Madhya Pradesh High Court
Vitthaldas vs Dwarkadas 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. 234 of 2023
BETWEEN:-
VITTHALDAS S/O LATE KRISHNALAL SARAF, AGED
ABOUT 67 YEARS, OCCUPATION: BUSINESS, R/O:
VITTHAL MANDIR PATH, KHARGONE, DISTRICT
KHARGONE (MADHYA PRADESH)
.....APPELLANT
(SHRI SAMEER ANANT ATHAWALE - ADVOCATE)
AND
1. DWARKADAS S/O VITTHALDAS, AGED ABOUT 58
YEARS, OCCUPATION: BUSINESS, R/O: VITTHAL
MANDIR PATH, KHARGONE, DISTRICT
KHARGONE (MADHYA PRADESH)
2. KANHAIYALAL S/O VITTHALDAS, AGED ABOUT 53
YEARS, OCCUPATION: BUSINESS, R/O: VITTHAL
MANDIR PATH, KHARGONE, DISTRICT
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been filed by the appellant / plaintiff under
Section 100 of Code of Civil Procedure 1908, (in short, 'CPC') against the
impugned judgment and decree dated 13.12.2022 passed by the I Additional
District Judge, Khargone in Civil Appeal No.12/2022 thereby affirming the
judgment and decree dated 31.03.2022 passed by the I Civil Judge, Junior
Division, Khargone in Civil Suit No.71-A/2019, whereby appellant / plaintiff's
suit seeking decree for permanent injunction, has been dismissed.
2. Brief facts of the case are that the appellant / plaintiff instituted a suit
inter alia claiming that he is the owner and possession holder of the house
situated at Vittal Mandir Path, Khargone and on the southern side of his house,
the house of the defendants is situated. The plaintiff is using the way / passage
from eastern to southern side, which is mentioned in the registered document of
the defendants. On 05.11.2019, defendants started demolishing his dilapidated
house and tried to remove the door from south-eastern side with an intention to
close the door for forever. When the plaintiff objected, then defendants denied
the same by stating that during the rainy reason, the wall of the southern side as
well as the door fall down. Hence, he prays that the defendants be restrained
from creating obstruction in the way / passage of the plaintiff by placing the
door.
3. The defendants in their written statement denied the ownership of the
plaintiff's house by submitting that right of way / passage exists in the house of
defendants, which belongs to them and suit deserves to be dismissed.
4. On the aforesaid pleadings, the trial Court framed the issues and
permitted the parties to adduce their evidence. The trial Court after hearing both
the parties dismissed the suit filed by the appellant. Then the appellant preferred
first appeal before the lower appellate Court, but lower appellate Court upon re-
appreciating the entire evidence based on record affirmed the findings of facts
so recorded by the trial Court.
5. Learned counsel for the appellant contended that the judgments and
decrees passed by both the Courts below are illegal and not based upon the
proper appreciation of evidence. Both the Courts below have failed to consider
the oral as well as documentary evidence produced by both the parties. The
document (Ex. P-9) is of the year 1932, which clearly demonstrates that the
seller of the property sold out the same to the ancestors of the defendants. A
door from the eastern side portion of these three chasmas and on the northern
side of the property a right of way / passage exists for Nanuram and Motilal
Saraf (ancestors of plaintiff). Both the Courts below have ignored the pleadings
made by the appellant. Findings of Courts below is perverse, which is against
the evidence available on record, thus in the light of the aforesaid, he prays that
the appeal deserves to be admitted on the substantial questions of law proposed
by the appellant.
7. In the instant case, the appellant / plaintiff claimed right of way /
passage, which was given by owner of ancestors of the plaintiff. Although in the
documents (Ex. P-9) some way / passage has been mentioned, but it is
noteworthy that (Ex. P-9) cannot be considered as a registered sale deed its
only a revenue record, which does not confer any title or any easementary right
in favour of the appellant / plaintiff. Appellant has not proved any relevant
revenue documents to establish his right of way / passage over the suit
property. Apart from the above, the appellant / plaintiff has examined
Shyamsunder (PW-2), who is the neighbour of appellant, but in his cross-
examination Shyamsunder failed to explain that what are the four boundaries
(chouhaddi seema) of the plaintiff. He did not state anything against the plaintiff
and other persons are using the disputed way / passage for last 19 years as a
customary way / passage.
7. Apart from the above, it is also noteworthy that appellant has not
produced any demarcation report regarding the disputed land. During the
pendency of the civil suit and the first appeal, appellant did not file any relevant
application for appointment of the Commissioner for the purpose of local
inspection. Hence, in absence of cogent evidence, appellant has failed to prove
that there was a customary way / passage on the disputed land. Both the Courts
below have given a concurrent finding that the appellant and other villagers are
not using the land in dispute as a way / passage, therefore, the appellant /
plaintiff has failed to establish his right to way / passage under Section 131 of
M.P. Land Revenue Code, 1959.
8. In the light of the aforesaid discussion, this Court is of the considered
opinion that the impugned judgments and decrees passed by the Courts below
are well reasoned and based upon due appreciation of oral as well as
documentary evidence available on record. The findings recorded by both the
Courts below are concurrent findings of facts. Appellant has failed to show that
how the findings of the facts recorded by the Courts below are illegal, perverse
or based upon no evidence. Thus, no substantial questions of law arises for
consideration of the present second appeal.
9. Hon'ble the Apex Court in the numbers of cases as held that in
exercising of powers under Section 100 of CPC court can interfere with the
findings of facts only if the same is shown to be perverse and based upon no
evidence. Some of these judgments are Hajazat Hussain Vs. Abdul Majeed
and Ors. 2011 (2007) SCC 189 and Union of India Vs. Ibrahim Uddin,
2012 (8) SCC 148.
10. Accordingly, the present appeal sans merit substance is hereby
dismissed at the admission stage for the reasons indicated herein above. No
order as to costs.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Anushree
