IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA ON THE 9^th OF MAY, 2022 SECOND APPEAL No. 1342 of 2018 Between:-

KAMLESH KUSHWAHA W/O SHRI VISHNU KUSHWAHA, AGED ABOUT 38 YEARS, R/O PLOT NO. 13, VILLAGE SEMRA KALAN, SHANKAR GARDEN, TEHSIL HUZUR, DIST. BHOPAL (MADHYA PRADESH)

.....APPELLANT (BY SHRI SACHIN KUMAR VERMA, ADVOCATE )

AND VIBHA KUMAR D/O LATE SHRI DR. M. KUMAR W/O SHRI SANTOSH MAHALAHA, AGED ABOUT 65 YEARS, R/O E- 1/22, PRESENTLY R/O. C-3, E GANDHINAGAR, ARERA COLONY, GWALIOR (MADHYA PRADESH)

.....RESPONDENT (BY SHRI PIYUSH BHATNAGAR, ADVOCATE)

This appeal coming on for final hearing this day, the court passed the following: JUDGMENT (09-05-2022)

This appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant – defendant calling in question the judgment and decree dated 24-04-2018 passed by the Xth Additional District Judge, Bhopal (MP) in Regular Civil Appeal No.93/2016 reversing the judgment and decree dated 25-02-2016 passed by VIth Civil Judge Class-I, Bhopal (MP) in Civil Suit No.712-A/2011.

2. The facts of the case, succinctly stated are that the respondent - plaintiff through her power of attorney holder filed a suit for declaration of title and permanent injunction and also for getting vacant possession by demolishing the construction made over the disputed plot against the appellant – defendant inter-alia contending that the respondent – plaintiff was the owner and title holder of the suit property bearing khasra no.236/268/236, area 1800 Sq. ft. situated at Plot no.13, in village Semra Kalan, Ashoka Garden, Bhopal. She purchased the said plot from one Manohar Lal Babbar through registered sale deed dated 30.11.1968 and she had transferred all her rights with regard to disputed plot to one Purshottam Raghuwanshi, through power of attorney dated 8.12.2011 and a copy whereof was attached with the plaint. It was also averred in the plaint that the husband of the appellant – defendant is in police service having great influence in the area and therefore, the local administration is not having courage to initiate any action against him. The husband of the appellant – defendant had put the building material on the subjective plot on 20.12.2011. The power of attorney holder tried to talk with the appellant –

defendant then only she learnt that the appellant is having a spurious registered sale deed whereas Firoz Badami is not having any title of the subjective plot and therefore, the registered sale deed is not having any force. It was further the case of the respondent – plaintiff that the appellant–defendant had started construction of wall in between the pillars from 21.12.2011, sought relief of declaration and permanent injunction and also sought temporary injunction during the pendency of the civil suit. It was further the case of the respondent – plaintiff that the cause of action arose on 21.12.2011 when the appellant – defendant tried to encroach upon the plot of the respondent – plaintiff. Valued the suit as per rules and paid the proper court fees and thereafter, the suit was filed.

3. The appellant – defendant filed written statement denying the averments made by the respondent – plaintiff in the plaint and also filed reply to the application under Order 39 Rule 1 and 2 of CPC filed by the respondent – plaintiff and stated that she had acquired the suit property in the year 1998 and actual construction was started in the year 2007. It was also averred that the respondent – plaintiff had not challenged the sale deed executed in favour of the appellant – defendant on dated 5.12.2001 and no relief was sought for declaration of sale deed as null and void not binding upon the respondent – plaintiff, and prayed for dismissal of the suit.

4. The trial Court after framing the issues recorded the evidence of the parties and thereafter the suit was dismissed. Being aggrieved, the respondent – plaintiff challenged the judgment and decree passed b