Lilabai vs Santosh
2024 Latest Caselaw 12387 MP

Madhya Pradesh High Court

Lilabai vs Santosh on 2 May, 2024

Author: Hirdesh

Bench: Hirdesh

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IN THE               HIGH COURT                       OF MADHYA PRADESH

                                    AT I N D O R E
                                           BEFORE
                      HON'BLE SHRI JUSTICE HIRDESH

                              ON THE 2nd OF MAY, 2024

                         SECOND APPEAL No. 270 of 2015

BETWEEN:-
1. LILABAI W/O ABHIMAN DHIWAR, AGED ABOUT 53 YEARS,
   OCCUPATION:   HOUSEHOLD    BALWADI   TEHSIL SENDHWA,
   DISTRICT-BARWANI (MADHYA PRADESH)
2. NAVAL S/O SHRI ABHIMAN DHIWAR, AGED ABOUT 31 YEARS,
   OCCUPATION: SERVICE BALWADI, TEHSIL SENDHWA, DISTRICT-
   BARWANI (MADHYA PRADESH)
3. RAMCHANDRA S/O SHRI ABHIMAN DHIWAR, AGED ABOUT 23
   YEARS, OCCUPATION: LABOURER BALWADI, TEHSIL SENDHWA,
   DISTRICT-BARWANI (MADHYA PRADESH)
4. ANITA W/O SHRI RAMESH SONVANE, AGED ABOUT 26 YEARS,
   OCCUPATION: HOUSEHOLD TARLA, DISTRICT JALGAON (MH)
   (MAHARASHTRA)
                                                                            .....APPELLANTS
(SHRI NITIN PHADKE, LEARNED COUNSEL FOR THE APPELLANTS)

AND
SANTOSH S/O HARI DHIWAR, AGED ABOUT 46 YEARS, TARLA DISTT.
JALGAON (M.H.) (MAHARASHTRA)
                                                                            .....RESPONDENT
(NONE FOR THE RESPONDENT)
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        This appeal coming on for admission this day, the court passed the
following:

                                      JUDGMENT

Present second appeal has been filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908 against the

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judgment and decree dated 17.03.2015 passed by Additional District Judge, Sendhwa, District-Barwani in Civil Appeal No.44-A/2013 arising out of the judgment and decree dated 25.10.2008 passed by Civil Judge, Class-I, Sendhwa, District-Barwani in Civil Suit No.45-A/2007 which was filed by the appellant/plaintiff for declaration of title and permanent injunction which have been declined by both the courts below.

2. Brief facts of the case are that suit was filed by the appellants on the averment that the suit house originally belonged to their predecessor Shri Abhiman who passed away on 19.02.2004. The appellants averred that respondent/defendant was the son of Smt Jankabai, who was sister of Late Abhiman. Initially the suit house was recorded in the Panchayat records in the name of Shri Dhudku, who was the real brother of Late Abhiman The appellants averred that Shri Dhudku was unmarried and that Shri Abhiman was his only legal heir and after the death of Dhudku, the title of the house had devolved upon Shri Abhiman.

3. Appellants pleaded that father of respondent defendant had a very weak financial condition and therefore he had migrated from his native place Jalgaon to village Balwadi and as he had no place to live at Balwadi, his father had permitted defendants' father to reside in the suit house with his family. Thus, respondent's father resided in the suit house with the permission of his father and after the death of defendants' father the defendant continued to be in possession of the suit house. It was stated that respondent started raising disputes with appellants whereupon the appellants requested the respondent to vacate the suit house and sent a notice for possession but they denied it then they filed the present suit.

4. Respondents filed their written statement and denied all averments pleaded in the plaint.

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5. Trial court framed issues and recorded evidence then after passed the judgment and decree dated 25.10.2008 whereby the suit filed by the appellant was dismissed. The aforesaid judgment and decree passed by the trial court was assailed in appeal by the appellant before first appellate court and first appellate court affirmed the judgment and decree passed by trial court on 17.03.2015 and dismissed the appeal filed by the the appellant.

6. Being aggrieved by the judgment and decree passed by both the courts below appellant urged that the judgment and decree passed by both the courts below are illegal and not based on proper appreciation of evidence. Both the courts below have failed to consider oral and documentary evidence produced by the appellant and both the courts have committed error in dismissing the suit filed by the appellant. The findings of both the courts are perverse and against the evidence available on record, hence, it is submitted that appeal deserves to be admitted on the substantial questions of law proposed by the appellant.

7. Heard the learned counsel for the appellant and perused the entire record of both the courts with due care.

8. From perusal of the record of the trial court, it appears that the appellant/plaintiff filed civil suit for recovery of possession on the basis of ownership so burden lies upon appellant/plaintiff to prove his case that he is owner of the disputed house. But on perusal of the record of the trial court and evidence adduced by both the parties before trial court, it is found that plaintiff/appellant is unable to adduce any substantial evidence in regard to title of the suit house so, trial court as well as first appellate court on the basis of the aforesaid evidence gave concurrent finding that appellant has failed to prove his title over suit house so he has no right to

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take possession of the suit house.

9. In light of the aforesaid discussion, this Court is of the considered opinion that the impugned judgments 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 are concurrent finding of facts and appellant/plaintiff has failed to show as to how the finding of facts recorded by the courts below are illegal, perverse and based on no evidence. Thus, no substantial question of law arises in this appeal, hence, the present second appeal is dismissed at admission stage itself.

(HIRDESH) JUDGE N.R.