Madhya Pradesh High Court
Maheshchandra vs Vijay Patidar on 1 March, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 1 st OF MARCH, 2024
SECOND APPEAL No. 289 of 2023
BETWEEN:-
MAHESHCHANDRA S/O SHRI RAMCHANDRA, AGED
ABOUT 46 YEARS, OCCUPATION: AGRICULTURIST, R/O
GRAM KACHNARIYA, TEHSIL MAKDON, DISTRICT
UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI LOKESH KUMAR BHATNAGAR - ADVOCATE)
AND
1. VIJAY PATIDAR S/O SHRI SUBHASHCHANDRA
PATIDAR, AGED ABOUT 31 YEARS, OCCUPATION:
STUDENT, R/O GRAM KACHNARIYA, TEHSIL
MAKDON, DISTRICT UJJAIN (MADHYA PRADESH)
2. SUBHASCHANDRA S/O KANHAIYALAL PATIDAR,
AGED ABOUT 55 YEARS, OCCUPATION:
AGRICULTURE, R/O KACHNARIYA, TEH.
MAKDON, DISTRICT UJJAIN (MADHYA PRADESH)
3. CHANDRA PRAKASH S/O SIYARAM PATIDAR,
AGED ABOUT 47 YEARS, OCCUPATION:
AGRICULTURIST AND DOCTOR BAMS, R/O
KACHNARIYA, TEH. MAKDON, DISTRICT UJJAIN,
AT PRESENT UJJAIN (MADHYA PRADESH)
4. MAHENDRA S/O SIYARAM PATIDAR, AGED
ABOUT 45 YEARS, OCCUPATION:
AGRICULTURIST, R/O GRAM KACHNARIYA, TEH.
MAKDON, DISTRICT UJJAIN (MADHYA PRADESH)
5. STATE OF M.P. THROUGH COLLECTOR UJJAIN
OFFICE KOTHI PALACE, UJJAIN, DIST. UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(MR. ARVIND PARMAR - ADVOCATE FOR RESPONDENT NO.1 TO 4; AND
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 05-03-2024
10:53:24
2
MS. NISHA TANWAR - PANEL LAWYER FOR RESPONDENT NO.5/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on the question of admission.
2. This second appeal has been preferred by the appellant/plaintiff under
Section 100 of Code of Civil Procedure, 1908 (in short, 'CPC') against the
impugned judgment and decree dated 22/11/2022 passed by District Judge,
Tehsil Tarana, District Ujjain (M.P.) in Regular Civil Appeal No.10/2021,
thereby affirming the the judgment and decree dated 01/10/2021 passed by the I
Additional Civil Judge, Senior Division, Tarana, District Ujjain (M.P.) in Civil
Suit No.59-A/2018 by which the suit for permanent injunction has been
dismissed and counter claim filed by the respondents No.1 and 2/defendants
for permanent injunction has been allowed.
3. The facts of the case in brief are that appellant/plaintiff preferred a civil
suit for permanent injunction against the defendants by stating that the plaintiff's
ownership land bearing survey No.24/2, which is adjacent from the northern
side of the boundary of defendant No.1's land bearing survey No.24/1.
Plaintiff's land is surrounded by the southern boundary of survey No.25 and
No.24/1. The defendants want to interfere in the peaceful possession of the
plaintiff over the suit land, therefore, a prayer was made to restrain them from
interfering in the peaceful possession of the plaintiff's land.
4. The respondents/defendants in their written statement denied the plaint
allegations and pleaded that plaintiff wants to grab the tube well situated at
survey No.24/1 under the garb of injunction. The name of respondent No.1
Vijay Patidar has been mutated in respect of the land bearing survey No.24/1
and he is the owner of the land, therefore, the defendants No.1 and 2 have also
filed a counter claim for permanent injunction.
5. On the aforesaid pleadings, the trial Court has framed the issues and
permitted both the parties to adduce their evidence. The trial Court after hearing
both the sides has dismissed the suit filed by the appellant/plaintiff and allowed
the counter claim filed by the respondents/defendants by the impugned
judgment and decree dated 01/10/2021. Being aggrieved by the same,
appellant/plaintiff has preferred an appeal before the lower appellate Court on
various grounds, but same has also been dismissed vide judgment and decree
dated 22/11/2022 by affirming the judgment and decree passed by the trial
Court. Being aggrieved by the same, this second appeal has been filed.
