated 10.01.2019
passed by IInd Civil Judge, Class-I, Mandsaur in Regular Civil Suit
No.271A/2017 whereby the trial court has dismissed the suit filed for permanent
injunction.
2. Facts of the case in brief are that plaintiff/appellant filed a civil suit on
20.09.2012 for permanent injunction stating that appellant/plaintiff is the owner
of shop no.42, Madhavganj, Mandsaur which he received from his father in
family partition done by father and a memorandum of partition was also
executed in the year 1959 by the father. The said memorandum of partition
after death of father is in possession of respondents/defendants. The shop
received by appellant/plaintiff in partition is in possession of appellant/plaintiff
and on 08.09.2012 respondents/defendants have tried to interfere in possession
of the appellant/plaintiff. Hence, the suit was filed claiming the relief of
permanent injunction.
3. Respondents/defendants filed their written statement and denied the
plaint averments and stated that oral partition took place on 12.12.1958 between
Motilal and Dhulchand and one Shantilal for which memorandum of partition
was written on 19.02.1959. According to the said partition, disputed shop was
in the ownership of Dhulchand and father of plaintiff Motilal did not get the said
shop in partition, therefore, plaintiff has no right on the said shop and prayed
for dismissal of the suit.
4. Trial Court framed issues on the basis of the pleadings of both the
parties and after taking evidence of the parties and after hearing arguments of
both the parties, trial court dismissed the suit filed by the plaintiff/appellant.
5. Being aggrieved by the judgment and decree of the trial court dated
10.01.2019, first appeal has been filed by the plaintiff, however, the first
appellate court has affirmed the judgment and decree passed by the trial court
and dismissed the appeal filed by the appellant/plaintiff.
6. Learned counsel for the appellant has argued that the judgment and
decree passed by both the courts are illegal and are not based on proper
appreciation of evidence. Both the courts have failed to consider the oral as
well as documentary evidence adduced by the plaintiff. Both the courts erred in
dismissing the suit preferred by the appellant/plaintiff. The findings of the trial
court as well as first appellate court are against the evidence available on
record. Hence, he submitted that the appeal deserves to be admitted on the
substantial questions of law proposed by the appellant.
7. Heard learned counsel for the appellant at length and perused the
entire record of both the courts with due care.
8. Appellant/plaintiff filed the civil suit before the trial court that his father
got disputed shop in partition in the year 1959 and plaintiff is in possession of
that shop and defendants are trying to interfere in the possession of the
appellant/plaintiff. After perusal of the record of the trial court and the evidence
adduced before the trial court it was found that plaintiff has admitted that he is
not in possession of the disputed property since last 30 years. He admitted that
there is no documentary evidence that disputed property was in possession of
his father before him.
9. It is settled principle of law that trial court and first appellate court is
the last court for the finding of possession. Both the courts have found that the
appellant was not the possession holder of the disputed place since last 30
years. So when plaintiff has admitted that he was not the possession holder of
the disputed property then the trial court as well as first appellate on the basis of
the aforesaid evidence have given a concurrent finding that appellant has failed
to prove his possession over the disputed property. So in the light of the
aforesaid discussion, in the considered opinion of this Court, the impugned
judgment and decree passed by the trial court as well as first appellate court are
well reasoned and based on oral and documentary evidence available on record
as well as admission of the plaintiff in evidence. The finding recorded by the
trial court as well as first appellate court are concurrent finding of fact in regard
to possession. The appellant has failed to show that how the finding of fact
recorded by both the courts are illegal, perverse and based on no evidence.
Thus, no substantial question of law arises for consideration in this appeal.
10. In the result, the appeal being devoid of merit is hereby dismissed in
admission stage itself.
(HIRDESH)
JUDGE
hk/
