Madhya Pradesh High Court
Dattatraya Shikshan Samiti Vidisha vs Smt.Sushma Berthere on 13 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:17665
1 SA-455-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 13th OF AUGUST, 2025
SECOND APPEAL No. 455 of 2011
DATTATRAYA SHIKSHAN SAMITI VIDISHA
Versus
SMT. SUSHMA BERTHERE AND OTHERS
Appearance:
Mr. Bhagwan Raj Pandey - Advocate for appellant.
Mr. Sakent Chhiroliya - Proxy Counsel on behalf of Mr. R.P. Rathi -
Advocate for respondents.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 20.04.2011 passed by Second Additional
District Judge, Vidisha in Regular Civil Appeal No. 02A/2011, as well as
judgment and decree dated 27.08.2010 passed by First Civil Judge, Class II,
Vidisha in Civil Suit No. 2A/2010.
2. Since the controversy revolves in a very narrow compass, therefore,
elaborate discussion of facts is not required.
3. Plaintiff/appellant filed a suit for declaration and permanent
injunction that plaintiff is a tenant and defendants should not dispossess it
without following due procedure of law. During the pendency of suit, an
application for amendment was filed, thereby claiming that on 04.07.1998, a
temporary injunction order was passed. In spite of that, plaintiff has been
NEUTRAL CITATION NO. 2025:MPHC-GWL:17665
2 SA-455-2011
dispossessed subsequent thereto, and thus, it was pleaded that possession of
plaintiff may be restored back.
4. Trial Court held that neither plaintiff has proved that it was the
tenant nor paid the court-fee for decree for possession, and accordingly, suit
was dismissed, including the prayer for possession.
5. Being aggrieved by judgment and decree passed by the Trial Court,
appellant/plaintiff preferred an appeal, which too has been dismissed by the
Appellate Court.
6. It is submitted by counsel for appellant that in fact, appellant was
the tenant, and therefore, Courts below have committed a material illegality
by holding that plaintiff had failed to prove that it was the tenant in the suit
premises. However, counsel for appellant could not point out that in absence
of the court-fee, how the decree for possession could have been granted.
7. Heard learned counsel for appellant.
8. Whether appellant was a tenant or the encroacher will not make
much difference because appellant had never claimed any title over the
property in dispute. It is well-established principle of law that even an
encroacher cannot be dispossessed without following due procedure of law.
9. Under these circumstances, the moot question for consideration is as
to whether appellant could have been granted a decree for possession without
payment of court-fee or not?
10. The only contention of counsel for appellant is that since appellant
was dispossessed in spite of temporary injunction order, therefore, decree for
possession should have been granted. However, counsel for appellant did not
NEUTRAL CITATION NO. 2025:MPHC-GWL:17665
3 SA-455-2011
give any reply to the question as to whether rejection of prayer for decree for
possession on the ground of non-payment of court-fee is erroneous or not.
Furthermore, plaintiff has also not pleaded that on which date, plaintiff was
dispossessed.
11. Be that as it may.
12. As counsel for appellant has not challenged the findings recorded
by the Trial Court by which prayer for possession was refused on the ground
of non-payment of court-fee, nothing survives in this second appeal.
14. Accordingly, as no substantial question of law arises in the present
appeal, judgment and decree dated 20.04.2011 passed by Second Additional
District Judge, Vidisha in Civil Appeal No. 2A/2011, as well as judgment
and decree dated 27.08.2010 passed by Civil Judge, Class II, Vidisha in Civil
Suit No. 2A/2010, are hereby affirmed.
15. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