6. Learned counsel for the appellant/plaintiff contended that both the
Courts below have committed grave error of law and facts. The judgments and
decrees passed by both the Courts below are patently illegal, against the settled
position of law and based upon the conjectures and surmises. Both the Courts
below have failed to consider the oral as well as documentary evidence
produced by both the parties. The lower appellate Court has erred in holding
that the disputed tube well was situated on the land bearing survey No.24/1. The
lower appellate Court has also erred in rejecting the application of the appellant
preferred under Order XLI Rule 27 read with Section 151 of CPC. Thus, in
light of the aforesaid, he prays that the instant appeal deserves to be admitted
on the substantial questions of law so proposed by the appellant.
7. From perusal of the sale deed (Ex.-D/1) it is proved that defendants
No.1 and 2 have purchased the land bearing survey No.24/1 area 0.01 hectare
(Aare) from seller / actual owner Laxminarayan Patidar and in the sale deed
(Ex.-D/2) it is categorically mentioned that the tube well situated on the
aforesaid land is also sold out to the respondents No.1 and 2/defendants. The
appellant/plaintiff has also filed a sale deed (Ex.-P/1), but in the said sale deed
there is no recital regarding any customary right of way (passage). The
appellant/plaintiff Maheshchandra admitted in his cross-examination that
demarcation has been done in respect of the suit land, but he has not produce
the said demarcation report, therefore, the appellant/plaintiff has failed to prove
his case before both the Courts below.
8. So far as the appellant's applicant under Order XLI Rule 27 of CPC is
concerned, Hon'ble the apex Court in the case of N. Kamalam and Another
Vs. Ayyasamy and Another reported in (2001) SCC 503 has held that "the
provisions of Order 41 Rule 27 have not been engrafted in the Code so as to
patch up the weak points in the case and to fill up the omission in the court of
appeal. It does not authorize any lacunae or gaps in the evidence to be filled
up. The authority and jurisdiction as conferred on to the appellate Court to
let in fresh evidence is restricted to the purpose of pronouncement of judgment
in a particular way."
9. On the basis of the aforesaid judgment, this Court is of the considered
opinion that appellant/plaintiff has not produced any relevant document during
the pendency of the suit despite availing the sufficient opportunity. These
documents are the certified copies of the revenue papers, which may also be
available during the pendency of the suit, therefore, both the Courts below have
rightly rejected the application filed under Order XLI Rule 27 read with Section
151 of CPC filed by the appellant/plaintiff.
10. In light of the aforesaid discussions, this Court is of the considered
view that the judgments and decrees passed by both the Courts below are well
reasoned and based on due appreciation of oral as well as documentary
evidence available on record. The findings recorded by both the Courts below
are the concurrent findings of facts. Learned counsel for the appellant/plaintiff
has failed to show that how the findings of fact recorded by the Courts below
are illegal, perverse or based on no evidence. Thus, no substantial question of
law arises for consideration in present second appeal.
11. The enunciation of law by the Hon'ble Apex Court in the case of
Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah
Gaon) Patam reported in (2015) 16 SCC 540 empowers this Court to finally
dispose of this appeal without framing the substantial questions of law at the
admission stage itself. The observation made by Hon'ble Supreme Court is
reproduced herein below :-
"In our opinion, a substantial question of law is not
required to be framed if the High Court decides to
dismiss the second appeal at an admission stage.
Only in a case where the second appeal is admitted
or is decided finally by allowing the same, a
substantial question of law is required to be framed
by law was involved in the second appeal and
therefore, the High Court had rightly dismissed the
second appeal at the admission stage by passing the
impugned order. We, therefore, see no reason to
entertain this Petition."
12. The Supreme Court in number of cases has held that in exercise of
powers under Section 100 of the Code of Civil Procedure this Court can
interfere with the findings of fact only if the same is shown to be perverse and
based on no evidence. Some of these judgments are Hajazat Hussain vs.
Abdul Majeed & others, 2011 (7) SCC, 189, Union of India vs. Ibrahim
Uddin, 2012 (8) SCC 148 and Vishwanath Agrawal vs. Sarla Vishwanath
Agrawal, 2012 (7) SCC 288.
13. Accordingly, present second appeal sans merit and is hereby
dismissed at the admission stage for the reasons indicated above.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Tej
