Madhya Pradesh High Court
Vinod Kumar Dubey vs Dwarka Prasad Patel on 30 January, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 30th OF JANUARY, 2025
SECOND APPEAL No. 1427 of 2024
VINOD KUMAR DUBEY AND OTHERS
Versus
DWARKA PRASAD PATEL
Appearance:
Shri Atul Anand Awasthi - Senior Advocate with Shri Rupesh Singh Thakur -
Advocate for the appellants.
Shri Ratnesh Patel - Advocate for the respondent.
ORDER
The appeal was heard and reserved for orders on admission on
25/11/2024.
2 . This second appeal under Section 100 of the Code of Civil Procedure,
1908 has been filed by the appellants/defendants being aggrieved by the
judgment and decree dated 23/04/2024 passed by Additional District Judge
Mauganj to the Court of First District Judge, Mauganj District Rewa in
Regular Civil Appeal No.30/2020 (Vinod Kumar Dubey & another vs.
Dwarka Prasad) arising out of the judgment and decree dated 17/03/2020
passed by the Civil Judge Class-II, Mauganj District Rewa in Civil Suit
No.239-A/2018 (Dwarka Prasad vs. Vinod Kumar Dubey & another)
whereby the suit of the respondents/plaintiffs has been allowed.
3. During the course of argument, learned counsel for the
appellants/defendants submitted that appellants/defendants have lost in both
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the Courts.
4. Learned Civil Judge Class-II Mauganj District Rewa vide judgment and
decree dated 17/03/2020 in Civil Suit No.239 of 2018 for the suit property
situated in village Paliya, Triveni Singh General bearing No.594 PC Sarai
Sengar No.1 Tehsil Mauganj District Rewa as mentioned in Para-1 of the
impugned judgment regarding declaration of title, permanent injunction and
for declaration that order of Tehsildar dated 20/07/2018 is void and his
possession may be restored has decreed the suit of the plaintiffs.
5. On an appeal filed by the defendants/appellants, learned First Appellate
Court in RCA No.30/2020 vide judgment and decree dated 23/04/2024
dismissed the appeal filed by the Vinod Kumar Dubey and another
(appellants herein).
6. At the time of arguments, it was argued by learned counsel for the
appellants/defendants that possession of the appellants/defendants over the
suit property was for the last 25 years but this fact was not considered by
both the courts.
7. Considered the arguments of learned counsel for the appellants and
perused the record.
8. It is seen from the judgment of the trial Court that Vinod Kumar Dubey
and Manoj Kumar Dubey are the real brother and son of Gomti Prasad
Dubey, although in the judgment of First Appellate Court, the name of father
Manoj Kumar Dubey has been mentioned as Mogti Prasad Dubey, which
seems typographical error. Monoj Kumar Dubey in Para-2 of the affidavit
filed under Order 18 Rule 4 of the CPC stated that Dwarka Prasad had given
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the suit property to him about 30 years ago for forever and they had
constructed a house and an hotel upon it.
9. On perusal of the record, it is also seen that there was no counter claim
by the defendants. There is no documents to show the title in favour of the
appellants/defendants. If they have possession for some years which if taking
the contention of the appellants/defendants that they were given the suit
property for Hotel working as correct it would be permissible possession and
not adverse possession. It would not dis-entitlement plaintiffs from getting a
decree. Similarly, in some revenue entries which is for fiscal purpose and
electric bills etc. was may be proved in favour of the appellants/defendants
whereas plaintiff has filed his sale deed (Ex.P/25) which prima facie shows
title of the plaintiffs over the suit property.
10. On the basis of the records of both the Courts, there is no sufficient
ground to admit this appeal. All facts have been considered and no ground or
substantial question of law exists on which this second appeal can be
admitted.
11. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or
contrary to material on record. [See: Narayan Rajendran and Anr. v.
Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul
Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Another, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC
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158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7
SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4
SCC 264]. The concurrent findings of fact recorded by the courts below are
based on meticulous appreciation of evidence on record which by no stretch
of imagination can be said either to be perverse or based on no evidence.
12. In the result, this Court is of the considered opinion that the trial court
and first appellate Court on meticulous appreciation of evidence available on
record gave findings which cannot be interfered. No substantial question of
law arise in this appeal. Hence, it is dismissed at admission stage itself
(AVANINDRA KUMAR SINGH)
JUDGE
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