Madhya Pradesh High Court
Sudarshan Kumar Mishra vs Mujju Khan on 21 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 21th OF FEBRUARY, 2024
SECOND APPEAL NO. 1331 of 2021
BETWEEN:-
SUDARSHAN KUMAR MISHRA S/O LATE
SHRI SHYAM SUNDAR MISHRA, AGED ABOUT
42 YEARS, R/O AZAD CHOWK, GATARGHAT,
RAM MANDIR, KATNI, DISTRICT KATNI
(MADHYA PRADESH)
.....APPELLANT
(SHRI O.P. NAMDEO - ADVOCATE FOR APPELLANT)
AND
MUJJU KHAN S/O LATE RAZZAB KHAN,
AGED 54 YEARS, R/O ANAND BIHAR COLONY,
BEHIND DR. VIKASH GUPTA, MADAN MOHAN
CHOUBEY WARD, KATNI, TAHSIL AND
DISTRICT KATNI (MADHYA PRADESH)
.....RESPONDENT
(SMT. ASEEM GEORGE - ADVOCATE FOR RESPONDENT)
--------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the following:
ORDER
Heard on admission.
This Second Appeal has been preferred by the appellant/plaintiff
under Section 100 of the Code of Civil Procedure being aggrieved by
the judgment and decree dated 09/08/2021 passed by Principal District
Judge, Katni (M.P.) in Regular Civil Appeal No.06/2019, whereby
learned Principal District Judge dismissed the appeal and affirmed the
judgment and decree dated 07/12/2018 passed by Seventh Civil Judge
Class-II, Katni (M.P.) in Civil Suit No.59-A/2010, whereby the suit
filed by appellant/plaintiff for delivery of possession, mandatory
injunction and mense profit was dismissed.
2. Brief facts of the case are that the appellant/plaintiff filed a civil
suit before the learned trial Court for delivery of possession, mandatory
injunction and mense profit against respondent/defendant, regarding
land situated in village Mudwara, Bandobast No. 493 bearing Khasra
Nos. 1129, 1130, 1131 and 1132 (20x45) ad-measuring 900 sq.ft. Out
of total area 7650 sq. ft. situated at Madan Mohan Choubey Ward,
Katni (M.P.). The appellant agreed to purchase the above said land
from Smt. Aban Bi Wd/o B.C. Bajan, vide agreement dated
14/01/1994, for consideration of Rs.1,50,000/- (One Lakh Fifty
Thousand) for the area of suit land 170 sq.ft. (On west side) and 45 sq.
ft (on North Side). However, Aban Bi failed to perform the conditions
of agreement and she did not execute the sale deed within prescribed
period. Therefore, appellant filed civil suit No. 5-A/1995 before IInd
Additional District Judge, Mudwara, Katni for specific performance of
contract against Smt. Aban Bi. The said suit was decreed and after
filing execution proceedings, the sale deed was executed in favour of
appellant by learned trial Court and the possession of the said land was
given by the Machkuri to the appellant but out of total land ad-
measuring 7650 sq.ft, the possession of 6750 sq.ft was given, and
remaining 900 sq.ft. land was illegally possessed by the respondent (as
per Process Server report), therefore, the appellant filed civil suit for
delivery of possession, mandatory injunction and mense profit against
respondent/defendant.
3. Respondent/defendant denied the averments mentioned in plaint
in his written statement and prays for dismissal of suit with cost.
Learned trial Court after framing of issues and recording of evidence,
dismissed the suit, against which appellant/plaintiff preferred an
appeal, which was also dismissed, against which present second appeal
has been filed.
4. Appellant has filed this appeal challenging the concurrent
finding of the trial Court as well as First Appellate Court on the
following substantial questions of law :-
" 1. Whether under the facts and circumstances
of the case, the suit of the plaintiff/appellant is not
proved by the plaintiff/appellant.?
2. Whether under the facts and circumstances
of the case, learned Appellate Court has right for
confirming the trial Court's decree and dismissing the
appeal .?
3. Whether new facts and circumstances have
been arisen during the trial on said basis why not
remanded the matter to trial Court by learned
Appellate Court. ?"
5. Learned counsel for the appellant submitted that learned trial
Court as well as learned First Appellate Court have failed to appreciate
the oral and documentary evidence in its correct perspective. Hence, he
prays for admission of present appeal on the proposed substantial
questions of law. During arguments, learned counsel for appellant
conceded that the plaintiff has filed the civil suit only on the basis of
report of process server and also admitted that plaintiff has not got the
suit property demarcated from the revenue authority, which he has
purchased from Smt. Aban Bi Wd/o B.C. Bajan.
6. I have heard the contentions of learned counsel for the appellant,
perused the record & gone through the impugned judgment.
7. It reveals from the record that learned trial Court has properly
appreciated the evidence available on record and it was found that the
respondent/defendant has not encroached upon the suit property.
Process Server, Anant Kumar Mishra has been examined before the
trial Court as (PW 2), who admitted in para No.4 that he does not
identify the respondent/defendant and he has written the said report at
the instance of plaintiff/appellant. Hence, learned trial Court dismissed
the suit.
8. It also reveals from the record that learned First Appellate Court
also appreciated the evidence available on record and in para No.19 of
the impugned judgment, it has found that respondent/defendant is not
the possession holder of the suit land but Mohd. Muhsin and his wife
Dilshah Khan and Samrin Fatima are the possession holders of the suit
land and they were not impleaded as party in the civil suit, therefore,
dismissed the appeal by extending liberty to the appellant/plaintiff that
if he wants any relief against Mohd. Muhsin and his wife Dilshah Khan
and Samrin Fatima, then he can file separate suit against them.
9. It reveals from the judgment of trial Court as well as First
Appellate Court that both the courts have considered the pleadings of
the parties and evidence placed on record and after marshaling the
entire evidence, the issues involved in the case were properly decided
by the trial Court as well as First Appellate Court. There are concurrent
findings of fact by both the Courts. Learned counsel for appellant is
unable to show that those findings are either contrary to record or
perverse. Learned counsel for the appellant is also not able to point out
any substantial question of law, which needs adjudication in this
second Appeal.
10. In the case of Kondiba Dagadu Kadam vs Savitkibai Sopan
Gujar And Ors., (1999) 3 SCC 722 Hon'ble Apex Court held that the
High Court must satisfy itself that substantial question of law is
involved and must then formulate the question of law on which the
appeal could then be heard. It is also held that the concurrent findings
of fact however erroneous cannot be disturbed under Section 100 of the
CPC.
11. In the case of Suresh Lataruji Ramteke Vs. Sau. Sumanbai
Pandurang Petkar & Others, 2023 LiveLaw (SC) 821 Hon'ble Apex
Court has held that a Court sitting in second appellate jurisdiction in
ordinary course, the High Court in such jurisdiction does not interfere
with finding of fact.
12. As discussed above, in view of concurrent findings of the fact, I
find no reason to entertain this appeal. Hence, appeal sans merit and is
hereby dismissed.
13. Cost of the appeal will be borne by the appellant himself.
14. Let the record of the trial Court as well as First Appellate Court
be sent back to the concerned Court alongwith the copy of this order.
(AMAR NATH (KESHARWANI))
JUDGE
skt
