Nandibai vs Mangilal Deceased Through Lrs. Rambai
2024 Latest Caselaw 12705 MP

Madhya Pradesh High Court

Nandibai vs Mangilal Deceased Through Lrs. Rambai on 6 May, 2024

Author: Hirdesh

Bench: Hirdesh

                                                   1

                         IN THE HIGH COURT OF MADHYA PRADESH
                                           AT I N D O R E
                                               BEFORE
                                  HON'BLE SHRI JUSTICE HIRDESH

                                       ON THE 6th OF MAY, 2024

                                    SECOND APPEAL No. 2308 of 2023

                         BETWEEN:-
                         NANDIBAI W/O GANPATSINGH, AGED ABOUT 70 YEARS, GRAM
                         UPADI TEHSIL TONK KHURD, DISTRICT DEWAS (MADHYA
                         PRADESH)
                                                       .....APPELLANT/DEFENDANT
                         (MS. SUMANLATA TAMRAKAR, ADVOCATE FOR APPELLANT)

                         AND
                            MANGILAL DECEASED THROUGH LRS. RAMBAI W/O LATE
                         1. MANGILAL, AGED ABOUT 68 YEARS, GRAM BESRAPUR
                            TEHSIL AND DISTRICT SHAJAPUR (MADHYA PRADESH)
                            MANGILAL DECEASED THROUGH LRS. MAMTABAI W/O
                            MANGILAL, AGED ABOUT 41 YEARS, 51 KANCHAN VIHAR TIL
                         2.
                            GANGA CHOURAHA UJJAIN JILA UJJAIN (MADHYA
                            PRADESH)
                            MANGILAL DECEASED THROUGH LRS.MAHENDRA S/O
                         3. MANGILAL, AGED ABOUT 43 YEARS, 252 GANDHI NAGAR
                            GALI NO. 3 AGAR ROAD UJJAIN (MADHYA PRADESH)
                            MANGILAL DECEASED THROUGH LRS.MAMTABAI W/O
                            MANGILAL, AGED ABOUT 41 YEARS, 51 KANCHAN VIHAR TIL
                         4.
                            GANGA CHOURAHA UJJAIN JILA UJJAIN (MADHYA
                            PRADESH)
                            RAMESH S/O MADANLAL, AGED ABOUT 42 YEARS, GRAM
                         5. BESARAPURA TEHSIL AND DISTRICT SHAJAPUR (MADHYA
                            PRADESH)
                            RAMESH S/O PRATAP, AGED ABOUT 56 YEARS, GRAM
                         6. BESARAPURA TEHSIL AND DISTRICT SHAJAPUR (MADHYA
                            PRADESH)
                            INDER S/O ATMARAM, AGED ABOUT 32 YEARS, GRAM
                         7. BESARAPURA TEHSIL AND DISTRICT SHAJAPUR (MADHYA
                            PRADESH)


Signature Not Verified
Signed by: ARUN NAIR
Signing time: 09-05-
2024 17:29:35
                                                          2

                            PAVAN S/O ATMARAM, AGED ABOUT 30 YEARS, GRAM
                         8. BESARAPURA TEHSIL AND DISTRICT SHAJAPUR (MADHYA
                            PRADESH)
                            LAAKHAN S/O DARIYAVSINGH, AGED ABOUT 46 YEARS,
                         9. GRAM BESARAPURA TEHSIL AND DISTRICT SHAJAPUR
                            (MADHYA PRADESH)
                             DILIP S/O DARIYAVSINGH, AGED ABOUT 44 YEARS, GRAM
                         10. BESARAPURA TEHSIL AND DISTRICT SHAJAPUR (MADHYA
                             PRADESH)
                             BAHADURSINGH S/O DARIYAV, AGED ABOUT 41 YEARS,
                         11. GRAM BESARAPURA TEHSIL AND DISTRICT SHAJAPUR
                             (MADHYA PRADESH)
                             GEETABAI W/O DARIYAVSINGH, AGED ABOUT 71 YEARS,
                         12. GRAM BESARAPURA TEHSIL AND DISTRICT SHAJAPUR
                             (MADHYA PRADESH)
                              MADHYA PRADESH SHASAN DWARA COLLECTOR
                         13.
                              SHAJAPUR (MADHYA PRADESH)
                                                        .....RESPONDENTS/PLAINTIFFS
                         (MR. MAYANK MISHRA, ADVOCATE FOR RESPONDENTS/STATE)
                               This appeal coming on for orders this day, the court passed
                         the following:-

