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2010 DIGILAW 252 (MP)

RAM MANOHAR PATEL v. RAM PRASAD PATEL

2010-03-04

U.C.MAHESHWARI

body2010
Judgment U.C.Maheshwari J. ( 1. ) This appeal is directed by the appellant/ defendant No.2 under Section 100 of CPC being aggrieved by the judgment dated 31.7.2007 passed by 9th Additional District Judge, Jabalpur in Civil Regular Appeal No. 11- A/07, affirming the judgment and decree dated 24.2.2006 passed by Civil Judge Class- II Patan in Civil Original Suit No.36-A/04 decreeing the suit of respondent No. 1 filed for perpetual injunction with respect of disputed house described in the plaint. ( 2. ) The facts necessary to consider the question of admission in short are that respondent No. 1/ plaintiff herein filed the suit for perpetual injunction against the appellant and respondent No.2, 3 with respect of a house property situated at village Riyana described in the plaint and also marked in red colour in the annexed map with the plaint. According to it he and respondent No.2 being sons of Ghanshyam Prasad Patel are the real brothers while the appellant and respondent No.3 are the sons of respondent No.2. In the life time of Ghanshyam Patel in his presence on 19.7.1973 the family property was partitioned between him, respondent No.2 and said Ghanshyam Patel, in which the aforesaid disputed house was given to respondent No. 1 in his share and since then he is coming in possession of the same. The share of the house given to the respondent No.2 and Ghanshyam Patel are shown in the green and blue colour in the aforesaid annexed map. In such premises, the appellant and respondent No.2, 3 did not have any right in the disputed house. Said Ghanshyam Patel died on 29.5.2004. Since then the appellant and respondent No.2,3 are trying to interfere in bis possession of aforesaid house, for which a report is also lodged with the police Patan. With these pleadings the aforesaid suit is filed. ( 3. ) In the written statement of the appellant by denying the averments of the plaint, it is stated that the description of the house received by the respondent No. 1 in the alleged partition is not specifically pleaded in the plaint. On what basis the measurement of the property is shown in the map, the same is not described with particulars. The annexed map is also disputed. Since 1973, the respondent No.1 is residing at Gotegaon in his in-laws family where he also constructed his own house. On what basis the measurement of the property is shown in the map, the same is not described with particulars. The annexed map is also disputed. Since 1973, the respondent No.1 is residing at Gotegaon in his in-laws family where he also constructed his own house. In such premises he could not be deemed to be the resident of village Riyana. In additional pleadings it is stated that the possession of the alleged house was never taken by the respondent No.l. Just after two months from the alleged partition of 1973, the respondent No.l was constructing his house at Gotegaon for which he being in need of the money has sold his share of the house with possession to father Ghanshyam Prasad Patel in consideration of Rs.7,000/-, since then the respondent No.l was never remained in possession of the same. As such after the partition since 1973 onward for 20 years Ghanshyam Prasad Patel was remained in possession of the house and thereby he perfected his title on it by adverse possession and after his death the same is coming in possession of the appellant and respondent No.2. During the aforesaid period no proceedings for taking over the possession was initiated by the respondent No. 1. The suit is filed on insufficient court fee on improper valuation. The same is also filed barred by limitation. With these pleadings the prayer for dismissal of the suit is made. ( 4. ) In view of the pleadings of the parties after framing the issues the evidence was recorded. On appreciation by holding the respondent No. 1 is in possession of the house since 1973 from the time of the family partition and never sold the same at any point of time to his father Ghanshyam Prasad Patel and also by holding the appellant and respondent No.2 and 3 had never perfected their title on such property by adverse possession and the suit is filed with in limitation on proper valuation and court fees, decreed the same by the trial Court. On filing the appeal by the appellant/ defendant No.2, on re-appreciation of evidence by affirming the judgment and decree of the trial court the same was dismissed. Thereafter, the appellant has come forward with this appeal. ( 5. On filing the appeal by the appellant/ defendant No.2, on re-appreciation of evidence by affirming the judgment and decree of the trial court the same was dismissed. Thereafter, the appellant has come forward with this appeal. ( 5. ) Shri Anurag Tiwari, learned counsel of the appellant by referring the pleadings, evidence and the exhibited documents on record said that boundaries of the disputed property was not specifically mentioned in the plaint and without ascertaining the same the suit has been decreed by both the courts below. In such premises both the courts below have committed grave error in holding the possession of disputed house with the respondent No. 1. He further said that the partition deed settled between the respondent No. 1, 2 and their father Ghanshyam Prasad Patel has not been properly considered in accordance with the averments of it. The alleged sale transaction between respondent No. 1 and Ghanshyam Prasad Patel was wrongly disbelieved by both the Courts below contrary to the available evidence only in the lack of any registered document without taking note that the consideration of such property was paid by Ghanshyam Prasad to respondent No. 1. The perfected title of late Ghanshyam Prasad Patel and after him of the appellant and respondent No.2 by adverse possession over such house against respondent No.1 has been discarded under wrong premises contrary to the evidence. The disputed property was having worth of one lac to one lack fifty thousand and in such premises such suit should have been filed on such valuation with ad-valdrum court fees before the competent Court and not in the Court of Civil Judge Class-II. He also argued that at the stage of first appeal he filed an