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Madhya Pradesh High Court

Virendra Kumar vs Mangilal on 5 May, 2015

                                1                   SA 392/07
                Virendra Kumar & Another Vs. Mangilal & others

5/5/15

       Shri        T.C.Singhal,    Advocate       for     the
appellants/defendants.
       Shri    Brijesh Tyagi, Advocate for the respondents

No.1, 2 (i)(ii)(iii)/plaintiffs.

Respondent No.4/State by Shri G.S.Chauhan, Panel Lawyer.

Heard on the question of admission.

Present second appeal has been preferred by the appellants/defendants under Section 100 of the Code of Civil Procedure against the judgment and decree dated 13/4/07 passed by the Additional District Judge, Chachoda, district Guna, in Civil Appeal No.48A/06 filed by the respondents/plaintiffs against appellants and the State herein whereby the judgment and decree dated 18/9/2006 passed in C.S.No.54A/06 by the trial court against the plaintiffs was set aside. It was held by the appellate court that the agricultural land bearing Survey no. 38/1 having an area of 2.000 Hectare situated at village Kumbhraj, district Guna was owned by Ramcharan s/o Mangilal and after his death, the suit property devolved upon plaintiffs and they are legally owners of the same. Accordingly, the defendants are restrained to create any kind of interference into peaceful possession of the plaintiffs.

Virendra Kumar & Another Vs. Mangilal & others It is submitted by the learned counsel for the appellants that initially the suit was dismissed by the trial court vide impugned judgment dated 18/9/2006 passed in Civil Suit No.54A/06 from the court of Civil Judge, Class-II, Chachoda, district Guna. The suit was filed for declaration and injunction against the appellants and because plaintiff No.1 Ramcharan failed to depose before the trial court, the suit was dismissed. He contended that the first appellate court without examining the said fact and the order (Ex.D/1) passed on 28/5/1998 from the court of Tehsildar, Kumbhraj committed gross error in passing the impugned judgment and decree in favour of the plaintiffs which is not sustainable in law.

On the contrary, it is submitted by Shri Tyagi, learned counsel for the respondents No.1 and 2 that after taking into consideration the documents in regard to possession over the suit property such as Khasra entries vide Ex.P/1 to P/4 and the factum of proving the case by examining one of the plaintiffs, namely Mangilal, the first appellate court rightly decreed the suit in favour of the plaintiffs. It is submitted that there was no need for Ramcharan to enter himself into a witness box to prove the case when one of the plaintiffs was already examined by the trial court. Apart that no documentary evidence was produced to show 3 SA 392/07 Virendra Kumar & Another Vs. Mangilal & others adverse possession by the appellants. In such premises, after taking into consideration entire case and the statements of the defendants who in other words have admitted possession of the plaintiffs over the suit land, the the learned appellate court does not seem to have committed any illegality in passing the impugned judgment. It is therefore prayed that the appeal may be dismissed being bereft of merits.

Having regard to the arguments advanced by the counsel for the parties the entire evidence on record has been perused.

On careful examination of the reasoning given by the first appellate court, it is evident that after re-appreciating the entire evidence adduced by the parties, the decree against the appellants has been passed. This court therefore does not find any involvement of substantial of question of law in this appeal. The appeal is dismissed in limine.

The decree be drawn up accordingly.

Record of the case be sent back to the courts-below with a copy of this order.

(B.D. Rathi) Judge (Bu)