Madhya Pradesh High Court
Nirbhaysingh vs The State Of Madhya Pradesh on 19 July, 2017
-1-
SA No.561/2016
19-07-2017
Parties through their counsel.
The present second appeal has been filed against the judgment
delivered in Civil Suit No. 99-A/2011 decided on 30-
10-2012.
In the civil suit a prayer was made in respect of the land
bearing survey No. 266 specially in relation to a well which was
in existence upon the aforesaid Survey number.
The civil suit was filed by the plaintiff in the year 2008. The
plaintiff before the trial court has not been able to prove his title
in respect of the well in question and the trial court has decided
the issue framed by the trial court in respect of title against the
applicant.
The other important aspect of the case is that the Collector,
Mandsaur has passed an order on 13-03-2006 and the other
villagers were also permitted to use the well in question. The
trial court has referred to the earlier litigation which took place
between the parties and in the earlier round of litigation also
the plaintiff has not succeeded before the trial court. The
earlier round of litigation has travelled to this court and in
Second Appeal No. 631/2004 dated 07-04-2014 this court has
passed the following order :-
"The appellant has filed this appeal aggrieved of
the judgment and decree dated 07.05.2004 passed by
the First Additional District Judge, Mandsaur in
C.R.F.A.No.8A/2004.
2. The appellant was the plaintiff in the original suit
whereby he sought declaration and permanent
injunction to the effect that he was exclusively entitled
to use the well situated in the disputed area and was
further entitled to have a decree for permanent
injunction against the respondents who prohibited to
interfere into the possession of the disputed well. The suit filed by the plaintiff was dismissed. The first -2- appellate Court however, confirmed the judgment of the trial Court, but found that the well in question was a public well and that the appellant had been using the same since long. This finding is available in paragraphs 16 and 17 of the first appellate Court judgment which is reproduced hereunder:-
16- fdUrq vihykFkhZx.k n~okjk bl ckcr~ dksbZ lk{; is'k ugha dh gS fd gS fd& fookfnr dqvk mUgh ds n~okjk iDdk cuok;k x;k A blds foijhr izn'kZ ih&7 ds o"kZ 1959&60 ds ikWplkyk [kljk dks izfof"V vuqlkj losZ uEcj&68 dh Hkwfe eas fLFkr dqvk iu?kV okyk dqvk gS A vkSj bl dq, ij lkaln fuf/k ls 35]000@& ¼iSrhl gtkj½ :0 eksVj ikbZi dz; djus ds fy;s vkSj 25]000@& :0 dqvk xgjhdj.k ds fy;s fnukad&22-8-1998 dsk xzke lHkk cSBd ds Bgjko dzekad&6 lokZuqefr ls fu.kZ; fy;k x;k] ftldh iqf"V izn'kZ Mh@1 ,oa izn'kZ Mh@2 dh xzke lHkk dh izkslsfMax ls gksrh gSa A izn'kZ Mh@1 eas iafDr;k dqvk dk mYys[k gS vkSj izn'kZ Mh@2 eas iu?kfV;k dq, ij [kpZ djus dk mYys[k gS] fdUrq izn'kZ Mh@2 dk Bgjko] izn'kZ Mh@1 dh xkze lHkk dh cSBd ls gh lacaf/kr gSa A blfy;s dq, ds uke eas fHkUurk gksrs gqa, Hkh ;g Li"V gS fd& og iu?kfV;k dqvk tks fd losZ ua- &266 eas vFkkZr@68 eas fLFkr gS] ls lacaf/kr gSa] ftldh iqf"V izn'kZ -3- ih&7 ds [kljs ls gksrh gS A izn'kZ ih&12 dk lwpuk&i= vihykFkhZ tq>kjflag dks rglhynkj n~okjk fookfnr dq, ls [ksrh djus@flapkbZ djus ds laca/k eas vkifRr ysrs gq, fn;k x;k Fkk] ijUrq bldk dksbZ tokc vihykFkhZ us rglhy U;k;ky; eas is'k fd;k Fkk] bl ckcr~ dksbZ lk{; vfHkys[k ij ugha vk;h gSa] blds foijhr 'kklu n~okjk vihykFkhZ dh fo/kqr eksVj tIr dj yh xbZ vkSj mldk fo/kqr dusD'ku Hkh foPNsfnr dj fn;k x;k A izn'kZ ih&13 dk izek.k i= xkze iapk;r dkefy;k ds ljiap n~okjk bl vk'k; dk tkjh fd;k x;k gS fd& fookfnr dqvk vihykFkhZ x.k ds iwoZtks n~okjk cuok;k x;k gS vkSj vihykFkhZx.k ds dq, ls fi;r djus eas xzke iapk;r dks vkifRr ugha gS] ijUrq ;g izek.k i= ljiap n~okjk fdl vk/kkj ij tkjh fd;k x;k] bldk dksbZ [kqyklk ugha gSa A ;g izek.k&i= fnukad 27-4-2000 dks tkjh fd;k x;k gSa vkSj blds iwoZ gh fnukad 17-4-2000 dks losZ ua- &266 eas fLFkr dq, ij xkze lHkk n~okjk lkoZtfud dusD'ku fy;s tkus dk Bgjko dzekad&13 ds n~okjk fu.kZ; fy;k x;k izn'kZ ih&14 ds Bgjko dzekad&13 izn'kZ ih&15 ds Bgjko 14 eas iapk dqvk] dkefy;k xzke dk mYys[k gS] tks losZ ua-&266 Hkwfe eas fLFkr gksdj fookfnr dq, ls -4- lacaf/kr gSa] ls Hkh bl ckr dh iqf"V gksrh gS fd&fookfnr dqvk ,d ek= oknhx.k ds vkf/kiR; dk u gksdj lkoZtfud dqvk gSa A vU;Fkk jkT;
