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2024 Supreme(Online)(MP) 56709
IN THE HIGH COURT OF MADHYA PRADESH AT J A B A L P U R BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI ON THE 4th OF JANUARY, 2024 SECOND APPEAL NO.564 OF 2022 BETWEEN:- 1. SAHABLAL S/O MOJILAL, AGED ABOUT 62 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEH. GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 2. GOKUL S/O MOJI LAL, AGED ABOUT 68 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 3. PAGLA S/O MOJI LAL, AGED ABOUT 66 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 4. OJHU S/O MOJI LAL, AGED ABOUT 76 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
5. BISEN S/O MOJI LAL, AGED ABOUT 41 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 6. ASHOK S/O SHYAM LAL, AGED ABOUT 39 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
7. RANGI S/O RAMDAYAL, AGED ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 8. KANNU S/O GURUDAYAL, AGED ABOUT 71 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
9. RAMESH S/O GURUDAYAL, AGED ABOUT 66 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
10. SUDHRAM S/O GURUDAYAL, AGED ABOUT 56 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
11. HARI S/O BHAGGU, AGED ABOUT 51 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
12. RAMKISHORE S/O BHAGGU, AGED ABOUT 49 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH)
13. SHRAVAN S/O SAHAB LAL, AGED ABOUT 41 YEARS, OCCUPATION: AGRICULTURIST R/O TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) ..… APPELLANTS (BY SHRI ISHTYAQ HUSAIN - ADVOCATE) AND 1. RAMESH S/O MULLI, AGED ABOUT 63 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 2. CHAIN SINGH S/O MULLI, AGED ABOUT 46 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 3. JASWANT S/O MULLI, AGED ABOUT 71 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 4. SANTOSH S/O PINNA LAL, AGED ABOUT 41 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 5. JAGDISH S/O PINNA LAL, AGED ABOUT 39 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 6. ASHOK S/O PINNA LAL, AGED ABOUT 35 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 7. RAMKISHORE S/O PINNA LAL, AGED ABOUT 37 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 8. RAMLAL S/O SALAK, AGED ABOUT 43 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 9. RAMDAS S/O SALAK, AGED ABOUT 59 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 10. KUNDAN S/O PYARE, AGED ABOUT 61 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 11. KAPORI D/O KISAN LAL W/O SHRIRAM, AGED ABOUT 46 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 12. SUGRATI BAI D/O RAMESHWAR W/O SHIV VISHAL DEHI, AGED ABOUT 37 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 13. PHOOLWATI S/O RAMESHWAR, AGED ABOUT 33 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 14. RAMRATAN S/O KISHORI, AGED ABOUT 46 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 15. MITHIYA BAI W/O KISHORI, AGED ABOUT 46 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 16. VISHAL S/O KISHORI, AGED ABOUT 44 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 17. RAMBAI D/O KISHORI, AGED ABOUT 42 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 18. MULIYA BAI D/O KISHORI, AGED ABOUT 40 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 19. GULIYA BAI D/O KISHORI, AGED ABOUT 38 YEARS, OCCUPATION: NIL R/O VILLAGE TEMRUMAL TEHSIL GHODADONGARI DISTRICT BETUL M.P. (MADHYA PRADESH) 20. THE STATE OF M.P. THROUGH THE COLLECTOR BETUL DISTRICT BETUL M.P. (MADHYA PRADESH) .... RESPONDENT/STATE (SHRI MANISH MUKHARIYA - PANEL LAWYER) ------------------------------------------------------------------------------------- This appeal coming on for admission this day, the court passed the following:
Rohtash Babu Patel,Advocate General
JUDGEMENT
Heard on the question of admission.
2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants (hereinafter referred to as “plaintiffs”) against the impugned judgment and decree dated 9/9/2021 passed by the Principal District Judge, Betul in RCA No.
58/2019 confirming the Judgment and decree dated 24/9/2019 passed by IVth Civil Judge, Class – I, Betul in Civil Suit No. 162-A/2017. 3. The facts necessary for disposal of the present appeal in brief are that the respondents (hereinafter referred to as “defendants”) filed a civil suit for declaration of title and injunction claiming title over the old Kh.No. 56, 58, 59 [new Kh.No. 74, 76, 77 admeasuring Area 8.729 hactare, 8.528 hactare and 6.560 hactare respectively] situated at Village Temruraiyat, Teh. Ghodadongari, District Betul (hereinafter referred as “suit land”) as described in para 4 of the plaint. The plaintiff pleaded that suit property initially belong to Amnu, who had two sons Dadu and Amira. Plaintiffs are the Legal Heirs of Amira, whereas the defendants are the Legal Heirs of Dadu. Plaintiff also claimed that they are in possession of the suit property bearing Kh.No. 76 and Kh.No. 77, after the death of Amira however the defendants have mutated their names on above suit land in revenue record. Later on plaintiff through amendment in the plaint incorporated the pleadings regarding the adverse possession on the suit land since 2000 and got the title over there.
4. The Defendants replied in their written statement that plaintiffs are not in possession of suit land, previous suit instituted by plaintiff's forefathers has been dismissed vide judgment and decree dated 27/11/1991 in Civil Suit No.77-A/91 and the same was upheld in Civil Appeal No. 5-A/1992 vide judgment dated 23/2/1994 by first Appellate Court and in Second Appeal No. 423 of 1994 by this Court. 5. Learned trial court after framing issues in the matter has proceeded to decide preliminary issue no.4 on question of res judicata and dismissed the suit of the plaintiff on the ground of “res judicata”.
6. Being aggrieved, the plaintiffs have preferred First Appeal before Principal District Judge, District Betul, through RCA No.58/2019 vide judgment dated 9/9/2021. The appeal was found without merits and therefore, dismissed. This Second appeal is filed by plaintiffs being aggrieved by judgment and decree passed in the RCA No.58/2019 by the first Appellate Court.
7. Learned counsel for the plaintiffs submits that the parties in previous suit though shares common ancestor but their claim is based on different cause of action, thus courts below ought to have granted an opportunity to lead evidence in the instant case and thereafter, it ought to have proceeded to decide the issue of res judicata as it is apparent that issue of res judicata involves a mixed question of law as well as facts, thus it could not be decided as preliminary issue. In previous suit, the present defendant did not claim any declaration of title in their favour though there was unequivocal challenge to their title and they were out of possession on the suit land.
8. In support of their contentions, learned counsel for the plaintiffs cited the judgement of Hon’ble Supreme Court in the case of Satyanath and another vs. Sarojamani reported in AIR 2002 SC(Civil)1536. 9. Per contra, learned counsel for the respondent no.2/State opposed the second appeal.
10. Heard learned counsel for the parties and perused the record.
11. The Second Appeal is filed under the provisions of Section 100 of CPC which provides that Second Appeal is entertainable by the High Court if it is satisfied that the case involves a substantial question of law. Section 101 of CPC provides that no second appeal shall lie except on the ground mentioned in section 100 of CPC.
12. As regards the scope to entertain Second Appeal, the Supreme Court in the case of Municipal Committee, Hoshi
