Madhya Pradesh High Court
Ramavtar vs Gopikishan Mishra Judgement Given By: ... on 25 February, 2014
1
S.A. No. 1988 Of 2005
25.2.2014
Shri A. Usmani, learned counsel for appellant. Heard on admission.
This appeal at the instance of plaintiffs is directed against judgment and decree dated 19.7.2005 in Civil Appeal No. 20 A/2005 passed by First Additional District Judge, Sagar, arising out of judgment and decree dated 30.9.2002 in Civil Suit No. 97 A/2001 by Fourth Civil Judge Class II, Sagar.
Parties to the suit are closely related. That "Chabotra" (Platform) 10 x 72 sq.ft located at South West Corner of the House bearing No. 7/27 C situated at Sadar Bazar, Sagar (suit property) has been the cause of dispute.
Suit property was solely owned by Durga Prasad, which he got in share out of House No. 7/27 from other brothers, i.e., Ganga Vishnu, Gokaran Nath and Prayagnarayan. (House No. 7/27 was initially in the name of Jairam who had four sons viz., Durga Prasad, Ganga Vishnu, Gokaran Nath and Prayagnarayan the house was partitioned amongst them vide Civil Suit No. 14 A/1983).
[That, as per Ex. D/1 and P/1 old grant admeasuring 2526 sq. ft in the name of Mst. Tulsabai by devolution in occupation of Durga Prasad.] Durga Prasad had seven sons, viz., Babulal, Radheshyam, Ramsunder, Shyammanohar, Sidheshwar, Tribavan and Krishna Murari, Kalawati W/o Radheshyam and Rampyari W/o Ramsunder, relinquished their rights in the suit property by Dastbardari Ex. P/3 and Ex.P/4 in favour of plaintiff Shyam Manohar. Similarly Ghanshyam Prasad S/o Babulal 2 relinquished his right in favour of Shyammanohar vide Dastbardari dt. 15.12.1990, Ex. P/5.
Thus, besides plaintiff, Sidheshwar and Tribhuvan, his other brothers were in joint occupation of suit property, i.e., House No. 7/27 C. The defendants owe their right from Mst. Pyaribai said to be the owner in title of House No. 7/27 B. Action was brought by the plaintiff for declaration and permanent injunction in respect of the "Chabutara" that the same being part and parcel of the suit property, the interference in the use thereof by the defendant was without any authority. The defendants besides denying plaint allegation filed a counterclaim and sought quashment of Dastbardari dated 10.12.1986 and 15.12.1986 Ex P/3 and Ex. P/4.
Trial Court framed following issues:
1- D;k okn layXu uD'kksa esa n'kkZ, x, edku dk ekfyd oknh gS \ 2- v- D;k oknh ds i{k esa fd, x, nLrcjnkjksukesa fnukad10-12-86 ,oa fn- 15-12-86 nkSjku orZeku okn esa fd, x, gSa \ c- D;k mDr nLrcjnkjksukesa voS/k ,oa uktk;t gS \ 3- D;k laiw.kZ pcwrjksa dk mi;ksx vdsyk oknh 60 o"kksZ ds yxkrkj djrk pyk vk jgk gS rFkk izfroknhx.k dk mlesa dksbZ gd o fgLlk ugha gS \ 4- v- D;k izfroknhx.k okn pcwrjs dk tcju dCtk djuk pkgrs gSa \ c- D;k izfroknhx.k }kjk mDr pcwrjs ij edku cukus ls oknh dks izkIr lqfo/kkvksa gok] jks'kuh ,oa fuLrkj ls oafpr gksuk iM+sxk \ 3 5- D;k oknh bl vk'k; dks LFkkbZ fu"ks/kkKk ikus dk vf/kdkjh gS fd] izfroknhx.k okni= layXu uD'kksa esa gjs jax ls n'kkZ, Hkkx ij fdlh izdkj ls n[ky u nsa \ 6- v- D;k okn dk mfpr ewY;kadu ugha fd;k x;k gS \ izHkko c- D;k oknh us mfpr U;k;'kqYd ugha nh gS \ 7- D;k oknh dk okn vof/k okf/kr gS \ 8- D;k oknh dk okn esa uku tksbUMj dk nks"k gS \ 9- lgk;rk ,oa okn O;;
And decreed the suit in favour of the plaintiff holding 1- ?kksf"kr fd;k tkrk gs fd okn layXu uD'ksa esa gjs jax ls n'kkZ, x, edku 2526 oxZQqV esa ls oknhx.k ds fgLls rd ,oa mlds fdlh Hkkx ij izfroknhx.k Lo;a vFkok vU; fdlh ds ek/;e ls gLr{ksi u djsa A 2- okn layXu uD'ks esa gjs jax ls n'kkZ, x, ekdu ua- 7@27 **lh** ls yxs pcwrjs **IysVQkeZ** ij oknhx.k ds fuLrkj o miHkksx ds vf/kdkj esa gLr{ksi u djsa A 3- okni= ds lkFk layXu ekufp= bl t;i= dk vfHkUu vax gksxk A 4- mHk;i{k viuk viuk okn O;; ogu djsaxs A 5- vf/koDrk 'kqYd izekf.kr gksus ij fu;ekuqlkj 500@& ns; gksxk A mijksDrkuqlkj t;i= dh jpuk dh tkos A The appellate Court in appeal by defendant, however, reversed the decree on a finding that the plaintiff has failed to prove that the Chabutara was a part of House No. 7/27 C which came in share of Durga Prasad and that the plaintiff was using the same for 60 years.4
As to finding that the 'Chabutara' was not a part of House No. 7/27 C appellate Court relied on Ex. P/1 and D/1 which are the extract of GLR Register maintained by the Cantonment Board within which the suit property is situated as also the statement of Sanjeev Kumar Jain, DW/2, a Sub Engineer, Cantonment Board.
Appellants question the judgment and decree by the Appellate Court on the ground that it has erred in ignoring the evidence of DW 1 who admitted of having no document or title in respect of 'Chabutara' and having admitted the possession of the plaintiff. The contention, however, when tested on the anvil of the statement of DW1, it is borne out from fair reading thereof that, he categorically stated about having use of the 'Chabutara' for nistar purpose as it was never partitioned amongst Durga Prasad and his brothers. This fact is corroborated by Ex. D/1 C the compromise deed between Durga Prasad and his brothers and the extract from General Land Register Ex. D/1 issued by the Cantonment Board, Sagar. Furthermore, plaintiff failed to establish being in exclusive possession of suit property.
Thus the finding arrived at by the Appellate Court being based on cogent material evidence on record, does not warrant any interference.
In respect of the contention that the Cantonment Board, a party in suit was not impleaded in appeal, therefore, the appeal was liable to be dismissed for misjoinder.
In the suit, as apparent from record, no relief was sought against cantonment Board and was not a necessary party as would warrant dismissal of appeal.5
Having thus considered, no substantial question of law arises for consideration. Consequently, appeal is dismissed in limine. No costs.
(SANJAY YADAV) JUDGE Vivek Tripathi