Madhya Pradesh High Court
Saranjit Singh vs Indraraj Prajapati on 18 June, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 18th OF JUNE, 2024
SECOND APPEAL No. 389 of 2019
BETWEEN:-
SARANJIT SINGH S/O LATE SHRI JAGIR SINGH, AGED
ABOUT 53 YEARS, OCCUPATION: AGRICULTURIST R/O
NEAR BUS STAND CHHATARPUR, TEHSIL AND
DISTRICT CHHATARPUR (MADHYA PRADESH)
.....APPELLANT/ PLAINTIFF
(BY SHRI ANOOP SAXENA - ADVOCATE )
AND
INDRARAJ PRAJAPATI S/O GHASIYA PRAJAPATI R/O
1. SAURA RPAD CHHATARPUR, TEHSIL AND DISTRICT
CHHATARPUR (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH
2. COLLECTOR, DISTT - CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS/ DEFENDANTS
(BY KU. K.C.V. RAO - PANEL LAWYER FOR THE RESPONDENT NO.2/ STATE)
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Reserved on : 18.03.2024
Pronounced on : 18.06.2024
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This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following:
JUDGMENT
1) This second appeal has been filed by the appellant/ plaintiff who has
lost in both the Courts. It is submitted that both the Courts committed an
error by not issuing Commission for inspection of the suit land under
Order 26, Rule 9 of C.P.C. The First Appellate Court did not allow the
application under Order 41, Rule 27 of C.P.C., therefore, prayer for
admission.
2) Perused the record.
3) The appellant/ plaintiff Jagir Singh, deceased through legal
representative Smt. Amarjit Kaur and others filed a civil suit No. 9/2011
against Indraraj Prajapati and State of M.P. for declaration of title,
permanent injunction and for getting back the land which was encroached
during pendency of the suit.
4) It is submitted that suit land is situated in village Saura, Khasra No.
1328, new khasra No. 2172, area 2 are. It was not disputed between the
parties that defendant No. 1 Indraraj Prajapati had purchased a plot of
dimension 30x 60 feet.
5) In very brief the case of the plaintiff was that they had sold a plot of
dimension 1800 Sq. Ft to defendant No.1 but he has encroached on his
other land. The trial Court after considering the pleadings and evidence
dismissed the suit of the plaintiff vide judgment and decree dated
16.07.2013.
6) Learned First Appellate Court in R.C.A. No. 64A-13 vide judgment
and decree dated 26.10.2018 dismissed the appeal of the plaintiff,
therefore, this second appeal has been filed on the ground that Commission
was not issued. Application for additional evidence was also rejected.
7) Perused the record and considered the arguments.
8) Learned First Appellate Court vide order dated 26.10.2018 has
allowed the application under Order 41, Rule 27 of C.P.C. of the appellant/
plaintiff for taking documents on record. It is seen that along with
application copy of sale-deed dated 2.7.1960 (correct year seems 1968
from faint copy of document) by seller Badi Babu Bewa Halka in favour of
Jagir Singh has been filed. Also copy of order dated 18.03.2008 in revenue
case No. 37/A-6/2006-07 (Saranjit Singh Vs. State of M.P.). Khasra of
land for the years 2008-13 and 2011-13 have been filed. It is seen that
along with these documents as mentioned above, no application under
Order 6, Rule 17 of C.P.C. to amend the pleadings to avail an opportunity
of proving the document by way of additional evidence in appellate Court
or for remand of the case has been made. In para 12 of the judgment, the
learned First Appellate Court has referred to the documents which were
produced by the appellant in the appellate Court and has correctly held that
even on perusal of these documents it is not clear as to what parts of the
Khasra has been sold previously by plaintiff and has therefore not given
any benefit. In para 13 also the Court has correctly held that on the basis of
sale-deed no presumption can be made regarding encroachment by
defendant No.1 on any specific part.
9) On perusal of record, it is seen that the learned trial Court as well as
learned First Appellate Court have considered all legal and factual position
and what has been stated above by this Court, it is seen that no
Commission can be issued for ascertaining the boundaries of the suit land
unless all necessary parties are on record and in this case it seems that all
necessary parties required are not on record as the plaintiff/ appellant had
purchased the suit land in the year 1968 whereas the suit was filed on
17.05.2007, therefore, situation or ground must have definitely changed in
the intervening period. It is not the law that trial Court or First Appellate
Court are to issue Commission for inspection of the record automatically,
even when all necessary parties are not on record or when no prayer in this
regard is made by any party, therefore, this second appeal has no
substantial question of law on which this appeal can be admitted.
10) The jurisdiction of this Court to interfere with the findings of fact is
well defined by catena of decisions of Supreme Court. This Court in
exercise of powers under Section 100 of the Code of Civil Procedure can
interfere with the finding of fact only if the same is shown to be perverse
or based on no evidence. See. Narayanan Rajendran and another Vs.
Lekshmy Sarojni and others (2009) 5 SCC 264, Hafazat Hussain Vs.
Abdul Majeed and others (2011) 7 SCC 189, Union of India Vs. Ibrahim
Uddin and another, (2012) 8 SCC 148, D.R. Rathna Murthy Vs.
Ramappa (2011) 1 SCC 158, Vishwanath Agrawal Vs. Sarla Vishnath
Agrawal, (2012) 7 SCC 288 and Vanchala Bai Raghunath Ithape (dead)
by LR Vs. Shankar Rao Babu Rao Bhilare (dead) by LRs. and Others,
(2013) 7 SCC 173.
11) For the aforementioned reasons, no substantial question of law arises
for consideration in this appeal. The appeal fails and is hereby dismissed.
Let a copy of this judgment along with the record be sent back to the
concerned Court.
(AVANINDRA KUMAR SINGH)
JUDGE
VSG
