IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA th ON THE 8 OF MAY, 2024 SECOND APPEAL No. 1271 of 2020 BETWEEN:-

LAKHANLAL SONI S/O LATE NARMADA PRASAD SONI SINGH, AGED ABOUT 55 YEARS, OCCUPATION: AGRICULTURIST, R/O VILL. BANDAKPUR, TEH. AND DIST. DAMOH (MADHYA PRADESH)

.....APPELLANT (BY SHRI B.K. SHUKLA - ADVOCATE)

AND

1. MITHLESH KUMAR SWAMI S/O LATE RAMRATAN SWAMI, AGED ABOUT 45 YEARS, R/O NEAR GOVT. MIDDLE SCHOOL BANDAKPUR, TEH. AND DIST. DAMOH AT PRESENT INFRONT OF PRABHUDAS KISHOREDAS BIDI COMPANY, VILL. BAMHORI BANDAKPUR, TEH. AND DIST. DAMOH (MADHYA PRADESH)

2. EXECUTIVE OFFICER, PUBLIC WORKS DEPARTMENT, DAMOH, DISTRICT DAMOH (MADHYA PRADESH)

3. STATE OF M.P. THROUGH COLLECTOR DAMOH, DISTRICT DAMOH (MADHYA PRADESH)

.....RESPONDENTS (RESPONDENT NO.2 & 3/STATE BY MS. PRITI SINGH -PANEL LAWYER)

Reserved on : 01.05.2024 Pronounced on : 08.05.2024 This appeal having been heard and reserved for orders, coming on for pronouncement this day, the court passed the following:

O R D E R

The judgment and decree passed by Seventh Additional District Judge, Damoh, on 9.7.2020 in First Civil Appeal No.RCA 24/2020 are challenged in this second appeal. By this judgment and decree, the first appellate court dismissed the appeal and affirmed the judgment and decree passed in Civil Suit No.RCSA 45-A/2016 on 27.6.2019 by Second Civil Judge, Class I, Damoh.

2. The appellant (hereinafter referred to as “plaintiff”) filed a civil suit for seeking the relief of declaration of title and permanent as well as mandatory injunction. His claim was that he purchased the suit property and was its owner but respondent no.1 (hereinafter referred to as “defendant no.1”) was attempting to encroach on a part of this land, marked as “Ka-Kha”. It was also claimed that an illegal construction was made by defendant no.1 over the Government land regarding which mandatory injunction was prayed for removal of this illegal construction. The learned trial court partially allowed the suit by holding that the suit property of Khasra No.980, area 0.060 hectare, was of the ownership and possession of plaintiff but it also observed that there was no encroachment of defendant no.1 over this suit property and the illegal construction raised by defendant no.1 over the Government land cannot be directed to be removed as no notice under Section 80 CPC was given by plaintiff to the respondents no.2 and 3 (hereinafter referred to as “defendants no.2 and 3”) before the institution of civil suit. These findings were affirmed by the learned first appellate court.

3. The plaintiff in this second appeal has taken the ground that the finding given by trial court and confirmed by the first appellate court on issue no.3 is perverse and deserves to be set aside. It has been claimed that the non- compliance of provision of Section 80 CPC was never argued by defendants no.2 and 3 and without there being any objection raised regarding this non-

compliance, the courts below dismissed the suit partly. The encroachment of defendant no.1 was on the Government land (road) and this encroachment was possible only with the connivance of defendants no.1 and 2, yet the courts below failed to consider the dispute in correct perspective and disallowed the relief to the plaintiff. It is, therefore, prayed that this second appeal be admitted upon proposed substantial questions of law.

4. Arguments of learned counsel for plaintiff have been heard and the records of the courts below have been perused.

5. The pleadings of this case reveal that here the defendant no.2 was not a formal party in the suit as specific pleadings were made against it by claiming that defendant no.2 failed to take appropriate action against the encroachment made by defendant no.1 over the Government passage. For this reason, a prayer for mandatory injunction was made in the plaint. In the light of these facts, the citation of Sant Prasad v. Kausla Nand Sinha and others 2018 (2) M.P.L.J. 34 relied up