Madhya Pradesh High Court
Saman Prajapati vs Guljar Prajapati on 29 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30th OF MAY, 2024
SECOND APPEAL No. 2363 of 2018
BETWEEN:-
SARMAN PRAJAPATI, S/O SHRI JUGRU
PRAJAPATI, AGED ABOUT 70 YEARS,
OCCUPATION- AGRICULTURIST, R/O VILLAGE
KACHUR, TAHSIL HUZUR, DISTRICT REWA
(MADHYA PRADESH)
.....APPELLANT
(SHRI CHANDRAHAS DUBEY - ADVOCATE)
AND
1. GULJAR PRAJAPATI, S/O SHRI RAMDALAY
PRAJAPATI, AGED ABOUT 55 YEARS,
OCCUPATION - SERVICE, R/O VILLAGE
KACHUR, TAHSIL HUZUR DISTRICT REWA
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH,
THROUGH COLLECTOR, REWA DISTRICT
REWA (MADHYA PRADESH)
....RESPONDENTS
(SHRI PRADEEP DWIVEDI - PANEL LAWYER FOR RESPONDENT 2/
STATE)
This appeal coming on for hearing on this day, the Court passed
the following:
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S.A No.2363/2018
ORDER
This second appeal has been preferred by the appellant/plaintiff
challenging judgment and decree dated 12.09.2018 passed by 5th
Additional District Judge, Rewa, in Civil Appeal No.80A/2016 reversing
judgment and decree dated 15.04.2015 passed by 8 th Civil Judge Class-II,
Rewa in Civil Suit No.130-A/2015 whereby trial Court decreed the
appellant/plaintiff's suit filed for permanent injunction and restoration of
possession in respect of Survey No.401 area 0.04 acre situated in Village
Kachur, Tahsil Huzur, District Rewa, which upon filing appeal by
defendant 1, has been dismissed by first appellate Court.
2. Learned counsel for the appellant/plaintiff submits that land Survey
No.401 area 0.10 acre belonged to common ancestor Jugru, who in his
lifetime i.e. about 50 years ago gave an area 0.04 acre to plaintiff -
Sarman and kept remaining area 0.06 acre with him, which the defendant
1 is claiming under his ownership on the basis of a Will (Ex.D/1)
executed by wife of Jugru namely Rukki, who is mother of the plaintiff
and grandmother of defendant 1 - Guljar s/o Ramdayal. Learned counsel
submits that the defendant-1 Guljar has without having any right raised
construction over a piece of land out of an area 0.04 acre, as shown in the
plaint map by raising construction of pillar etc. He submits that taking
into consideration the entire material available on record, trial Court
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rightly decreed the suit, but first appellate Court has wrongly reversed the
judgment and decree of trial Court and dismissed the suit. Learned
counsel submits that as there is no dispute about ownership of plaintiff
over the land area 0.04 acre of Survey No.401, therefore, the suit ought to
have been decreed. In support of his submissions learned counsel for the
appellant/plaintiff placed reliance on the decision of this Court in the case
of Karim Khan vs. Mohammed Sharif Khan & Others 2016 SCC OnLine
MP 10418. With these submissions he prays for admission of the second
appeal.
3. Heard learned counsel for the appellant and perused the record.
4. Undisputedly the land Survey No.401 belonged to father of
plaintiff and grandfather of defendant 1, namely Jugru and there is no
dispute of title of the plaintiff over an area 0.04 acre. It is apparent from
the record that although there is no dispute about the area 0.04 acre under
ownership of plaintiff, but there is nothing on record to show that the land
of Survey No.401 was ever divided between the plaintiff and defendant 1.
Even in the plaint map, the plaintiff has not disclosed as to which area of
Survey No.401 came in his ownership. Hence, the land area 0.04 acre
under ownership of the plaintiff is not identifiable.
- 4 -
5. Further, first appellate Court has, vide paragraphs 22 to 28 taken
into consideration admissions of the plaintiff and his witnesses and held
that the plaintiff and defendant 1 both are in possession of property of
their ownership i.e. over 0.04 acre and 0.06 acre respectively and the
plaintiff has filed the suit without there being any cause of action.
6. First appellate Court has also held that despite there being clear
dispute of title about the disputed portion of land, the plaintiff has not
sought relief of declaration of title and the suit mere for permanent
injunction and restoration of possession is not maintainable.
7. Upon due consideration of the entire material available on record,
this Court does not find any illegality in the judgment and decree passed
by first appellate Court.
8. Resultantly, for want of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. However, no order as to costs.
10. Misc. application(s), pending if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
SN
