Madhya Pradesh High Court
Jagannath Gupta vs Basant Lal on 9 February, 2022
Author: Anjuli Palo
Bench: Anjuli Palo
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 9th FEBRUARY, 2022
SECOND APPEAL No. 206 of 2021
Between:-
JAGANNATH GUPTA S/O NARMADA PRASAD GUPTA,
AGED ABOUT 83 YEARS,
1.
SHRIRAM WARD EAST SINGVAHINI WARD MANDLA
(MADHYA PRADESH)
VIJAY GUPTA S/O JAGANNATH GUPTA,
2. AGED ABOUT 46 YEARS,
SHRIRAM WARD (EAST SINGVAHINI WARD)
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK LALWANI, ADVOCATE)
And
BASANT LAL S/O MOTILAL GUPTA,
AGED ABOUT 61 YEARS,
1.
SHRIRAM WARD EAST SINGVAHINI WARD MANDLA
(MADHYA PRADESH)
KANHAIYA GUPTA S/O MOTILAL GUPTA,
AGED ABOUT 55 YEARS,
2.
SHRIRAM WARD (EAST SINGVAHINI WARD)
(MADHYA PRADESH)
MUNICIPAL COUNCIL MANDLA
3. THROUGH CHIEF MUNICIPAL OFFICER
DISTT. MANDLA (MADHYA PRADESH)
.....RESPONDENTS
2 S.A.No. 206/2021
(Heard through Video Conferencing)
This appeal is coming on for admission this day, the court passed the
following:
JUDGMENT
This second appeal has been filed by the appellants/defendants being aggrieved by the judgment and decree dated 07.02.2020 passed by the District Judge, District - Mandla (MP) in Regular Civil Appeal No. 22/2018 affirming the judgment and decree dated 26.09.2018 passed by the 1 st Civil Judge Class I, Mandla (MP) in Civil Suit No. 08A/2016.
2. As per the facts of the case, the respondents/plaintiffs filed a suit against the appellants/defendants claiming that the suit property Plot No. 88/2 admeasuring 924 sq ft. was purchased by them from one Punnulal on 27.06.1966 vide registered sale deed and since then they are the leaseholders and in possession of the same. The Municipal Counsel/respondent No.3 issued a notice on 06.10.2001 to the appellants/defendants to demolish the wall on the said property as the same was in dilapidated condition. The respondents/plaintiffs have alleged that the appellant/defendants in collusion with the Municipal Council/respondent No.3 have demolished the said wall which stood over the suit property belong to the respondents/plaintiffs. Thereafter, they illegally erected construction i.e. wire-mesh fence, iron channel gate, tiled the floor with stone slabs/tiles and also dug a bore-well on the suit property. Hence, they filed a suit for declaring the aforesaid 3 S.A.No. 206/2021 activities illegal, for vacant possession suit land and for permanent injunction against the appellant/defendants.
3. The appellant/defendants denied the aforementioned allegations in their written statement and submitted that there was an order from the Municipal Council/respondent No.3 to demolish the wall as the same was in dilapidated condition. They also claimed that the wall was on their land i.e. Plot No. 88/1 and it was not part of the disputed suit property i.e. Plot No. 88/2. They further submitted that they have not raised any construction over the area where the wall was situated. It was further contended that the respondent/plaintiffs illegally raised construction over the disputed premises and they have no right over the suit property, therefore, they filed a counter claim against the respondent/plaintiffs to deliver the vacant possession of the encroached area after removal of the construction. The defendants also claimed that there was a previous suit in which the Court held that the appellant No.1/defendant No.1 was the owner and in possession of Plot No. 88/1 admeasuring 940 sq.ft. The respondents/plaintiffs filed a suit against them on the false ground which is liable to be dismissed.
4. The Municipal Counsel/respondent No.3 did not file any written and the trial Court proceeded ex-parte against them.
5. On the basis of the evidence adduced by the parties, the learned trial Court held that the suit property situated on Plot No. 88/2 admeasuring 924 sq. ft. belong to respondents/plaintiffs and they 4 S.A.No. 206/2021 are in possession of the suit land and the disputed wall which was demolished stood over the disputed land belonging to them. The appellants/defendants illegally demolish the wall. It was neither proved that the wall was situated over Plot No. 88/1 nor it was proved that the previous owner of the suit property was not authorised to transfer his property. Thus, the Court passed the judgment and decree for declaration in favour of the respondents/plaintiffs and permanent injunction against the appellants/defendants preventing their interference in the suit land and directed them to remove the construction, iron gate, fence, stone slabs etc. and close the bore-well on the dispute land within three months failing which the respondents/plaintiffs shall be entitled to proceed further through the Court for compliance of the direction. Appellants/defendants were also directed to pay Rs. 2,000/- as compensation.
