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2016 Supreme(MP) 413
IN THE HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Dilip Kumar Sharma and another v. Harish Chandra Jaiswal (dead) the Power of Attorney
Second Appeal No.381 of 2007 (Gwalior) : against the common judgment and decree dated 24.4.2007, passed by
XII Additional District Judge (Fast Track), Gwalior in
civil appeals; Decided on 1.7.2016.
B.B. Shukla with P.D. Agarwal for appellants;
S.K. Jain with M.L. Bansal for respondents.
Headnote:Civil P.C., 1908 -- Ss.11, 100, O.6 R.17, O.22 R.3 and 5 and O.41 R.27 -- second appeal -- suit for declaration, injunction and recovery of possession by plaintiff -- decreed but claim dismissed for mesne profits -- defendants not furnished any details of heirs of plaintiff -- for want of material trial Court cannot hold enquiry without any basis -- appellants intended to deviate from real controversy by raising flow pleas to protect their illegal possession which cannot be sustained -- plea of res judicata rightly dismissed being earlier suit for easementry rights -- no illegality committed by both Courts below while rejecting applications under -- findings of fact based on proper appreciation of evidence -- no substantial question of law arose -- appeal dismissed.
Held : Consequently, in the opinion of this Court, both the Courts below have recorded pure findings of fact based on proper appreciation of the evidence brought on record. The findings are impregnable in nature. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference under section 100 of the Code. 1993(II) MPWN 216, 2012(III) MPWN 62, 2007(III) MPWN 52, 1996(I) MPWN 204, 1(1999) CLT 504 and 1(1999) CLT 508 distinguished.
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1. This appeal under section 100 CPC by defendants' is against the common judgment and decree dated 24.4.2007 passed by XII Additional District Judge (Fast Track Court), Gwalior disposing of two appeals; viz. Civil Appeal No.5-A/2007 preferred by the defendants' against part of the judgment and decree dated 26.10.2006 passed by the trial Court in Civil Suit No.97-A/2003 decreeing suit of the plaintiff for declaration, injunction and recovery of possession and Civil Appeal No.11-A/2007 has been preferred by the plaintiff against denial of recovery of mesne profits.
No appeal in this Court has been preferred by the plaintiff against the part of the judgment and decree relalting to First Appeal No.11-A/2007.
2. Facts necessary for disposal of this appeal are to the effect that original plaintiff had filed a suit for declaration, permanent injunction and recovery of possession inter alia contending that the defendant No.1 has entered into an agreement with the plaintiff for an area of 24 feet 6 inches falling on the southern side of the house of the plaintiff situated at Godwali Sadak, Lashkar, Gwalior. Defendant No.2 is wife of defendant No.1. Defendant No.1 persuaded plaintiff to execute power of attorney in favour of defendant No.2. Thereafter, taking advantage of absence of the plaintiff who is residing at Ujjain, the power of attorney holder, i.e., defendant No.2 on 18.5.1989 executed the sale deed on 18.5.1989 in favour of defendant No.1 for an excess area of 27 feet 7 inches (over and above the area entered into agreement). Thereafter, defendant No.1 while raising construction over an area of 27 feet 7 inches has encroached the area of plaintiff admeasuring 3 feet 1 inches and 29 feet 4 inches and constructed stair case (jeena) and latrine. Plaintiff having come to know such encroachment has served a notice dated 15.9.1995 upon defendant No.1. Though in the reply submitted to the notice on 31.10.1995 defendant No.1 has admitted that excess area was mentioned in the sale deed dated 18.5.1989 and given to understand that amendment in the sale deed has been carried out in the Office of Sub-Registrar (Stamps), but defendant No.1 continued to be in physical possession of the excess area and did not remove the encroachment. As the defendant No.1 clearly denied to vacate the premise and hand over peaceful possession of the same finally on 14.6.2003, the plaintiff has filed the suit on 17.6.2006 for the reliefs as stated above.
3. Defendants' filed written statement and denied plaint allegations. It is inter alia contended that defendants' are in possession only to the extent of 24 feet 6 inches of the area from north to south side of the house. There is wrong measurement alleged by the plaintiff. Defendants' have not encroached the area as claimed by plaintiff. Suit is filed with ill-intention contrary to the facts.
4. An alternative plea has also been raised that even otherwise, defendants' are in possession of the area in question for the last more than 12 years'. Hence, acquired title by adverse possession. Hence, prayed for dismissal of the suit.
5. On the aforesaid pleadings, trial Court framed issues No.1 to 6 and answered issues No.1, 2, 4, 5 and 6 in the affirmative in favour of plaintiff and decreed the suit, accordingly. However, the issue No.3 relating to the claim for mesne profits at the rate of Rs.500/- per month has been dismissed.
6. Defendants' filed First Appeal No.5-A/2007 and raised the following contentions :
(i) the original plaintiff, Harishchandra Jaiswal had filed the suit through power of attorney holder, Jagannath Singh Dhakad. Later on, substitution of the power of attorney holder for the plaintiff on the strength of 'Will' dated 16.8.1989 claimed to have been propounded by the original plaintiff was not proper and legal, therefore, the suit was not maintainable;
(ii) the suit could have proceeded only if the heirs or natural heirs of the original plaintiff are brought on record;
(iii) trial Court had fa
