Vijay Goutam vs Ram Kripal Mahara
2024 Latest Caselaw 13341 MP

Madhya Pradesh High Court

Vijay Goutam vs Ram Kripal Mahara on 9 May, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                  ON THE 9 th OF MAY, 2024
                                               MISC. APPEAL No. 108 of 2019

                          BETWEEN:-
                          VIJAY GOUTAM S/O LATE SURENDRA PRASAD
                          GOUTAM, AGED ABOUT 51 YEARS, OCCUPATION:
                          BUSINESS NEAR SHANKAR MANDIR REGIONAL
                          COLONY DHANPURI WARD NO. 1 P.S. BUDHAR TEHSIL
                          SOHAGPUR, DISTT. SHAHDOL (MADHYA PRADESH)

                                                                                        .....PETITIONER
                          (BY SHRI J.L MISHRA - ADVOCATE )

                          AND
                          1.    RAM KRIPAL MAHARA S/O LATE CHARKU
                                MAHARA, AGED ABOUT 60 YEARS, WARD NO. 1
                                DHANPURI P.S. BUDHAR TAHSIL SOHAGPUR,
                                DISTT. SHAHDOL (MADHYA PRADESH)

                          2.    STATE OF MADHYA PRADESH THR. COLLECTOR
                                DISTT-SHAHDOL (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                          (SHRI SAKET MALIK - ADVOCATE FOR RESPONDENT 1 AND MS. MAMTA
                          MISHRA - PANEL LAWYER FOR RESPONDENT 2/STATE )

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                             ORDER

This misc. appeal has been preferred by the appellant/defendant 1 challenging the judgment of remand dtd.30.07.2018 passed by Additional District Judge, Budhar, District Shahdol in civil appeal No.40-A/2014 reversing the judgment and decree 30.09.2011 passed by Civil Judge Class-I, Budhar, Distt. Shahdol in civil suit No. 20-A/2011 whereby trial court dismissed

respondent 1/plaintiff's suit filed for declaration of title and permanent injunction in respect of land Khasra No.428/2 area 55.5 dismal, situated in Dhanpuri Ward No.1, Tahsil Suhagpur, Distt. Shahdol.

2 . Learned counsel for the appellant/defendant 1 submits that the defendant 1, vide registered sale deed dtd. 18.03.2002 (Ex. P/16) purchased disputed land and received possession after payment of consideration amount to the plaintiff and the suit in question has been filed on false set of facts disputing the sale deed, which is barred by limitation. He further submits that rest of the area of land Survey No.428/2 has already been sold by the plaintiff to other person. He submits that first appellate court has mere upon consideration

of the applications under Order 6 Rule 17 and order 41 Rule 27 CPC (IA Nos.1 & 2) erred in setting aside the judgment and decree of trial court and in remanding the matter for decision of civil suit afresh. Learned counsel submits that the factum of consent recorded in para 22 by first appellate court is incorrect and no such consent was given by the counsel, although review petition filed in that regard, has wrongly been dismissed by appellate court. He further submits that first appellate court has committed illegality in remanding the matter as a whole. With these submissions he prays for admitting the misc. appeal.

3 . Learned counsel for respondent 1/plaintiff supports the impugned judgment of remand and prays for dismissal of the misc. appeal.

4. Heard learned counsel for the parties and perused the record 5 . Originally the suit was filed for declaration of title and permanent injunction, which was dismissed by trial court. During pendency of appeal the plaintiff moved two applications under Order 6 Rule 17 CPC and Order 41 Rule 27 CPC, with the contention that during pendency of civil appeal the

defendant 1 has dispossessed the plaintiff from the suit property and with the prayer of allowing the application for amendment, he prayed for restoration of possession. Along with the application under Order 41 Rule 27 CPC the plaintiff also prayed for taking some photographs and receipt of photographer on record, regarding raising of construction over the land.

6 . Taking into consideration the aforesaid aspect of the matter and necessity of recording evidence by the parties on the plea of dispossession of plaintiff and especially taking into consideration the consent given by defendant 1 for remanding the matter, as recorded by first appellate court in para 22 of its judgment, first appellate court has remanded the matter to trial court for decision of civil suit afresh.

7. In view of the aforesaid factual scenario and discussion, especially in view of the application under Order 6 Rule 17 CPC filed by the plaintiff regarding his dispossession from the suit property, this Court does not find any illegality in passing the impugned judgment of remand passed by first appellate court.

8 . Resultantly, misc. appeal fails and is hereby dismissed at admission stage itself.

9. Misc. application(s), pending if any, shall stand closed.

(DWARKA DHISH BANSAL) JUDGE ss