6. The aforesaid finding has been challenged by the appellants/defendants before the appellate Court. The Appellate Court below held that from the report of the Commissioner, it was found that the wall was situated over Plot No. 88/2 which belongs to the respondents/plaintiffs. Admittedly, the municipal council demolished the same. Thereafter, iron channel gate, wire mesh fence, stone floor and bore-well were constructed by the appellants/defendants over the same. The appellate Court also held that there was an open area on which the wall stood and the same was part of Plot No. 88/2 which was sold by Durgabai to Punnulal by registered sale deed on 19.03.1955 (Ex. P/5). Punnulal sold it to 5 S.A.No. 206/2021 respondents/plaintiffs by sale deed on 27.06.1966 (Ex. P/2). The appellants/defendants have no title over the same as the sale deed was executed in favour of the respondents/plaintiffs on 27.06.1966 vide sale deed (Ex. P/2) wherein particulars of the aforesaid property was mentioned. The appeal was dismissed by the appellate Court against the appellants/defendants. Hence, this second appeal has been filed by the appellants/defendants.
7. The appellants/defendants have proposed the following substantial question of law :
(i) Whether, the suit against Municipality to challenge its notice under Section 221 and action u/s 221(4) of the Municipalities Act, 1961 without issue of mandatory notice under Section 319 of Municipalities Act, 1961 is maintainable.
(ii) Whether, the Courts below have erred in issuing order of injunction against the appellant for the action taken by the Municipal Council under Section 221(4) of the Municipalities Act, 1961.
(iii) Whether, without payment of adequate Court fees towards the additional relief of permanent injunction induced by way of amending the suit is tenable.
(iv) Whether, in absence of clear title over the disputed wall and undivided aangan, the relief of declaration could be granted.
(v) Whether, the findings pertaining to title of the plaintiff over the disputed wall and undivided aangan are perverse of the documents of title marked as Exhibit P/2, Exhibit P/4 and Exhibit P/5.
(vi) Whether the findings of Courts below that the appellant/defendant had not objected to the Commissioner's report is perverse to the written statement.
(vii) Whether, the appellate Court has erred in exempting the plaintiff from service of notice on the Municipality and deciding the appeal in its absence without compliance of Order 41 Rule 12 of CPC.6 S.A.No. 206/2021
(viii) Whether the Courts below have erred in dismissing the counter claim of the appellant/defendants.
(ix) Whether the dismissal of applicant u/o 41 rule 27 of CPC are bad in law and have affected the decision of the suit.
8. Admittedly, earlier the Plot No. 88 admeasuring 2896 sq. ft. belonged to Baijnath and his wife Durga Bai inherited the said property. Durga Bai is the mother of defendant/appellant No.1. During her lifetime, Durgabai sold 924 sq. ft. out of the aforesaid 2896 sq. ft. to Punnulal on 18.03.1955 vide registered sale deed (Ex. P/5). Both the properties were adjacent and had a common open area which was agreed to be equally divided between the parties. The appellate Court below held that appellants/defendants have not challenged the sale deed (Ex. P/5) before any forum. It is not disputed that the Plot No. 88/2 admeasuring 924 sq. ft. belonging to Punnulal and Plot No. 88/1 admeasuring 940 sq. ft. belonging to Durgabai was earlier registered in the revenue records. It is also not in dispute that Plot No. 88/2 was sold to the respondents/plaintiffs vide registered sale deed (Ex. P/2) on 27.06.1966 by Punnulal, hence, appellants/defendants have no right over the suit land.
9. Further, the appellate Court appointed a Commissioner to demarcate the boundaries of Plot No. 88/1 and 88/2. As per the report of the Commissioner, the disputed wall stood over Plot No. 88/2 which was in a dilapidated condition. The appellants/defendants did not raise any objection to the report of the Commissioner. The appellants/defendants, in their testimony, have categorically admitted 7 S.A.No. 206/2021 the fact regarding construction of iron gate, wire fence, tiles and bore- well over the suit land. As per the evidence on record, it is proved that the construction of iron gate, wire fence, tiled floor and bore-well stood over Plot No. 88/2 which was in possession of respondents/plaintiffs and the same was raised during the pendency of the suit. Hence, the appellate Court held that the suit land/open area was part of Plot No. 88/2 and upheld the judgment and decree passed by the trial Court.
10. Considering the findings recorded by the Courts below, the substantial question of law which are proposed by the appellants are entirely irrelevant with the main dispute between the contesting parties. There is no perversity or illegality in the f indings of the Courts below which are concurrent in nature. No substantial question of law arises for consideration in this appeal.
11. Accordingly, this appeal stands dismissed.
12. No order as to cost.
(Smt. Anjuli Palo) Judge vidya Digitally signed by SREEVIDYA Date: 2022.02.11 11:20:01 +05'30'