application under Order 26 Rule 9 of CPC to ascertain the boundaries of such property by calling the commissioner report and one another application under Order 41 Rule 27 of CPC for permission to produce the map of disputed property but the same have been dismissed under the wrong premises by the appellate Court. In continuation he said that without ascertaining the boundaries of the disputed premises the question involved in this case could not be decided. In continuation he said that without ascertaining the boundaries of the disputed premises the question involved in this case could not be decided. He also said that the map which was filed along with the application under Order 41 Rule 27 of CPC was very relevant but only on the ground that it was neither prepared nor issued by any authority by dismissing such application, the same was not taken on record. In such premises, he prayed for admission of this appeal on the proposed substantial question of law mentioned in the appeal memo. ( 6. ) Having heard keeping in view the arguments advanced by the counsel, I have carefully gone through the entire record. ( 7. ) It is apparent on record from Ex.p 1 that alleged partition took place between Ghanshyam Prasad Patel and his two sons, respondent No.l and 2. in such partition, the disputed house was given to the respondent No. 1. It appears from the impugned judgments that on appreciation of evidence in the lack of any admissible document the alleged sale transaction of the house between respondent No.1 and Ghanshyam Prasad Patel was not found to be proved and in such premises it was held that even after shifting the respondent No.l from such village to Gotegaon the disputed premises was remained in possession of the respondent No. 1. Pursuant to it, it was also held that as the property was not sold to Ghanshyam Prasad Patel then there was no question to devolve the suit property in favour or in possession of the appellant and respondent No.2. On appreciation of the evidence both the courts below had concurrently found that the appellant and respondent No.2 had not perfected their right of title over the house in dispute by adverse possession as the property was given to respondent No.l in the family partition and therefore the question of perfection of right by adverse possession could not be inferred in the matter. Aforesaid both the findings based on appreciation of evidence being findings of fact could not be interfered at this stage under Section 100 of CPC, because they do not give rise to any questions of law rather than the substantial questions of law. Aforesaid both the findings based on appreciation of evidence being findings of fact could not be interfered at this stage under Section 100 of CPC, because they do not give rise to any questions of law rather than the substantial questions of law. It is settled proposition of law that concurrent findings based on evidence even the same are erroneous could not be interfered under Section 100 of CPC at the stage of second appeal unless the same are involved any substantial question of law as laid down by the Apex Court in the matter of "Kondiba Dagadu Kadam v. Savitribai Sopan Gujar" reported in AIR 1999 S.C. 2213 . ( 8. ) Apart the above in view of the law laid down by this Court in the matter of Seeganram Vs. Magnia reported in 1986 MPWN (Vol.1) 87 and Ram Singh Vs. Kashiram reported in 1997 RN 195, the question of adverse possession being finding of fact could not be interfered at this stage under Section 100 of CPC. In such premises this appeal does not give rise to any substantial question of law. ( 9. ) The concurrent findings with respect of possession of the property based on appreciation of evidence being finding of fact could not be interfered at this stage as laid down by the Apex Court in the matter of Kishanlal Biharilal Maheshwari and others v. Ramrao Hanumant Rao Patil and anothers reported in AIR 1981 S.C 1183 . ( 10. ) So far the question of valuation and court fees is concerned, the impugned suit was filed by respondent No. 1 stating his possession over the disputed property for issuing perpetual injunction restraining the appellant and respondent No.2, 3 from inferring in his possession of the same. In such premises the suit could be filed on the fixed valuation with the Court fees accordingly. In such premises I have not found any circumstance in the case at hand giving rise to any question of law rather than substantial question of law. ( 11. In such premises the suit could be filed on the fixed valuation with the Court fees accordingly. In such premises I have not found any circumstance in the case at hand giving rise to any question of law rather than substantial question of law. ( 11. ) So far rejection of the applications of the appellant by the appellate Court filed under Order 41 Rule 27 of CPC and under Order 26 Rule 9 are concerned, the appellant has not filed any authentic or certified copy of the map issued by any authority with the application but he has filed the map prepared by some independent agency or the person which could have been filed before the trial Court also, thus taking into consideration that no sufficient cause is shown by the appellant about non-filing such document in the trial Court during pendency of the suit such application was dismissed. In such findings I have not found any perversity or the circumstance giving rise to substantial question of law. ( 12. ) In view of the partition deed of the year 1973 the fact of partition or family arrangement was apparently on record and as per concurrent findings of both the courts below the respondent No. 1 is found in possession of the disputed premises, therefore, in such circumstance the appellate Court has not committed any error in dismissing the appellants application filed under Order 26 Rule 9 of CPC. In such premises the reasons given by the appellate court for such dismissal does not give rise to any substantial question of law in the present appeal. ( 13. ) In view of aforesaid discussion, I have not found any perversity in the impugned judgments giving rise to any questions of law rather than substantial questions of law requiring any consideration under Section 100 of CPC at this stage. Resultantly, the appeal is hereby dismissed at the stage of motion hearing. Appeal dismissed.