                                                    ORDER

Appellant/defendant has preferred this second appeal under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 28.06.2023 passed by Principal District Judge, District Shajapur (MP) in Regular Civil Appeal No.22/2021 arising out of the judgment and decree dated 23.03.2021 passed in Regular Civil Suit No.15-A/2021 by First Civil Judge, Class-I, Shajapur (MP).

(2) The brief facts of the case are that the respondent/plaintiff has filed the civil suit against the appellant/defendant for mandatory injunction in relation to agricultural land bearing survey Nos.151/1, 151/2 and 151/3 situated at Gram and Village

Besrapur, District Shajapur (MP) by stating that plaintiff is the owner of the suit land and the defendant is trying to make his way in the inner side of agricultural land due to which damage has been caused to crops in the said field and pleaded that when plaintiff refused to defendant not to use the said way then defendant used to quarrel with the plaintiff, as a result of which, FIR has been lodged by the plaintiff against him in Police Station Berchha, District Shajapur. Hence the plaintiff has filed the present suit against the defendant for mandatory injunction and for restraining them not to use their way.

(3) The defendant had filed the written statement before the trial court and has denied all the averments made in the plaint.

(4) The trial court has framed the issues on the basis of pleadings of both the parties and after taking the evidence has decreed the suit filed by the plaintiff.

(5) Being aggrieved from the aforesaid judgment and decree, the appellant/defendant has filed the first appeal before the first appellate court and the first appellate has dismissed the appeal filed by the defendant and has affirmed the judgment and decree passed by the trial court. He further submits that both the courts below have committed grave error in dismissing the suit and appeal filed by the appellant/defendant. Thus, on the basis of above grounds, substantial question of law arises for consideration in second appeal and prays that appeal be admitted for final hearing.

(6) I have heard counsel for the appellant/defendant and have perused the records of the case with due care.

(7) From the perusal of records of both the courts below, it is apparent that it is a case of concurrent findings of facts i.e. both the Courts below have dismissed the suit/appeal filed by the appellant/defendant.

(8) On going through the trial court record, it appears that the respondents/plaintiffs have filed the suit for mandatory injunction against the appellant/defendant on the ground that he filed the application before the Tehsildar at Maxi under Section 131 of Madhya Pradesh Land Revenue Code, 1959 and Tehsildar has given interim relief to defendant in respect of disputed land as the appellant has no alternative remedy to reach to the said land.

(9) It also appears on perusal of the record that order of Tehsildar was challenged before the SDO and the SDO has set- aside the order of Tehsildar which was later on confirmed by the Board of Revenue. It is also undisputed that the agricultural land was in the ownership of plaintiff and the defendant is trying to encroach upon the said land. Thus, the trial court as well as first appellate court on the basis of oral and documentary evidence has given the concurrent findings that defendant is trying to encroach upon the land of plaintiff and decreed the suit of plaintiff.

(10) Thus, in view of aforesaid discussion, this Court is of the

considered opinion that the impugned judgments passed by trial court and first appellate court are well reasoned and based upon the due appreciation of oral as well as documentary evidence available on record. The findings recorded by trial court and first appellate court are concurrent findings of facts. The appellant/defendant has failed to show that how the findings of facts recorded by trial court and first appellate court are illegal, perverse and based on no evidence. Thus, no substantial question of law arises for consideration in the present second appeal.

(11) Accordingly, the present second appeal sans merit and is hereby dismissed.

(12) Certified copy, as per Rules.

                                                                                    (HIRDESH)
                         Arun/-                                                       JUDGE