Madhya Pradesh High Court
Dhanlal vs Om Das on 5 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 5 th OF MARCH, 2024
SECOND APPEAL No. 2285 of 2023
BETWEEN:-
DHANLAL S/O MANGILAL, AGED ABOUT 52 YEARS,
OCCUPATION: FARMER R/O VILLAGE BAMHANGAON
TEHSIL KHIRKIYA DISTRICT HARDA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI BHUPENDRA KUMAR SHUKLA - ADVOCATE)
AND
1. OM DAS S/O HAVYA, AGED ABOUT 74 YEARS,
OCCUPATION: CASTE KATIYA R/O VILLAGE
BAMHANGAON TEHSIL KHIRKIYA DISTRICT
HARDA (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR HARDA DISTRICT HARDA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VINOD TIWARI - PANEL LAWYER FOR THE STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred under Section 100 of C.P.C.,
1908 feeling aggrieved by the judgment and decree dated 27.07.2023 in Regular
Civil Appeal no.22/2023 passed by Principal District Judge, Harda, District
Harda arising out of judgment dated 02.02.2023 in Civil Suit no.20-A/2018 by
Civil Judge, Senior Division, Khirkiya, District Harda (M.P.).
2. Facts in brief are that the father of appellant/plaintiff-Mangilal and
defendant/respondent no.1 are real brothers. Plaintiff/appellant filed a civil suit
for declaration of title and permanent injunction regarding a house situated at
survey no.66 and 88/4 village Bamhangaon, Tehsil Khirkiya, District Harda
demarcated in plaint on the ground that earlier the survey no.66 and 88/4 was in
the ownership of plaintiff's father Mangilal and defendant no.1 jointly. The
agricultural land of survey no.66 and 88/4 area 3.04 acre given to defendant
no.1 in family partition but the suit house situated at those survey numbers was
given to the father of plaintiff and plaintiff was in possession from 30-40 years.
The possession of the plaintiff from 30-40 years was in the knowledge of
defendant no.1 never objected to the possession of plaintiff over the suit house.
He was in peaceful possession of the property of the house. Earlier the suit
house was made with mud but plaintiff constructed a house by bricks and
cement under the grant of Indira Awas Yojana at that time also defendant no.1
did not objected. But now on the precision of some mischief plea, defendant
no.1 is trying to evict the plaintiff from the suit house then this suit has been
filed on 18.05.2018.
3. Defendant no.1 contested the case and specifically made the averments
from the time of partition, the house alongwith land is in his possession now
they started to construct the house with the grant under Indira Awas Yojana
then plaintiff is creating nuisance and he claimed his right over the suit house.
4. Trial Court framed the four issues and recorded the evidence of
plaintiff-Dhannalal (PW-1), Sunderlal (PW-2), Shankarlal (PW-3) and admitted
the documents Ex.P-1 to P-4. Defendant also examined himself as DW-1, Kanta
Prasad Nagle (DW-2) and adduced the documents Ex.D-1 to D-4.
5. Trial Court vide judgment and decree dated 07.05.2019 dismissed the
suit challenging the Trial Court judgment and decree dated 07.05.2019 in RCA
no.466/2019 was preferred before the District Judge, Harda and vide judgment
and decree dated 18.02.2020 the case was remain to the Trial Court alongwith
the application of plaintiffs under Order 41 Rule 27 of CPC with a direction that
both the parties should be granted opportunity to lead the evidence and a
Revenue Officer should be appointed to present the report.
6. Trial Court issued the commission and report in the form of Ex.P-5, P-
6 and P-7 was received and concerned Patwari of Halka no. 5 Shri Pankaj
Bachhaniya examined as PW-4.
7. Appreciating the evidence, Trial Court recorded the findings on all
issues against plaintiff/appellant and dismissed the suit. Apex Court also
affirmed the findings of Trial Court.
8. Feeling dissatisfied with the judgment and decree of both the Courts
below, this Section Appeal has been preferred proposing substantial questions
of law as below :-
(i) Whether, the finding of the learned courts below are correct and
justified?
(ii) Whether, the judgment and decree passed by the Court below to
justify to non-compliance of the remand order which is passed by the learned
Lower Appellate Court in earlier occasion?
(iii) Whether the finding of the Courts below is justified regarding to the
adverse possession of the appellant?
(iv) Whether the findings recorded by the learned Courts below are
perverse?
(v) Whether the learned Trial Court is rightly framed the issues regarding
to the disputed land?
9. Perused the record. In compliance of the judgment dated 18.02.2020 in
Regular Civil Appeal no.35/2019, a commission was issued and report
submitted was taken on record and Pankaj Bachhaniya, Patwari was examined
as PW-4. It is not pointed out which direction has not been complied with. In
para-2 of the plaint itself it is mentioned that land of agricultural land survey no.
66 and 88/4 was given to defendant no.1 in family partition. This plea is
contradictory that house situated on the land, that was given to defendant no.1,
was received by the plaintiff and he is in possession of the house since 30-40
years as he himself has claimed his age 48 years. Trial Court has duly
considered the evidence of Patwari Pankaj Bachhaniya (PW-4) in para 23 and
24 of the judgment. Reasons for recording the possession of plaintiffs are not
perverse. No material regarding the aid granted in Indira Awas Yojana has been
put on record. Findings of facts are not to be interfered with in the second
appeal.
10. No substantial question of law is made out. This Second Appeal is
not fit to be admitted. This Second appeal dismissed at the admission stage.
(GAJENDRA SINGH)
JUDGE
HK
