IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

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ON THE 16 OF MARCH, 2026 SECOND APPEAL No. 1 of 2005 DURGA PRASAD Versus SMT. MINTU DEVI AND ANR.

Appearance:

Mr. Mahesh Goyal - Advocate for appellant.

Mr. Ankur Mody - Advocate for respondent No. 1.

JUDGMENT This Second Appeal under Section 100 of CPC has been filed against judgment and decree dated 06/10/2004 passed by Second Additional District Judge (Fast Track), Sheopur in Regular Civil Appeal No. 62A/2004, as well as judgment and decree dated 11/01/2002 passed by Second Civil Judge, Class-I, Sheopurkalan in Civil Suit No. 58A/2000.

2. Appellant is Defendant No. 2 who has lost his case from both the Courts below.

3. The facts necessary for disposal of present appeal, in short, are that respondent No. 1/plaintiff filed a civil suit for permanent injunction pleading inter alia that her husband late Dulichand Saraf and her jeth late Gulabchand were running a joint business and their families were also joint. Late Gulabchand had purchased two plots, i.e., Plot Nos. 17 and 18, from Municipal Council, Sheopur, out of the proceeds of joint family business.

However, on account of family disputes, a partition took place and Plot Nos. 17 and 18, which were purchased by late Gulabchand in the year 1951, came to the share of her husband late Dulichand Saraf, and accordingly, late Dulichand Saraf became the exclusive owner and in possession of both the plots. Since the husband of plaintiff has expired, therefore, plaintiff has inherited his property and has the right to file the suit. It was claimed that both the plots are situated towards the eastern side of the house of Defendant No. 1. Plaintiff has already raised a construction on Plot No. 18, and Plot No. 17 is the disputed property. The house of defendants is adjoining to Plot No. 17. One door of the house of defendants is towards the southern side facing Shivpuri road. Defendant had filed a suit in the year 1992, and under the garb of the pendency of that suit, they constructed two windows on the second floor towards the plot of plaintiff and also brought down one pipeline adjoining to the plot of plaintiff. A temporary injunction order was passed in Civil Suit No. 20/1992, thereby directing the parties to maintain status quo. Taking advantage of the weak position of plaintiff, defendants started making an attempt to take illegal possession of Plot No. 17. On 10/10/1996, defendant came to Plot No. 17 and started claiming that he has won Suit No. 20A/1992 and started getting Plot No. 17 cleaned. One babool tree, which was standing for about 10 years, was also forcibly cut. The wood of the tree fell on the house constructed over Plot No. 18, thereby causing substantial damage to the wall and now, it is claimed that under a false declaration that defendant has won Suit No. 20A/1992, he wants to take possession of Plot No. 17, requiring the filing of present suit for permanent injunction.

4. Defendant No. 1 filed his written statement and denied that plaintiff is the exclusive owner of Plot No. 17. It was claimed that sons of Dulichand, namely Sureshchand, Kamal Kishore, and Hukum Chand, as well as his daughters Usha Bai and Munni Bai are also the legal representatives of Dulichand, therefore, plaintiff, on her own, is not entitled to file the suit. It was claimed that by virtue of temporary injunction order, he has got an easementary right over Plot No. 17. He has a right to discharge his waste water towards Plot No. 17 and has a right to use Plot No. 17 for approaching his plot. Civil Suit No. 4A/1996, which was initially registered as Civil Suit No. 20A/1992, is pending. It was claimed that in fact, defendant is in possession of the property in dispute for the last 30 years from the lifetime of his father.

5. Defendant No. 2 filed his written statement and admitted that initially Dulichand and Gulabchand were carrying out a joint family business, and later on, because of family dispute, a partit