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2010 DIGILAW 697 (MP)

Kalabai W/o Harisingh Patel v. State of M. P.

2010-07-14

N.K.MODY

body2010
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment dated 12-1-2009 passed by Addl. District Judge, Kukshi, District Dhar in Civil Appeal No. ISA/2008, whereby the judgment dated 2-6-2008 passed by Civil Judge Class I, Kukshi, Dist. Dhar in Civil Suit No. 31-A/2008, whereby suit filed by the Appellant for declaration and permanent injunction was dismissed, was maintained, the present appeal has been filed. 2. Short facts of the case are that Appellant Kalabai filed a suit on 6-4-2006 before the learned trial Court for declaration and consequential reliefs alleging that upon the instructions of the Respondent No. 1 a team was constituted to enquire the status of the properties at the time of issuance of notice under Section 4 of the Land Acquisition Act. It was alleged in the plaint that since the Appellant was also the Sarpanch at the relevant time, therefore, Appellant was also included in the said team. It was alleged that Appellant never went on spot and Appellant never received any intimation to remain present on the spot along with the team. Further case of the Appellant is that in the report name of the Appellant was also mentioned. Further case of the Appellant was that upon getting the intimation that report has been submitted on 7-2-2002 Appellant intimated to the concerned authorities, wherein it was mentioned that Appellant is not responsible for the report, which has been submitted. It was alleged that in the facts and circumstances it be declared that report submitted by the team is illegal incorrect and be declared as null and void. It was also prayed that execution of the said report be restrained. The suit was contested by the Respondents. After framing of issues and recording of evidence suit was dismissed against which the appeal was filed, which was dismissed, hence this appeal. 3. The appeal was admitted by this Court vide order dated 7-7-2010 on the following substantial questions of law: a) Whether under the facts and circumstances of the case, the Civil Court has the jurisdiction to try the suit? b) Whether learned Courts below failed in wrongly interpreting the definition of Section 31 of the Specific Relief Act that the Appellant/Plaintiff has no locus standi to file the suit? c) Whether the learned Courts below was justified in dismissing the suit/appeal when the evidence of the Plaintiff have remained unrebutted? 4. b) Whether learned Courts below failed in wrongly interpreting the definition of Section 31 of the Specific Relief Act that the Appellant/Plaintiff has no locus standi to file the suit? c) Whether the learned Courts below was justified in dismissing the suit/appeal when the evidence of the Plaintiff have remained unrebutted? 4. Learned Counsel for the Appellant argued at length and submits that impugned judgment passed by the learned Courts below is illegal, incorrect and deserves to be set aside. It is submitted that suit filed by the Appellant was dismissed on the ground that suit for declaration of a document null and void is not maintainable. It is submitted that findings of the learned Courts below are illegal, incorrect'and deserves to be set aside. Learned Counsel submits that appeal filed by the Appellant be allowed and the impugned judgment passed by the learned Courts below be set aside. 5. Miss Seema Sharma, learned Counsel for the Respondents, submits that no illegality has been committed by the learned Courts below in passing the impugned judgment. It is submitted that not only on the ground of maintainability but also on merits the suit was dismissed. Learned Counsel submits that the findings recorded by the learned Courts below are concurrent findings of fact, therefore, the suit be dismissed. 6. From perusal of the record it appears that learned Courts below held that suit filed by the Appellant is not maintainable. Sub-section (1) of Section 31 of the Specific Relief Act reads as under: 31. When cancellation may be ordered. -- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. 7. From bare perusal of the section itself it is evident that if a person is having a reasonable apprehension that any instrument, which is against him is void or voidable and if left it outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court in its discretion so adjudge it and ordered it be cancelled. In view of the aforesaid position of law this Court is of the view that learned Courts below committed error in holding that the suit is not maintainable on merits. 8. From perusal of the record it appears that learned Courts below has taken into consideration the evidence on record and found that the report Ex.P/8 is duly signed by the Appellant. There is nothing in the statement which was given by the Appellant on oath to demonstrate that the report Ex.P/8 was submitted behind the back of the Appellant. Since after due appreciation of evidence learned Courts below found that the suit has no merits and was dismissed and the findings recorded by the learned Courts below are the concurrent findings of fact, therefore, in view of this, this Court is of the view that learned Courts below committed error in holding that suit filed by the Appellant is not maintainable. However, on merits since both the Courts below after due appreciation of evidence has found that the document Ex.P/8 is duly signed by the Appellant, hence no relief can be granted to the Appellant in this appeal. 8A. In view of this appeal stands disposed of.