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2009 DIGILAW 368 (MP)

Om Prakash v. Lalit Kumar

2009-03-23

P.K.JAISWAL

body2009
ORDER 1. This appeal is filed by the defendants against the judgment and decree dated 23.12.2002 passed by First Additional District Judge, Vidisha in Civil Appeal No. 62-A/2002 whereby the Lower appellate Court affirmed the judgment and decree of the trial Court by which the suit of the respondent-plaintiff was decreed. 2. The respondent-plaintiffs had filed a suit for mandatory injunction on the ground that the father of the plaintiff namely Shri Daulatram Jain and the father of the defendant No.1, Mitthulal were the real brothers and defendant No.2 is the son of defendant No.1. Daulatram Jain father of the plaintiff purchased a suit house from Lado alias Radhbai Wd/o Kundanlal vide registered sale deed dated 4.11.1969 (Ex. P-l) situated in Khari Pathak Road, Vidisha in the name of the plaintiff and his brother Babulal who was minor at that time. 3. The plaintiff's father executed a Will and the front portion with a depth of 40 ft. x 4 ft. wide lane was given to the plaintiff. The defendant No. 1 purchased the house adjoining to the house of the plaintiff and started construction and projection in the suit lane. The said projection work was completed on 24.11.1980, hence prayed for mandatory injunction for removal of the projection so constructed by the defendant. By amendment it was prayed that the defendants have completed the construction of projection and four drains have also been constructed and therefore decree be passed for removal of projection and all the drains so opened by the defendants. 4. The appellants-defendants filed their written statements denied the averments made in the plaint and contended that the suit land was jointly owned by the plaintiff and Babulal and they are joint owners of the suit property. The plaintiff has not impleaded the legal heirs of Babulal and therefore, the suit filed by him was not maintainable. 5. Both the Courts below after appreciating the oral and documentary evidence and on the basis of the admissions made by DW 1 came to the conclusion that construction over the disputed portion was made in the year 1980. It is also held that by Will the plaintiff became owner of the suit lane and therefore, the suit filed by the present plaintiff is maintainable. The Courts below decreed the suit of the plaintiff and directed for removal of construction over the suit lane. 6. It is also held that by Will the plaintiff became owner of the suit lane and therefore, the suit filed by the present plaintiff is maintainable. The Courts below decreed the suit of the plaintiff and directed for removal of construction over the suit lane. 6. The sole contention of the learned counsel for the appellants that the suit property was jointly owned by the plaintiff and Babulal as per sale deed dated 4.11.1969 and without impleadment of legal heirs of Babulal the suit filed by the plaintiff was not maintainable and both the Courts below committed legal error in decreeing the suit of the plaintiff. In support of the said contention learned counsel for the appellants drew my attention to the decision of Orissa High Court in the case of Biswanath Panda and others v. Dr. Lokanath Panda, AIR 1977 Orissa 170. In the case of Biswanath Panda (supra) the tone of Para-I of the plaint does not show that plaintiffs 2 and 3 have averred that they are representing all the heirs of Laxman. On the other hand, the assertion in that paragraph shows that only those two plaintiffs represent, the interest of Laxman. This would mean that they are denying these daughters and heirs of the predeceased daughter having any interest in the property left by Laxman. The Orissa High Court has held that decisions relied on by the appellants have no application to the present case. The decisions relied on by the respondent clearly establish that the daughters and heirs of the predeceased daughter of Laxman are necessary parties and in their absence the suit is not maintainable. Here in the present case the fact are entirely different. At the time of execution of the sale deed dated 4.11.1969 Babulal was minor and thereafter he expired and by virtue of Will suit property came in the share of plaintiff. This fact was never disputed by the legal heirs of Babulal nor appellants in their statements. Considering these facts the decision cited by the learned counsel for the appellant will not be applicable in the present facts and circumstances of the case. 7. This fact was never disputed by the legal heirs of Babulal nor appellants in their statements. Considering these facts the decision cited by the learned counsel for the appellant will not be applicable in the present facts and circumstances of the case. 7. Learned counsel for the appellants drew my attention to the decision of this Court at Principal Seat Jabalpur in the case of Ramrato Baba v. Smt. Bismilla USmani and others [2006 RN 124 = 2006 (1) MPLJ 429], wherein it has been held that as per revenue record and other documents the property either in part or whole remained in possession of the temple and the temple is also in existence on such land. Therefore, the temple or deity was the necessary party in the suit for passing the effective decree regarding title and possession of the property. Here in the present case it is not in dispute that the plaintiff is owner of the suit property. The plaintiff is owner of the suit lane and appellants illegally carried on construction over the suit lane and therefore, both the Courts below have not committed any legal error in decreeing the suit of the respondent. In view of the concurrent findings of fact recorded by the Courts below no substantial question of law is arising in this appeal. The appeal filed by the appellants has no merit and is accordingly dismissed in limine.