Madhya Pradesh High Court
Garib Das vs Santosh Gurjar on 18 June, 2025
Author: Sanjay Dwivedi
Bench: Dwarka Dhish Bansal, Sanjay Dwivedi
NEUTRAL CITATION NO. 2025:MPHC-JBP:26167
1 SA-71-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 18th OF JUNE, 2025
SECOND APPEAL No. 71 of 2015
GARIB DAS
Versus
SANTOSH GURJAR AND OTHERS
Appearance:
Shri Ayush Choubey, Advocate for appellant.
Shri L.N. Sakle, Advocate for respondent 1.
JUDGMENT
This second appeal has been preferred by the appellant/defendant
challenging the judgment and decree dtd. 17.10.2014 passed by Additional
Judge to the Court of 1st Additional District Judge, Harda in Civil Appeal
No.41A/2011 & 42A/2011 affirming the judgment and decree dtd.
06.07.2010 passed by Additional Judge to the Court of Civil Judge Class-II,
Harda in Civil Suit No. 48A/2010 whereby Courts below have concurrently
dismissed the plaintiff's suit for declaration of title and permanent injunction
as well as counter claim of the appellant/defendant 1 filed for declaration of
title and mesne profits.
2. In short the facts are that the respondent 1/plaintiff instituted a civil
suit for declaration of title and permanent injunction in respect of land
Khasra No.149/09 area 1.339 hectare and Khasra No. 149/10 area 1.493
hectare, total area 2.832 hectare, situated in Village Rupiparetiya claiming
himself to be in possession for more than 20 years in the knowledge of
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defendant denying title of the defendant. Accordingly, claimed title on the
basis of adverse possession and decree of permanent injunction.
3. The appellant/defendant 1 appeared and filed written statement
denying the plaint averments and claimed himself to be in possession of the
land, however without taking plea of dispossession, prayed for grant of
decree of mesne profits @ Rs. 25,000/- per annum.
4. On the basis of pleadings of the parties trial Court framed issues and
recorded evidence of the parties and upon due consideration of the same,
dismissed the suit filed by the plaintiff as well as counter claim of the
defendant 1 vide judgment and decree dtd. 06.07.2010.
5. Against the aforesaid judgment and decree passed by trial Court
both the parties preferred regular civil appeals, which have also been
dismissed by the impugned judgment and decree dtd. 17.10.2014.
6. Against the aforesaid judgment and decree passed by Courts below,
instant second appeal was preferred by the appellant/defendant 1, which was
admitted for final hearing on 09.05.2016 on the following substantial
questions of law:
"(1) Whether, the courts below after having held and dismissing the
claim preferred by the plaintiff and holding that the plaintiff has no title on
the basis of adverse possession in that event did not fell in substantial error
of law in dismissing the counter claim of the defendant for possession and
mesne profit ?
(2) Whether, after holding that the defendant is the owner of the suit
property, the Courts below were justified in dismissing the counter claim of
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the defendant for possession and mesne profit ?"
7. Learned counsel for the appellant/defendant 1 submits that both the
Courts below have rightly dismissed the suit filed by respondent 1/plaintiff
and submits that although there is no plea regarding dispossession in the
written statement/counter claim, but as per oral instructions received by him
the defendant 1 was dispossessed from the suit land between the year 2006 to
May 2013, therefore, the defendant 1 is entitled for decree of mesne profits
and Courts below have committed illegality in dismissing the counter claim.
He also submits that after the year 2013 the appellant/defendant 1 is in
possession of suit property, therefore, there is no question of claiming relief
of possession. He submits that he is confining his appeal only in respect of
grant of mesne profits,.
8. Learned counsel for the respondent 1/plaintiff supports the
impugned judgment and decree passed by Courts below and submits that as
the appellant/defendant 1 is in possession of the suit property, therefore,
there is no question of granting decree on mesne profits and in absence of
any evidence adduced by the defendant 1 in that regard, Courts below have
rightly declined the prayer for grant of mesne profits.
9. Heard learned counsel for the parties and perused the record.
Substantial questions of law no. 1 & 2.
10. As has been submitted by learned counsel for the
appellant/defendant 1 and from perusal of the written statement/counter
claim it is clear that there is no plea in the counter claim that the defendant 1
was dispossessed by the plaintiff in between the year 2006 to May 2013 and
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in fact the defendant 1 has not filed counter claim for possession and without
seeking relief of possession, has claimed decree of mesne profits, which is
not permissible in the eyes of law. Further, the Courts below have denied the
claim of mesne profits because the defendant 1 has not led any evidence in
that regard.
11. Upon due consideration of the material available on record and in
view of the submissions made by the learned counsel for the
appellant/defendant 1 this Court does not find any illegality in the judgment
and decree passed by Courts below denying the relief of mesne profits.
12. Resultantly, both the substantial questions of law are decided
against the appellant/defendant 1.
13. As a result thereof, this second appeal fails and is hereby
dismissed.
14. Miscellaneous application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
