IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL ON THE 17^th OF NOVEMBER, 2022 SECOND APPEAL No. 420 of 2011 BETWEEN:-

SMT.CHANDRA SINGH W/O PREETAM SINGH, AGED ABOUT 43 YEARS, BEHIND KALI MATA MANDIR, KOTESHWAR ROAD (MADHYA PRADESH)

.....APPELLANT (BY SHRI HARISH DIXIT- ADVOCATE)

AND

1. DEVENDRA KUMAR RASTOGI (DECEASED)TH:LRS. SMT.MADHU RASTOGI, W/O LATE DEVENDRA KUMAR, AGED ABOUT 55 YEARS, OCCUPATION: HOUSEWIFE SHITALA GALI, GWALIOR (MADHYA PRADESH)

2. DR.MANISH RASTOGI S/O LT.DEVENRA KUMAR RASTOGI, AGED ABOUT 37 YEARS, OCCUPATION: DOCTOR SHITALA GALI,GWALIOR (MADHYA PRADESH)

3. SMT.SONIYA RASTOGI D/O LT.DEVENRA KUMAR RASTOGI W/O VIAY RASTOGI, AGED ABOUT 36 YEARS, OCCUPATION: INDRA NAGAR,RAIBARELLY RAIBARELLY (U.P.)

(MADHYA PRADESH)

4. SMT. RICHA RASTOGI D/O LT.DEVENDRA KUMAR RASTOGI OCCUPATION: CHOWK LUCKNOW LUCKNOW (MADHYA PRADESH)

5. SMT. SWETA RASTOGI W/O AKHILESH RASTOGI OCCUPATION: HINDUPURAM, MATHURA (MADHYA PRADESH)

6. PREETAM SINGH S/O PANNALAL KIRAR, R/O MOHALLA DHARAMPURA, GHASMANDI, GWALIOR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI N.K.GUPTA- SENIOR ADVOCATE WITH SHRI S.D.SINGH-

ADVOCATE)

This appeal coming on for hearing this day, the court passed the following:

ORDER

This second appeal has been filed under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 06/05/2011 passed by the Court of XIV Additional District Judge, Gwalior in Civil Appeal No.13A/10 confirming the judgment and decree dated 02/07/2010 passed by the Court of X Civil Judge, Class-I, Gwalior in Civil Suit No.118A/08 by which suit has been dismissed.

Initially ancestral of respondent - Devendra Kumar Rastogi filed a civil suit against the appellant and her husband- Preetam Singh for permanent and mandatory injunction which was filed. During trial of the aforesaid suit, respondent- Devendra Kumar Rastogi died and his LRs were taken on record. Appellant filed her written statement alongwith her husband separately and trial Court framed the issues and took evidence of both the parties and decreed the suit of respondent. Aggrieved by the aforesaid judgment and decree, appellant filed an appeal before the First Appellate Court and Appellate Court, vide its judgment dated 06/05/2011, dismissed her appeal. Aggrieved by the same, she preferred this second appeal before this Court.

The facts of the case are that predecessor of respondent-Devendra Kumar Rastogi in execution case pending in the Court of First Civil Judge, Gwalior bearing No.124/61-62 in which decree in favour of father of respondent- Devendra Kumar Rastogi has been passed against judgment debtor- Kishanchand who purchased 8 shops and adjoining house at Hazira Road, Gwalior, bearing Municipal No.29/876 and map of which is enclosed in consideration amount of Rs.24,600/- in auction on 25/03/1963. Thereafter, sale deed was executed in favour of Ramcharan Lal Rastogi by the Court. Alongwith aforesaid sale deed Ex.P/1, Map Ex.P/2 has been annexed. In the aforesaid sale deed, boundaries of purchased property has been mentioned. As per sale deed in north of purchased property, house of judgment debtor and afterwards, land of Hanuman Prasad is situated. Thereafter, on 11/05/1971 judgment debtor sold remaining part of his property which is half portion of wall measuring 16ft. X 8ft by registered sale deed to same decree holder - Ramcharan Rastogi for a consideration amount of Rs.200/- in which description of property in the east of Hanuman Prasad and Anand Swaroop are mentioned and got possession of half wall. Alongwith sale deed, map of purchased property has also been annexed. Thereafter, Ramcharan Rastogi died and that property has been inherited by Devendra Rastogi who is son of Ramcharan Rastogi. After purchasing of the aforesaid remaining property including wall from Kishanchand, appellant started construction of lanter adjoining to the wall due to which respondent got inconvenience. He filed the complaint before Municipal