Madhya Pradesh High Court
Hariom @ Ganesh vs Sherajmeen on 22 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 22 nd OF FEBRUARY, 2024
SECOND APPEAL No. 811 of 2020
BETWEEN:-
1. HARIOM @ GANESH S/O PARMANAND JI
PATIDAR, AGED ABOUT 27 YEARS, OCCUPATION
AGRICULTURE, R/O GRAM BUDA TEH.
MALHARGARH DISTRICT MANDSAUR (MADHYA
PRADESH)
2. SMT. SURAJBAI W/O LATE PRAMANAND JI
PATIDAR, AGED ABOUT 47 YEARS, OCCUPATION:
HOUSEHOLD R/O GRAM BUDA TEH.
MALHARGARH DISTRICT MANDSAUR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SANJAY KUMAR SHARMA - ADVOCATE)
AND
1. SHERJMEEN S/O SHAHJANHA, AGED ABOUT 25
YEARS, OCCUPATION: AGRICULTURE R/O GRAM
LASUDIYAILA TEH. DALAUDA DISTRICT
MANDSAUR (MADHYA PRADESH)
2. SMT. BHAWARBAI WD/O LATE CHAINRAM JI
PATIDAR, AGED ABOUT 80 YEARS, OCCUPATION:
HOUSEHOLD GRAM AMLAVAD TEH. AND DIST.
MANDSAUR (MADHYA PRADESH)
3. STATE OF MP THROUGH COLLECTOR
MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This present second appeal under Section 100 of CPC has been filed by
the appellants/plaintiffs being aggrieved by the judgment and decree dated
07.01.2020 passed by I Additional District Judge, district Mandsaur in Regular
Civil Appeal No.186/2017 affirming the judgment and decree dated 04.11.2016
passed by the learned I Civil Judge, Class-II, Narayangarh, district Mandsaur in
Civil Suit No.91-A/ 2013 filed by the appellants/plaintiffs for declaration of title
and for permanent injunction over the suit house and declaring the sale deed
dated 12.01.2019 as null and void.
2. The brief facts of the case is that appellants/plaintiffs filed a civil suit
before the trial Court for declaration of title and permanent injunction and
declaring the sale deed dated 12.01.2019 as null and void in favour the plaintiff
and against the respondent in relation to the suit land survey no.2593 and
constructed house in that survey number situated at village Buda, Tehsil
Malhargarh, district Mandsaur by stating that the suit property is the ancestral
property of Chainram. This property has been received by Chainram from his
father Nirbhayram and Nirbhayram received this property from his father Gopal.
The plaintiffs/appellants have vested right in the suit property by birth and in
partition in the year 2006 the appellants/plaintiffs got the suit land and house in
their share. It is further pleaded that Chainram sold this property to respondent
no.1 on 12.01.2019 without having any right. So plaintiff/appellants have
possession of the suit land and they are the owners of the suit land. Respondent
no.1 is disturbing the possession, so a civil suit was filed for declaration of title
and permanent injunction and declaring the sale deed dated 12.01.2019 as null
and void.
3. Respondent no.1 filed a written statement and pleaded that Chainram
have right to sale disputed property so Chainram executed sale deed in favour
of respondent no.1 and prayed for dismissing the suit.
4. The trial Court framed issues on the basis of the aforesaid pleadings
and after recording the evidence of the parties, dismissed the suit filed by the
plaintiffs/appellants. Being aggrieved by the aforesaid judgment and decree, the
plaintiffs/appellants filed first appeal before the first appellate Court and the first
appellate Court also dismissed the appeal by affirming the judgment and decree
of the trial Court.
5. Being aggrieved by the judgment and decree passed by the first
appellate Court, the plaintiffs/appellants filed the present second appeal and
submitted that the judgment and decree passed by trial Court as well as the first
appellate Court are illegal and not based on proper appreciation of evidence. It
is further submitted that the plaintiffs/appellants are possession holder of the
suit land and got this land in partition and the trial Court as well as the first
appellate Court have failed to consider the oral and documentary evidence
produced by the appellants. The trial Court as well as the first appellate Court
erred in dismissing the suit preferred by the appellants/plaintiffs. The findings of
trial Court as well as the first appellate Court are perverse and against the
evidence available on record. Hence, it is submitted that the appeal deserves to
be admitted on the substantial questions of law proposed by the appellants.
6. Heard learned counsel for the appellants at length and perused the
entire record of the trial Court as well as the first appellate Court with due care.
7. From the perusal of the record it appears that plaintiffs/appellants filed
civil suit for declaration and permanent injunction and declaration of the sale
deed executed in favour of respondent no.1 as null and void. So the burden of
proof lies upon the appellants to prove their case that they got the disputed
property in partition. Perusal of the judgment of the trial Court, it is found that
trial Court held that plaintiffs' witness Raju admitted in cross examination that
partition has been done 15-20 years ago and in partition disputed house was
kept in his share by Chainram. Plaintiffs were unable to prove by way of
evidence that they got the disputed property in partition. Perusal of the records
of the trial Court as well as first appellate Court, it is found that plaintiffs were
unable to prove that they got the share of the disputed property in partition in
the year 2006. So on the basis of the aforesaid evidence of Raju (PW-4), the
trial Court as well as the first appellate Court have given concurrent finding that
appellants/plaintiffs failed to prove title over the suit property.
8. In the light of the aforesaid discussion, this Court is of the
considered opinion that the impugned judgment and decree passed by the trial
Court as well as the first appellate Court are well reasoned and based on due
appreciation of oral as well as documentary evidence available on record. The
findings recorded by the trial Court as well as the first appellate Court are
concurrent finding of fact. The appellants have failed to show how the findings
of fact recorded by the trial Court as well as the first appellate Court are illegal,
perverse and based on no evidence. Thus, no substantial of law arises for
consideration in the present appeal.
9. Accordingly, the present second appeal sans merit and is hereby
dismissed at admission stage for the reasons indicated above.
(HIRDESH)
JUDGE
RJ
