Madhya Pradesh High Court
Manoj vs Indore Nagar Palika Nigam on 2 February, 2018
~1~
HIGH COURT OF MADHYA PRADESH
SA No. 304/18
Indore, Dated: 2/2/2018
Shri V.K. Assudani learned counsel for appellants.
Heard on the question of admission.
This second appeal under Section 100 of CPC is at the
instance of plaintiffs challenging the concurrent judgments of
two courts below. Trial court by judgment dated 29/4/13 had
dismissed CS No. 22A/10 filed by appellants and the first
appellate court by judgment dated 4/12/2017 by dismissing the
appeal has affirmed the judgment of trial court.
Appellants had filed suit for declaration and permanent
injunction with the plea that land in survey No. 50 & 51 belongs
to Ishwardatt Mishra i.e. grand-father of appellant no.1 and
father-in-law of appellant no.2 which was under cultivation
having a bore well and near it he had constructed a residential
house and was living therein. When the land came near Indore
City, it was got diverted in 1962 by Ishwardatt Mishra and after
getting map sanctioned he had developed Mishra Nagar
Colony and sold plots to different persons and thereafter had
constructed a water tank and was living by constructing a
house below the water tank, but the land on eastern side of the
bore well has been declared by respondent/municipal
corporation as public park and the respondents were trying to dispossess the appellants, therefore the present suit was filed.
The respondents by filing written statement had denied plaint averments and had taken the plea that the suit property is reserved for park since the time of development of Mishra nagar colony and the suit property belongs to ~2~ respondent/municipal Corporation in which the appellants have no right.
Trial court had dismissed the suit holding that appellants could not prove their title or lawful possession on the suit land and they also could not prove that respondents were trying to illegally interfere in their possession. The first appellate court while dismissing the appeal has affirmed the judgment of the trial court.
Learned counsel for appellants submits that respondents cannot dispossess the appellants without following the due process of law, therefore, to that extent the suit of appellants deserves to be decreed.
Having heard the learned counsel for appellants and on perusal of the record it is noticed that both the courts below have elaborately dealt with the oral as well as documentary evidence on record and have found that appellants could not prove title on the suit land. It has also been found that appellants had not clearly pleaded the plot number of the well which was subject matter of the suit and the house which has been constructed below the tank. Hence the sufficient details of suit property have not been pleaded. The courts below have also noted admission of appellant no. 1 i.e. PW-1/Manoj that he was not having any sanctioned map for construction and his admission about Ex.D-1 the layout map of Mishra nagar in which the area in question has been shown as park. Courts below have also noted his admission that water tank and bore well are constructed within the park area and that appellants were not having any sanctioned map or other material relating to their lawful construction on the suit land.
~3~ Since the appellants have failed to prove his title on the suit land therefore, suit has rightly been dismissed.
So far as the arguments advanced by counsel for appellants before this court is concerned, on perusal of the record it is noticed that trial court has already examined this issue in detail and has found that appellants could not prove that respondents were illegally interfering in their possession. It has been noted that suit land is reserved for park and is a public property and if the respondents are taking action in accordance with law then it cannot be held to be illegal interference in possession of the appellants.
Having regard to the aforesaid finding of fact recorded by trial court, the plea of appellants for grant of injunction is found to be without any basis.
The issue which the appellants is raising in this appeal is concluded by the concurrent findings of fact recorded by the two courts below.
The appeal does not involve any substantial question of law which is accordingly dismissed in limine.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ Digitally signed by Bhuneshwar Datt Bhunesh DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, war Datt 2.5.4.20=3fb5bcda9fd75d95d6c7cd cbd092ee5a74a94a5534aed3a66d9 385cfcfc201e0, cn=Bhuneshwar Datt Date: 2018.02.06 15:34:55 -08'00'