Madhya Pradesh High Court
Smt. Parul Khandelwal vs Praveen Sharma on 15 May, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 15 th OF MAY, 2024
SECOND APPEAL No. 50 of 2024
BETWEEN:-
1. SMT. PARUL KHANDELWAL W/O SHRI SHYAM
KHANDELWAL, AGED ABOUT 38 YEARS,
OCCUPATION: HOUSEWIFE BAAWAN PAIYGA NAI
SADAK LASHKAR GWALIOR (MADHYA PRADESH)
2. SHYAM KHANDELWAL S/O LATE SHRI G.M.
GUPTA, AGED ABOUT 40 YEARS, OCCUPATION
CONTRACTOR,
BOTH R/O BAAWAN PAIYGA, NAI SADAK,
LASHKAR, GWALIOR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI V.K.BHARDWAJ - SENIOR ADVOCATE WITH SHRI ROHIT
BATHAM - ADVOCATE)
AND
1. PRAVEEN SHARMA S/O SHRI PREM NARAYAN
SHARMA, AGED ABOUT 38 YEARS, OCCUPATION:
SHOPKEEPER
2. PRASHANT SHARMA S/O LATE SHRI PREM
NARAYAN SHARMA, AGED ABOUT 36 YEARS,
OCCUPATION PRIVATE SERVICE
RESPONDENTS NO. 1 AND 2 R/O SIDDHESHWAR
HANUMAN MANDIR, BAAWAN PAIYGA, NAI
SADAK, LASHKAR, GWALIOR (MADHYA
PRADESH)
3. SMT VIMLA DEVI SAXENA W/O LATE SHRI
UPDESH NARAYAN SAXENA, AGED ABOUT 82
YEARS, OCCUPATION HOUSEWIFE, R/O NEAR ECS
BAGLESS SCHOOL, C.P. COLONY MORAR (DEAD)
GWALIOR (MADHYA PRADESH) (DEAD)
4. D N SAXENA S/O LATE SHRI UPDESH NARAYAN
SAXENA, AGED ABOUT 58 YEARS, R/O BALWANT
NAGAR, GWALIOR (MADHYA PRADESH)
2
5. SANJEEV SAXENA S/O SHRI UPDESH NARAYAN
SAXENA, AGED ABOUT 42 YEARS, R/O NEAR ECS
BAGLESS SCHOOL, C.P. COLONY MORAR,
GWALIOR (MADHYA PRADESH)
6. REKHA SAXENA D/O LATE SHRI UPDESH
NARAYAN, AGED ABOUT 46 YEARS, R/O NEAR ECS
BAGLESS SCHOOL, C.P. COLONY MORAR,
GWALIOR(MADHYA PRADESH)
7. PRADEEP SAXENA S/O LATE SHRI SUMER
NARAYAN SAXENA, AGED ABOUT 57 YEARS, R/O
BAAWAN PAIYGA, NAI SADAK, LASHKAR,
GWALIOR (MADHYA PRADESH)(DEAD)
8. BHUSHAN SAXENA S/O SHRI RAGHUVEER
NARAYAN SAXENA, AGED ABOUT 54 YEARS, R/O
BAAWAN PAIYGA, NAI SADAK, LASHKAR,
GWALIOR (MADHYA PRADESH)
9. ALOK SAXENA S/O LATE SHRI RAGHUVEER
NARAYAN SAXENA, AGED ABOUT 51 YEARS, R/O
BAAWAN PAIYGA, NAI SADAK, LASHKAR,
GWALIOR (MADHYA PRADESH) (DEAD)
10. AJIT SAXENA S/O LATE SHRI RAGHUVEER
NARAYAN SAXENA, AGED ABOUT 46 YEARS, R/O
BAAWAN PAIYGA, NAI SADAK, LASHKAR,
GWALIOR (MADHYA PRADESH)
11. BHARAT SINGH BAGHEL S/O SHRI BADRI
PRASAD BAGHEL, AGED ABOUT 39 YEARS, R/O
DAULATGANJ, IN FRONT OF BADA HANUMAN
MANDIR, LASHKAR, GWALIOR (MADHYA
PRADESH)
12. MUNICIPAL CORPORATION GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(NONE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
T h i s appeal under Section 100 of CPC is directed by
appellants/defendants No. 1 and 2 against the concurring judgment and decree
dated 2/11/2023 passed by Tenth District Judge, Gwalior in Civil Appeal
No.215/2022 confirming the judgment and decree dated 28/10/2022 passed by
14th Civil Judge, Senior Division, Gwalior in Civil Suit No.133-A/2013. The
Suit filed by respondents No. 1 and 2/plaintiffs for declaration and permanent
injunction in respect of suit property has been decreed.
2 . Facts necessary for disposal of this appeal are to the effect that
respondents No. 1 and 2/plaintiffs filed a suit declaration and permanent
injunction in respect of suit property alleging that their property is situated in
Ward No. 35 which they have purchased from Govind Prakash Saxena through
registered sale deed dated 16/5/2006. In para 2 of plaint four corners of the
property has been described. It was the case of plaintiffs that in front of
plaintiffs' house there is a way ad measuring 22 x 18 ft. It was further alleged
that in power of attorney dated 12/6/2009 executed by defendants No. 3 to 10
in favour of defendant No. 11 authorizing him to sale disputed property, name
of father of plaintiffs is shown as owner of the property situated towards north
and there is also mention of aforesaid way/disputed property. The property
shown in power of attorney is of the ownership of plaintiffs. In the aforesaid
power of attorney the place shown as open space is also of the ownership of
plaintiffs and same is the disputed property which is used as a public way and if
any construction or use is changed it will obstruct use of property by plaintiffs/
public; however, defendants No. 1 and 2 are trying to make construction over
the disputed property; whereas, same is of the ownership of plaintiffs,
therefore, suit was filed.
3 Appellants/defendants No. 1 and 2 filed written statement denying the
plaint allegations. It is specifically pleaded that plaintiffs are not owner of the
disputed property due to cordial relationship earlier they do not opposed the
construction of windows made by plaintiffs towards the side of disputed
property and now for closing of the same, they are also going to file counter
claim.
4. Based on the aforesaid pleadings, trial Court framed as many as ten
issues and allowed parties to lead evidence. Trial Court upon detailed
examination of evidence on record, decreed the suit.
5. On appeal, the first appellate Court,while deciding the appeal again re-
appreciated the evidence brought before it. The first appellate court found that
disputed property is a public place and while dismissing the appeal held that
the trial Court did not err in passing the impugned judgment and decree, and
thus, after re appreciation of evidence, upheld the judgment of trial Court and
dismissed the appeal.
6 . After having perused the judgments of both the Courts below, this
Court is of the view that the entire gamut of matter is in the realm of facts. The
findings recorded by both the Courts below are pure findings of facts which in
the opinion of this Court do not warrant any interference under Section 100 of
CPC. No question of law, much less substantial question of law arises in this
appeal. Admission declined. Appeal is dismissed.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
JAI
JPS/-DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
PRAKASH
2.5.4.20=287738d30aabaeda9b10cecdf179ce
c865c7633f4cfb9e38ce14fcbb05b9522a,
postalCode=474001, st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8
SOLANKI 072A2D8C01433EBD48AE4F609F108CA8F8D
E6B522, cn=JAI PRAKASH SOLANKI
Date: 2024.05.16 11:23:55 +05'30'
