Madhya Pradesh High Court
Murlidhar (Died) vs Annu Pathan on 24 June, 2016
1 S.A..No.429/2009
Murlidhar (dead) Th. L.Rs. Vs. Annu Pathan
24.6.2016.
Shri Anand Bhardwaj, learned counsel for the appellant.
Shri Pramod Pachauri, learned counsel for the
respondent.
This appeal has been filed on behalf of the plaintiff being aggrieved by the judgment and decree dated 26.3.2009 passed in regular Civil Appeal No.29-A/2008 passed by the Court of First Additional Judge to the First Additional District Judge, Datia. The present appellant was the plaintiff before the Court of First Civil Judge Class II, Datia, wherein he filed a civil suit for declaration and permanent injunction against the defendant on the ground that there exists a ruin behind the house of the ownership of the plaintiff, namely house No.20/9 situated at Mohalla Bihari Ji Road and it be declared that he is the owner of the said ruin. It was alleged that said ruin was purchased by the grand-father of the plaintiff, namely Shri Basantlal Agrawal, from one Dabbu on 8.12.1934 for a consideration of Rs.25/-. It is further mentioned that plaintiff's father had taken permission from Municipal Council, Datia, to carry out construction on the said ruin on 15.4.1964, but said construction could not be made. Thereafter, the present plaintiff had established an aluminum factory on the said ruin. It was further averred that on 26.7.2005 the defendant started digging foundation on the said ruin and when the plaintiff and other residents of the colony tried to interrupt him, then cause of action accrued in favour of the plaintiff and he filed a suit for declaration and permanent injunction.
Learned trial Court dismissed the suit after recording a finding that the burden to prove that his grand-father had purchased the said ruin on 8.12.1934 from one Dabbu son of Bindu Neekhra and the said ruin was received by the plaintiff as 2 S.A..No.429/2009 a result of family partition was on the plaintiff by leading cogent evidence, however, the plaintiff has failed to prove the said facts as were averred by him in his plaint, and therefore, the suit was dismissed.
The plaintiff filed first regular civil appeal mainly on the ground that defendant had not entered into the witness box and plaintiff had filed an application under Order 6 Rule 17 CPC to bring certain documents on record, but the said application under Order 6 Rule 17 CPC was dismissed, and therefore, he could not bring on record the judgment and decree passed in Civil Suit No.82-A/1998 between Radhamohan Vs. Murlidhar & Ors., so also the judgment and decree passed in first Civil Appeal No.6- A/1999 passed by the Court of 2nd ADJ (Fast Track Court) Datia and that has prejudiced his case. Learned First Appellate Court after giving careful consideration to the various pleadings dismissed the first appeal after recording a finding that plaintiff has failed to discharge the burden that his father had purchased the ruin situated behind the House No.20 Ward No.9, Datia, and that building permission was obtained in relation to the said ruin only. It has also recorded a finding that the said ruin is recorded in the name of the defendant in the records of Municipality. It is also mentioned that no evidence was led to prove the dimensions of the said ruin, nor any evidence was led to show that plaintiff had received the said ruin in family partition. Recording such a finding, the first appeal was dismissed.
This Court has perused the judgment and decree passed in civil suit No.82-A/1998 Radhamohan Vs. Murlidhar & Ors. which is in relation to House No.15, Banke Mohalla, and not in relation to House No.20/9. In the said suit, the ruin on which ownership has been claimed by the appellant was not in dispute. Therefore, dismissal of the said suit No.82-A/1998 and appeal 3 S.A..No.429/2009 preferred by Radhamohan does not fortify the claim of the appellant on the said ruin situated behind House No.20/9. Thus, there is no substantial question of law involved in the present second appeal. It fails and is dismissed.
(Vivek Agarwal) Judge ms/-