Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1139 (MP)

Anand @ Chhotclal Soni v. Mahavir Prasad Shukla

2011-09-28

K.K.TRIVEDI

body2011
Judgment ( 1. ) THIS appeal under Section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree dated 20-9-1994, passed in Civil Appeal No. 52-A/1994, by the First Additional District Judge, Rewa, arising out of judgment and decree dated 30-7-1994, passed in Civil Suit No. 445-A/1986, by the Second Civil Judge Class II, Rewa, and has been admitted on the following substantial questions of law :- "(i) Whether decree can be passed without compliance of Order 7 Rule 3 and Order 20 Rule 9 of the CPC ? (ii) Whether the Lower Appellate Court can dismiss the appeal without giving notice to the other side ?" ( 2. ) BRIEF facts leading to filing of this appeal are that respondents/plaintiffs filed a suit in the Court of Second Civil Judge Class II. Rewa, claiming that it be declared that they are the owner of the part of the land of Plot Nos. 2682 and 2683 situated at Mohalla Katra. Tehsil Huzur, District Rewa, and by removing the wall constructed by the appellant/defendant, they be delivered back the possession of the said land with damages of Rs. 2,000/-. It was categorically contended by the respondents/plaintiffs that they are the owner of the plot over which a house No. 16/209 was constructed by their father, who has expired. On the western side of the plot of the respondents/plaintiffs Plot No. 2684 is situated which was earlier owned by one Jamuna Awadhiya and which has been purchased by the appellant/defendant by registered sale-deed, dated 2-12-1981. A temporary house was constructed on the said plot, which has been demolished and a new house is constructed by the appellant/defendant over the paid plot. On the boundary of the said plot, a wall of stone was constructed over which further construction has been made and the house is constructed by the appellant/defendant exceeding the plot area purchased by him. In the plaint, description of the plot of the respondents/plaintiffs was given and in Paragraph 2 of the plaint, it was categorically stated that the boundaries of the plots owned by the respondents/plaintiffs are marked as 'A', 'B', 'C and 'D' in the plaint map which was annexed with the plaint. It was categorically said that the said plaint map is the part of the plaint. It was categorically said that the said plaint map is the part of the plaint. The disputed plot was shown with red colour and described by words 'Aa', Tha', 'Ga' 'Va', 'La', 'Ra' and 'Ya' in Hindi Devnagiri. A further declaration was made in the plaint that the said area will be called as disputed land. In Paragraph 4 of the plaint, the respondents/plaintiffs have categorically said that there was open land left between house constructed over the plots of the respondents/plaintiffs and the temporary house constructed on Plot No. 2684, which was on the plot of the respondents/plaintiffs and the said land was left open with an object to use the same as conservancy for draining out the rain water and cleaning of the latrine. It was the categorical allegation made by the respondents/plaintiffs in the plaint that while making construction over the Plot No. 2684, purchased by the appellant/defendant, the open area left by the respondents/plaintiffs was encroached upon and a house was constructed by erecting a wall just with the wall of the house of the respondents/plaintiffs. It was said that such a construction was made with a deliberate intention to grab the land of the respondents/plaintiffs and, therefore, the respondents/plaintiffs were entitled to the decree of declaration of their rights over the disputed land and possession of the said land. ( 3. ) THE suit was contested by the appellant/defendant and a written statement was filed. THE learned Trial Court considered it necessary to appoint a Commissioner for the inspection of the disputed plot and after getting the report from the Commissioner, recorded the evidence of the parties. THE Commissioner was also examined as a witness, who gave a report to the effect that the appellant/ defendant has constructed the house on the land more than the land purchased by him under the registered sale-deed, the said Commissioner was exhaustively cross- examined by the Counsel of the appellant/defendant, but nothing contrary to Commission report could be brought on record. ( 4. ) AFTER recording of the evidence, learned Trial Court reached to the conclusion that the appellant/defendant has in fact encroached upon the land of the respondents/plaintiffs and that because of such construction made by the appellant/ defendant, the right of enjoying the light and air by the respondents/plaintiffs was