Madhya Pradesh High Court
Radheshyam vs Late Badrilal (Deceased) Through Lr ... on 2 May, 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 2 nd OF MAY, 2024
SECOND APPEAL No. 432 of 2016
BETWEEN:-
RADHESHYAM S/O NATHULAL, AGED ABOUT 60 YEARS,
OCCUPATION: BUSINESS, R/O: SOYATKALA, DIST.
AGAR MALWA (MADHYA PRADESH)
.....APPELLANT
(SHRI MOEED ALI BOHRA - ADVOCATE)
AND
1. LATE BADRILAL (DECEASED) THROUGH LR.
BHAVRIBAI W/O LATE BADRILAL, AGED ABOUT
72 YEARS, R/O: SOYATKALAL, TEHSIL SUSNER,
DIST. AGAR (MADHYA PRADESH)
2. LATE BADRILAL (DECEASED) THROUGH LR.
MOHANLAL S/O LT BADRILAL, AGED ABOUT 37
YE A R S , SOYATKALA, TEHSIL SUSNER, DIST.
AGAR (MADHYA PRADESH)
3. SURESHCHANDRA S/O BADRILAL, AGED ABOUT
37 YEARS, R/O: SOYATKALA, TEHSIL SUSNER,
DIST. AGAR (MADHYA PRADESH)
4. KRISHNABAI D/O BADRILAL JAWAHAR NAGAR,
R/O: JHALAWAD, RAJASTHAN (RAJASTHAN)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Appellant has preferred this second appeal under Section 100 of Code of
Civil Procedure, 1908 (in short, 'CPC') being aggrieved by the impugned
judgment and decree dated 22.07.2016 passed in RCA No.04/2014 by
Additional District Judge Susner, District Shajapur, thereby affirming the
judgment and decree dated 17.12.2013 passed by the Civil Judge Class I,
Susner, District Shajapur in civil suit No.60-A/2013, whereby appellant /
plaintiff's suit for declaration of tile and permanent injunction has been
dismissed.
2. Appellant / plaintiff has filed a civil suit before the trial Court for
declaration of title and permanent and mandatory injunction by stating that he is
the owner of shop situated at Sadar Bazar, Soyatkala, which is purchased by
his forefather Devilal through registered sale deed dated 04.01.1937.
Respondents / defendants are the neighbour of plaintiff and they are threatening
the plaintiff for breaking the disputed wall. If the disputed wall will remove, then
the entire roof of plaintiff will collapse and he will suffer irreparable loss.
3. Respondents / defendants before the trial Court denied all the
averments made in the plaint by stating that they are the owner of disputed wall,
which has been duly constructed by them in the year 1959 after obtaining prior
sanction of Gram Panchayat, Soyatkala.
4. The trial Court on the basis of aforesaid pleadings framed the issues
and directed both the parties to adduce the evidence and after appreciating the
evidence available on record, dismissed the suit filed by the appellant / plaintiff,
then appellant / plaintiff preferred a first appeal, but same has also been
dismissed vide judgment and decree dated 22.07.2016. Being aggrieved by the
impugned judgments and decrees passed by both the Courts below appellant
has preferred this second appeal.
5. Learned counsel for the appellant contended that judgments and
decrees passed by both the Courts below are perverse to facts and law on
record. Both the Courts below have erred in properly appreciating the issues on
facts and ignoring the documentary as well as oral evidence. Thus, in view of
the aforesaid, learned counsel for appellant submits that the present appeal
deserves to be admitted on the substantial question of law so proposed by the
appellant.
6. I have gone through the impugned judgments and decrees passed by
both the courts below and also perused the entire record with due care.
7. Appellant Radheshyam deposed before the trial Court that his
grandfather Devilal have purchased the aforesaid shop in the year 1937 by a
registered sale deed (Ex.P-10). From perusal of aforesaid sale deed, it reveals
that the length of shop is 29 ft and width is 8 ft, but in the map filed by appellant
/ plaintiff length of shop was 30 ft and width was 8 and 1/2 ft, therefore, there is
material difference in the description mentioned in the sale deed (Ex.P-10) and
map produced by appellant / plaintiff.
8. Per contra, learned counsel for the respondent / defendant Suresh
Chandra submits that he has constructed his shop after obtaining the prior
permission given by the Nagar Panchayat, Soyatkala. The permission for
construction of defendants' house is also proved as (Ex.D-6) and map (Ex.D-
7). It is also noteworthy that the statement of respondents / defendants is also
supported by document (Ex.D-8).
9. On the basis of aforesaid evidence available on record, the appellant /
plaintiff has failed to prove that respondents are raising construction over the
western wall of appellant's building. On the contrary, from the evidence
available on record it is proved that respondents / defendants have constructed
their house on their own wall. Appellant / plaintiff has failed to prove that
respondents / defendants are raising any construction over any wall owned by
appellant. On the basis of above evidence, appellant has failed to prove his case
Courts below.
10. In view of the aforesaid discussion, this court is of the considered
opinion that the judgments and decrees passed by both the courts below are
based upon due appreciation of oral as well as documentary evidence available
on record. The findings recorded by both the Courts below are concurrent
finding of fact.
11 . Learned counsel for appellant has failed to show that how the
findings of fact recorded by both the Courts below are illegal, perverse and
based on no evidence. Thus, no substantial question of law arises for
consideration in present second appeal.
12. The Hon'ble Apex court in number of cases has held that in exercise
of power under Section 100 of CPC, the Court can interfere with the findings of
fact, only if same is shown to be perverse and based on no evidence.(See:
Union of India Vs. Ibrahim Uddin reported in 2012(8) SCC 148)
13. Accordingly, the present second appeal being sans merit, is hereby
dismissed at motion stage. No order as to cost.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Anushree
