Madhya Pradesh High Court
Lakhanlal Soni vs Mithlesh Kumar Swami on 8 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 8 th OF MAY, 2024
SECOND APPEAL No. 1271 of 2020
BETWEEN:-
LAKHANLAL SONI S/O LATE NARMADA PRASAD SONI
SINGH, AGED ABOUT 55 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILL. BANDAKPUR, TEH. AND
DIST. DAMOH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI B.K. SHUKLA - ADVOCATE)
AND
1. MITHLESH KUMAR SWAMI S/O LATE RAMRATAN
SWAMI, AGED ABOUT 45 YEARS, R/O NEAR GOVT.
MIDDLE SCHOOL BANDAKPUR, TEH. AND DIST.
DAMOH AT PRESENT INFRONT OF PRABHUDAS
KISHOREDAS BIDI COMPANY, VILL. BAMHORI
BANDAKPUR, TEH. AND DIST. DAMOH (MADHYA
PRADESH)
2. EXECUTIVE OFFICER, PUBLIC WORKS
D EPARTM EN T, DAMOH, DISTRICT DAMOH
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR DAMOH,
DISTRICT DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.2 & 3/STATE BY MS. PRITI SINGH -PANEL LAWYER)
Reserved on : 01.05.2024
Pronounced on : 08.05.2024
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
The judgment and decree passed by Seventh Additional District Judge,
Damoh, on 9.7.2020 in First Civil Appeal No.RCA 24/2020 are challenged in
this second appeal. By this judgment and decree, the first appellate court
dismissed the appeal and affirmed the judgment and decree passed in Civil Suit
No.RCSA 45-A/2016 on 27.6.2019 by Second Civil Judge, Class I, Damoh.
2. The appellant (hereinafter referred to as "plaintiff") filed a civil suit for
seeking the relief of declaration of title and permanent as well as mandatory
injunction. His claim was that he purchased the suit property and was its owner
but respondent no.1 (hereinafter referred to as "defendant no.1") was
attempting to encroach on a part of this land, marked as "Ka-Kha". It was also
claimed that an illegal construction was made by defendant no.1 over the
Government land regarding which mandatory injunction was prayed for removal
of this illegal construction. The learned trial court partially allowed the suit by
holding that the suit property of Khasra No.980, area 0.060 hectare, was of the
ownership and possession of plaintiff but it also observed that there was no
encroachment of defendant no.1 over this suit property and the illegal
construction raised by defendant no.1 over the Government land cannot be
directed to be removed as no notice under Section 80 CPC was given by
plaintiff to the respondents no.2 and 3 (hereinafter referred to as "defendants
no.2 and 3") before the institution of civil suit. These findings were affirmed by
the learned first appellate court.
3. The plaintiff in this second appeal has taken the ground that the finding
given by trial court and confirmed by the first appellate court on issue no.3 is
perverse and deserves to be set aside. It has been claimed that the non-
compliance of provision of Section 80 CPC was never argued by defendants
no.2 and 3 and without there being any objection raised regarding this non-
compliance, the courts below dismissed the suit partly. The encroachment of
defendant no.1 was on the Government land (road) and this encroachment was
possible only with the connivance of defendants no.1 and 2, yet the courts
below failed to consider the dispute in correct perspective and disallowed the
relief to the plaintiff. It is, therefore, prayed that this second appeal be admitted
upon proposed substantial questions of law.
4. Arguments of learned counsel for plaintiff have been heard and the records
of the courts below have been perused.
5. The pleadings of this case reveal that here the defendant no.2 was not a
formal party in the suit as specific pleadings were made against it by claiming
that defendant no.2 failed to take appropriate action against the encroachment
made by defendant no.1 over the Government passage. For this reason, a
prayer for mandatory injunction was made in the plaint. In the light of these
facts, the citation of Sant Prasad v. Kausla Nand Sinha and others 2018
(2) M.P.L.J. 34 relied upon by the plaintiff cannot be applied here for the
simple reason that the issue of non-compliance of Section 80 CPC was taken
note of only when the matter was before the High Court, hence the Apex Court
directed the appellant to file appropriate application before the High Court for
considering his case on merits but, in the present case, the relief of mandatory
injunction regarding demolishing the illegal construction was being prayed for
by the plaintiff and for the pleadings that no substantial action was taken by
defendant no.2 for removal of this encroachment, the provision of Section 80
CPC was attracted in the case which required a prior notice to the Government
agency to act before the suit was instituted. The learned first appellate court has
very aptly referred to the decision of Apex Court given in the case of State of
M.P. v. Indrapal Singh (C.R. No.564/76, decided on 12.9.1978) in which it
has been held that in a suit for injunction, notice under Section 80 CPC is
mandatory and no exception can be made in such a suit. Further, the decision
of Apex Court in Suraj and others v. Sub-Divisional Officer, Rehli, and
others 1995 AIR 872 also upholds this legal proposition. Waiver of a
mandatory provision will not cure the defect as the waiver would be at the stage
of trial while the suit itself is not maintainable from inception in the absence of
notice of Section 80 CPC. Further, in the present case defendants no.2 and 3
were ex-parte, hence it cannot be assumed that they waived their rights
protected under Section 80 CPC.
6. The courts below gave finding on issue no.3 against the plaintiff for the
simple reason that the Commissioner report filed by plaintiff himself, marked as
Ex.P-6, disclosed that there was no encroachment made in the property of
Survey No.980 owned by plaintiff, therefore the relief of permanent injunction
regarding the property of Survey No.980 was disallowed.
7. The plaintiff also requested for mandatory injunction for demolishing the
illegal construction of defendant no.1 on the Government land. The suit-map
suggests that this encroached property is adjacent towards the eastern side of
the property of Survey No.980 owned by the plaintiff. Commissioner report,
marked as Ex.P-6, though claims that the houses of defendant no.1 and other
persons are constructed on the property of Survey No.654 which is recorded
as Raasta in the land of Madhya Pradesh State Government but this report does
not disclose the location of property of Survey No.654 as compared to the
property of Survey No.980 owned by plaintiff. Ex.P-3 is the Naksha printout
filed by plaintiff. It shows the location of Survey No.980 but it too does not
disclose that the property of Survey No.654 was lying adjacent to this property
in its eastern side.
8. The plaintiff does not have a right to get the house of defendant no.1
demolished if that is not situated in the land owned by plaintiff or if the said
construction does not infringe any easementary right of plaintiff. Here, the
plaintiff has failed to prove any encroachment in the land owned by him.
Further, he has also failed in proving any of his easementary right being violated
by the defendant no.1, therefore the courts below were justified in dismissing
his claim for the relief of mandatory injunction against the constructed house of
defendant no.1 .
9. In the light of aforesaid discussion, this second appeal is dismissed in
limine for want of any substantial question of law involved herein. Accordingly,
this second appeal is disposed of.
10. Let a copy of this order along with its records be sent to the trial court for
information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.05.09 10:40:14 +05'30'