'kklu n~okjk dq, xgjhdj.k fd;s tkus vFkok ml ij fo/kqr dusD'ku yxok;s tkus ij vihyFkhZx.k n~okjk vo';
vkifRr yh tkrhA xkze iapk;r ds izn'kZ Mh@1 ,oa Mh@2 vkSj izn'kZ ih&14 ,oa izn'kZ ih&15 dh dk;Zokgh eas Hkh fookfnr dqvk vihykFkhZx.k ds LokfeRo dk gksus vkSj oknhx.k dh vksj ls izLrqr jktLo vfHkys[k eas Hkh bl ckr dk mYys[k ugha gS fd & fookfnr dqvk muds LokfeRo dk gS vFkok muds n~okjk fuekZ.k fd;k x;k gSa A blfy;s vihykFkhZx.k izekf.kr djus eas vlQy jgsg gS fd&fookfnr dq, ij oknhx.k dk vkf/kiR; gS vkSj dqvk muds n~okjk cuk;k x;k gSa A fopkj.k U;k;ky; us vihykFkhZ x.k dks fookfnr dq, ij vfrdzked ekuus eas oS/kkfud =qfV dh gS] cfYd fookfnr dqvk lkoZtfud dqvk gksdj xkWao ds vketu ds vuqlkj vihykFkhZx.k dk fookfnr dq, ij mi;ksx ,oa miHkksx dj jgs gS a A 17- vr% vihykFkhZx.k dh vksj ls izLrqr fd;s x;s U;k; n`"Vkar orZeku bl izdj.k dks ifjfLFkfr ls fHkUu gksdj mldk ykHk vihykFkhZx.k dks ugha fn;k tk ldrk gS A -5-
3. Learned counsel for the appellant filed the second appeal, which was admitted on the following substantial question of law:-
"Whether both the Courts have committed an error of law in not granting injunction in favour of the plaintiff/appellant in view of the findings that the well over which there was a dispute was the Government well and the plaintiff was using it for a long time."
4. The learned counsel appearing for the appellant submits that he will be satisfied if it is only held that in view of the decision given by the first appellate Court that the well in question was a public well and he is also entitled to use the same.
5. To that extent, there is no objection from the other side as nobody is appearing for the respondent. In view of the aforesaid, the judgment of the first appellate Court is modified to the extent that the appellant shall also be entitled to use the well which has been declared to be a public well in paragraphs 16 and 17 of the judgment of the first appellate Court dated 07.05.2004. The respondents will have no objection to the use of the well if it is in existence by the appellant or his heirs.
The appeal is disposed of with the aforesaid directions with no orders as to costs.
C.C.as per rules."
This court in the aforesaid case has held that the well in question is a public well. However, the present appellant has also been permitted to use the same.
In the considered opinion of this court once there is a judgment and decree in respect of the same subject matter and the findings given by the trial court have been affirmed in Second Appeal No. 631/2004 holding that the present appellant as well as the public at large use the well, the judgment and decree passed by the trial court as well as by the appellate court in present second appeal does not warrant any interference.
The findings of the fact arrived at by the trial court in the present case has been affirmed by the appellate court and therefore, there are concurrent findings of fact arrived at by the -6- court below.
This court cannot interfere with the concurrent findings of fact until or unless the same are perverse or contrary to material on record. See : Narayan Rajendran and another Vs. Lekshmy Sarojini and others, (2009) 5 SCC 264, Hafazat Hussian Vs. Abdul Majeed and others, (2011) 7 SCC 189 and D.R. Rathna Murthy Vs. Ramappa, (2011) 1 SCC 158 and Vishwanath Agrawal Vs. Saria Vishwanath Agrawal, (2012) 7 SCC 288, Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148, Vanchala Bai Raghunath Ithape (dead) by LR Vs. Shankar Rao Babu Rao Bhilare (dead) by Lrs. and others, (2013) 7 SCC 173.
For the aforementioned reasons, as no substantial question of law arises for consideration in this appeal, the same fails and is hereby dismissed.
c.c. as per rules.
(S. C. SHARMA) JUDGE Rashmi