Back
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
Rajeev Kumar Shrivastava, J.
Angad – Appellant
Versus
Shantidevi and Ors. – Respondents
Second Appeal No. 1159 of 2019
Decided On : 25-02-2021
Land Dispute - Civil Procedure Code - Section 100 - 100. Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
Fact of the Case:
The plaintiffs filed a civil suit for declaration, permanent injunction, and restoration of possession as the defendants had taken possession during the pendency of the suit. The trial Court dismissed the civil suit, and the First Appellate Court affirmed the judgment and decree.
Finding of the Court:
Both the trial Court and the First Appellate Court gave a concurrent finding that as the construction is encroachment, no relief can be granted in favor of the appellant. The High Court dismissed the second appeal, stating that there is no substantial question of law involved in relation to the findings given by both the Courts below.
Issues: Validity of the plaintiffs' title and possession over the disputed land, encroachment, and ownership of the land by the appellant.
Ratio Decidendi: The Courts found that the construction made by the appellant was an encroachment, and the appellant was not shown to be the owner of the disputed land in the revenue record.
Final Decision: The second appeal was dismissed for being devoid of merits.
JUDGMENT :
Rajeev Kumar Shrivastava, J.
1. This second appeal is preferred under Section 100 of the CPC against the judgment and decree dated 21/02/2019 passed by Second Additional District Judge, Karera, Distt. Shivpuri (M.P.) in Regular Civil Appeal No. 96-A/2017, whereby the judgment and decree dated 20/02/2016 passed by Additional Civil Judge Class-I, Karera, Distt. Shivpuri (M.P.) in Civil Suit No. 34A/2013 has been affirmed.
2. Learned counsel for the appellant has submitted that the plaintiffs have filed civil suit for declaration, permanent injunction and restoration of possession as the defendants had taken possession during the pendency of suit by saying that they are the exclusive owner of land bearing survey No. 1270/2 admeasuring 0.05 hectare, 1271/2 admeasuring 0.10 hectare, 1272/2 admeasuring 0.25 hectare, 1276 admeasuring 0.21 hectare and 1332/2 admeasuring 0.04 hectare, total rakva - 5 and total area is 0.65 hectare, situated at Village Nizaampur, Tahsil Narwar, Distt. Shivpuri. Plaintiffs purchased the aforesaid land by its earlier owner Peer Khan, Sannu Khan and Jumma Khan by registered sale deed dated 01.02.1985 (Exhibit-P/9). Since then, they are in possession and their names have also been mutated in revenue record. Defendant No. 8 on the basis of aforesaid sale deed, purchased the land bearing survey No. 1270/2 admeasuring 162 sq. meters and 1271/1 admeasuring 193 sq. meters, total 1250 sq. meters on 28/10/1998 and claiming ownership over the aforesaid land. Defendant No. 8 has constructed house over the aforesaid land and Civil Suit filed by defendant No. 8 for declaration and permanent injunction bearing No. 41A/2009 was dismissed on 26/09/2011. On 19/08/2009, defendants started construction of house over the land belonging to the plaintiffs forcefully, hence the suit was filed. The trial Court dismissed the civil suit holding that the plaintiffs have failed to establish their valid title of possession over the land under dispute. First Appellate Court affirmed the judgment and decree passed by the trial Court.
3. Learned counsel for the appellant has specifically submitted that construction made by him is over the land bearing survey No. 1271/1, which is not a disputed land as is clear from documents exhibit D-10 & D-16. Despite that the trial Court as well as First Appellate Court have erred in passing the impugned judgment and decree. Learned counsel for the appellant has relied upon the decision rendered by Hon'ble Supreme Court in the case of Rohini Prasad and others Vs. Kasturchand and another [ (2000) 3 SCC 668]. Hence, learned counsel for the appellant has prayed to admit this second appeal.
4. Learned Panel Lawyer for respondent No. 10/State has vehemently opposed the submissions made by learned counsel for the appellant and has submitted that there is no merit in this second appeal. Hence, prayed to reject the appeal.
5. Heard learned counsel for the rival parties and perused the available record.
6. Section 100 CPC reads as under:-
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, f
The High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts.
The judgment emphasizes the importance of continuous possession and the lack of evidence to support adverse possession in property disputes.
In a second appeal, the High Court will not interfere with concurrent findings of fact unless a substantial question of law is involved.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
