Madhya Pradesh High Court
Jayendrasingh vs Tejbahadur on 24 January, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
S.A. No.1485/2017
Jayendrasingh S/o Late Savaisingh Tanwar
V/s. Tejbahadur S/o Late Kishoresingh Tanwar.
-: 1 :-
Indore, dated : 24.01.2020
Applicant by Shri Abhishek Gilke, Advocate.
Respondent by Shri Yashpal Rathore, Advocate.
The plaintiff has filed the present appeal being aggrieved by the judgement and decree dated 28 th June, 2016 passed by the First Civil Judge, Class-I, Alirajpur and judgment dated 06.04.2017 passed by the District Judge, Alirajpur; whereby Civil Suit and First Appeal both have been dismissed. The First Appellate Court has dismissed the appeal on merit as well as on the ground of res judicata.
2. Facts of the case in short are as under :-
In order to understand relationship between plaintiff and defendant and the controversy between them the family tree is reproduced below :-
Late Gulab Singh
----------------------------------------I------------------------------------------
I I I I I Samrath Singh Lt. Sawai Singh Sawant Singh Vishwanath Singh Lt. Kishore Singh
------I-------- --------I---------
Jayendra Tej Babu Ramsingh
(pff.) (Def.No.1) (Def.No.2)
3. According to the plaintiff, his grandfather Late Gulab Singh was owner of plot situated at Maharana Pratap Marg, Alirajpur area 52.6 x 118 sq. ft. = 1235 sq. ft.. The aforesaid plot was divided between five sons and they constructed their house as under :-
THE HIGH COURT OF MADHYA PRADESH S.A. No.1485/2017 Jayendrasingh S/o Late Savaisingh Tanwar V/s. Tejbahadur S/o Late Kishoresingh Tanwar. -: 2 :-
(1) House No.22 Kishore Singh, (2) House No.23 Samrath Singh, (3) House No.24 Sawant Singh, (4) House No.25 Sawai Singh and (5) House No.26 Vishwanath Singh and their names were recorded in the record of Municipal Council.
4. According to the plaintiff, after the death of Sawai Singh he became the owner of house No.25 and after the death of Kishore Singh the defendants became the owner of house No.22 and accordingly their names have been recorded in the record of Municipal Council. There is a common land behind the plot No.22 and 25 area 25.2 x 53.7 = 653 sq. ft. which was belonging to the father-in-law of Late Gulab Singh namely Late Nanji Baghela. During his life time the name of Sawai Singh son of Gulab Singh was mutated in the records in the year 1969-70 with the permission of Municipal Council. Savai Singh constructed a two storied house (hereinafter referred as "suit property"). According to the plaintiff, at the time of partition between five brothers the suit property was recorded in the name of Kishore Singh in the revenue record in the year 1975-76.
5. The plaintiff filed a Civil Suit No.26A/08 against the defendants and other before the Civil Judge, Class-II, Alirajpur on 05.09.2006 for taking possession of the lease land area 52.6 x 118 = 1235 sq.ft. (suit property). The defendants filed the Civil Suit No.28A/08 for the relief of declaration and permanent injunction for the lease land area i.e. suit property contending that they are in possession as their father had constructed a house over 582 sq.ft. land and left the area of 653 sq.ft. vacant. They have contended that THE HIGH COURT OF MADHYA PRADESH S.A. No.1485/2017 Jayendrasingh S/o Late Savaisingh Tanwar V/s. Tejbahadur S/o Late Kishoresingh Tanwar.
-: 3 :-the partition had not been taken place between the brothers. Vide judgment and decree dated 22nd February, 2014 the learned Civil Judge dismissed the suit filed by the plaintiff i.e. Civil Suit No.26A/08 and also dismissed the Civil Suit No.28A/08 filed by the defendant. It has been held that the plaintiff has failed to prove the ownership and possession over the vacant land 653 sq.ft. behind the house Nos.25 and 22. After the aforesaid dismissal of the suit the present plaintiff filed FA No.3A/14 and defendant also filed F.A. No.5A/14 that too have been dismissed vide judgment dated 17.10.2014. Now, the plaintiff has filed the present suit against the defendants for declaration of title, possession and permanent injunction of the same suit property. On 22.02.1960, the defendant filed the written statement denying the averment made in the plaint and also raised the issue of res judicata. In the plaint, plaintiff has given a date of cause of action dated 22.02.2014 and 17.10.2014 i.e. dismissal of the Civil Suit as well as First Appeal. Plaintiff sought the declaration of the title of the suit land possession from the defendant and permanent injunction. The learned Trial Court framed five issues for adjudication. The plaintiff and defendants examined their witnesses. After examining the evidence came on record vide judgment and decree dated 28.06.2016 the Civil Judge, Class-I has dismissed the suit with the finding that the plaintiff has failed to prove his title in earlier suit as well as in this suit.
6. Being aggrieved by the judgment and decree plaintiff preferred a First Appeal that too has been dismissed vide judgment dated 6 th April, 2017.
THE HIGH COURT OF MADHYA PRADESH S.A. No.1485/2017 Jayendrasingh S/o Late Savaisingh Tanwar V/s. Tejbahadur S/o Late Kishoresingh Tanwar.
-: 4 :-7. I have heard learned counsel for the parties.
8. The plaintiff filed the suit No.6A/08 in respect of the same suit property that his father was the owner of the suit property but it had been recorded in the name of Kishore Singh in the revenue record after the partition in family. Vide judgment and decree dated 22.02.2014 (Ex.P/1) the Civil Court has held that there was no partition in the family and the suit land is in possession of the defendants No.1 & 2. Neither the plaintiff nor the defendants examined their remaining three brothers in the Court to prove the plea of partition. The learned Civil Judge has decided that the plaintiff is in possession of house No.25 and defendants are in possession of house No.22 and the open land area 653 sq.ft. behind both the houses neither belongs to plaintiff nor defendants. The First Appeal filed by the plaintiff defendant has been dismissed by the First Appellate Court, therefore, the said findings had attained finality. In the said suit plaintiff had a cause of action to claim the title but for the purpose of title he filed the present suit as well as for possession which is also barred under Order 2 Rule 2 of CPC. He ought to have claimed the partition in the present suit because in the earlier suit it has been held that there was no partition between the five sons of Gulab Singh. The plaintiff has failed to prove his ownership over the suit land, therefore, both the courts below have not committed any error of law as well as on fact while dismissing present suit as well as appeal. I do not find any ground and question of law to interfere in this appeal. Hence, the Second Appeal is dismissed.
THE HIGH COURT OF MADHYA PRADESH S.A. No.1485/2017 Jayendrasingh S/o Late Savaisingh Tanwar V/s. Tejbahadur S/o Late Kishoresingh Tanwar.
-: 5 :-
( VIVEK RUSIA )
JUDGE
ns
NEERAJ NEERAJ SARVATE
2020.01.29 14:01:11
SARVATE +05'30'