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2001 DIGILAW 478 (MP)

Indore Municipal Corporation v. Mohd. Sabir

2001-07-06

S.B.SAKRIKAR

body2001
JUDGMENT 1. Defendant-appellant has directed this appeal against judgment and decree dated 16.5.1996 rendered by 11th Additional District Judge, Indore in CS 116-A/93 thereby decreeing the suit of the respondent No.1-plaintiff for the possession and mesne profit of the suit property. 2. Briefly stated the facts of the case are that the open land situated on the southern side of Municipal House No. 367 (old No. 86/3) and 183 in Rajmohana, Indore measuring 61' x 49' 10" belongs to plaintiffs. On 12.6.1990 employees of the Municipal Corporation, Indore took possession of the aforesaid land by force and refused to hand over the possession of the same despite the requests of the plaintiffs by filing applications dated 29.6.1990 and 27.7.1990. It is stated that plaintiff is the lawful owner of the suit land and it is established from the judgment dated 9.5.1990 of the Civil Judge, Class I, Indore passed in CS 58-A/67 thereby passing a decree of declaration of title of the suit land in favour of the plaintiff-respondent No.1 and against the appellant. The plaintiff also claimed mesne profit by way of damages for taking forcible possession of the suit land from respondent No.1, and claimed Rs. 21,000/- towards mesne profit till the date of the suit. Plaintiff also claimed future mesne profit at the rate of Rs. 5,000/- per month till delivery of the possession of the suit land. 3. On service of notice on appellant-defendant and extending sufficient opportunities, no written statement was filed on behalf of the appellant as such his right of filing written statement was closed by order dated 23.1.1996 and there is no written statement of the appellant on the record. Defendants-respondents No. 2 to 6 filed their written statement and admitted the plaintiffs' claim. 4. Learned trial Court framed certain issues and recorded findings on all the issues in favour of the respondent No. 1 and decreed plaintiffs' suit as indicated above. Aggrieved the appellant has filed this appeal. 5. Considering submissions of the learned counsel for the appellant and on perusal of the record, it emerged that the respondent No. 1-plaintiff based his claim of title on the suit land on the basis of the judgment and decree dated 9.5.1969 rendered by Civil Judge, Class 1, Indore in CS 58-A/67 and the findings recorded therein. On perusal of the record and the copy of the judgment Ex. On perusal of the record and the copy of the judgment Ex. P-4 passed in CS 58-A/67 by Civil Judge Class 1, Indore, it emerged that in the year 1967, respondent No. 1-plaintiff has filed a suit for declaration of his title against the appellant with regard to the same suit land and the said suit was decreed in favour of the respondent No. 1-plaintiff. It is not in dispute that aggrieved by the aforesaid judgment of Civil Judge, Class I, Indore the appellant has filed an appeal in the Court of District Judge, Indore and the same was dismissed by the judgment and decree dated 1.12.1969 passed by 1st Additional District Judge, Indore. On perusal of the copy of the notice Ex. P-8, given to the appellant on behalf of the respondent No.1, it emerged that on taking forcible possession of the suit land by the appellant in June, 1990, respondent-plaintiff requested to hand over the possession of the suit land to the plaintiffs. In reply to the aforesaid notice, the appellant by letter dated 27.7.1990 Ex. P-7, informed the plaintiffs that he can take appropriate steps in the Court for obtaining the vacant possession of the suit land. On receipt of aforesaid reply, the instant suit was filed in the trial Court on behalf of the respondent-plaintiffs and against the appellant. 7. There is no evidence or the ground in defence available on the record to rebut the plaintiffs' case as projected on behalf of the plaintiffs before the trial Court. There appears no reason to disbelieve the certified copy of the plaint Ex. P-2 and the judgment Ex. P-4 filed on behalf of the respondent No. 1 in connection with CS No. 58-A/67 filed in the Court of Civil Judge, Class I, Indore. On perusal of the aforesaid judgment and the findings recorded by the trial Court it is established that by the aforesaid judgment the plaintiff's title over the suit land was accepted and a decree of declaration of title was passed in his favour. 8. In my considered opinion, the trial Court has committed no error in holding that respondent No. 1-plaintiff is the owner and the title holder of the suit land and the appellant-defendant has no right to take forcible possession of the said land. 9. On perusal of reply dated 27.7.1990 Ex. 8. In my considered opinion, the trial Court has committed no error in holding that respondent No. 1-plaintiff is the owner and the title holder of the suit land and the appellant-defendant has no right to take forcible possession of the said land. 9. On perusal of reply dated 27.7.1990 Ex. P-7 of the notice given by the appellant, it is clear that on demanding the possession of the suit land, the appellant informed the plaintiffs to take appropriate action in the Court of law for obtaining the possession of the suit land and refused to deliver the possession of the disputed land. 10. In view of the aforesaid fact, the plaintiff-respondent No. 1 becomes entitled for the recovery of the mesne profit by way of damages from the appellant and the trial Court has committed no error in decreeing the plaintiff's suit for the same. 11. As a result of the foregoing discussion, I do not find any substance in this appeal and accordingly dismiss the same affirming the impugned judgment and the decree of the trial Court passed in favour of the respondent No. 1-plaintiff. The appellant shall bear cost of this appeal and also pay cost of the respondent No.1. Counsel fee as per schedule is allowed on certificate. A decree be drawn up accordingly.