violated. The privacy of the respondents/plaintiffs was also disturbed. ( 4. ) AFTER recording of the evidence, learned Trial Court reached to the conclusion that the appellant/defendant has in fact encroached upon the land of the respondents/plaintiffs and that because of such construction made by the appellant/ defendant, the right of enjoying the light and air by the respondents/plaintiffs was violated. The privacy of the respondents/plaintiffs was also disturbed. The suit was decreed in favour of the respondents/plaintiffs by the Trial Court. Against the judgment and decree, the appellant/defendant filed a Civil Appeal before the learned Lower Appellate Court, which on consideration of the entire facts marshalling of the impugned judgment and decree passed in the civil suit and the entire evidence of parlies came to the conclusion that there was no error on facts or law committed by the learned Trial Court and. therefore, the appeal of the appellant/defendant was not to be admitted for final hearing. The same has been dismissed. Feeling aggrieved by such dismissal of the first appeal, the appellant/ defendant has preferred this second appeal, which has been admitted on the aforesaid substantial questions of law. ( 5. ) THE provisions of Order 7 Rule 3 of the Code of Civil Procedure, prescribe that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. ( 6. ) THE provisions of Order 20 Rule 9 of the Code of Civil Procedure are pari materia to the provisions of Rule 3 of Order 7 of CPC, the only difference is that such description is required to be given under Order 7 Rule 3 of the Code of Civil Procedure in the plaint and such description is required to be given in the decree for recovery of immovable property, under Order 20 Rule 9 of the Code of Civil Procedure. The pleadings made by the respondents/plaintiffs have been described in aforesaid paras of this judgment. The pleadings made by the respondents/plaintiffs have been described in aforesaid paras of this judgment. A plaint and simple reading of the paras of the plaint and a perusal of the plaint map which has been marked and made a part of the plaint, it is clear that identification of the suit land can be made from the said document and the statement and pleadings made in the plaint. Thus, it cannot be said that the plaint was having no specific description of the disputed property, so as to identify the same and in accordance to Order 7 Rule 3 of the Code of Civil Procedure, the pleadings were incomplete in the plaint and, accordingly, under Order 20 Rule 9 of the Code of Civil Procedure, the decree for immovable property of which identification was not possible, could not have been passed by the learned Trial Court. ( 7. ) LEARNED Counsel for the appellant/defendant has placed reliance in the case of Chutahru Bhagat and others Vs. Hiatal Sah and others, AIR 1950 Patna 306, and has contended that in view of the law laid down by the said High Court of Patna, no decree could have been passed in favour of the respondents/plaintiffs. In view of this, it is submitted by the learned Counsel for the appellant/defendant that the legal aspect was not considered by the learned Lower Appellate Court and, as such, dismissal of the appeal in motion stage itself was not permissible. The facts of the said case relied by the learned Counsel for the appellant/defendant are some what different. However, the proposition of law and the consideration done by the High Court of Patna was to the effect that a description must be there in the plaint either by means of boundaries or by means of a map so as to identify the property in suit. As has been pointed out hereinabove, not only the boundaries were shown by the respondents/plaintiff in the plaint, but a map of the disputed property was also prepared and filed along with the plaint, which was made pari of the plaint and this fact was not denied specifically by the appellant/defendant. Therefore, in the considered opinion of the Court even the law laid down by the Patna High Court does not favour the appellant/defendant rather it helps the respondents/plaintiffs. ( 8. Therefore, in the considered opinion of the Court even the law laid down by the Patna High Court does not favour the appellant/defendant rather it helps the respondents/plaintiffs. ( 8. ) THE first question of law is, thus, answered that since there was sufficient description of the suit property given in the plaint, in compliance of Order 7 Rule 3 of the Code of Civil Procedure, a decree as per the provisions of Order 20 Rule 9 of the Code of Civil Procedure could be passed by the learned Trial Court in favour of the respondents/plaintiffs. The second question of law is whether the learned Lower Appellate Court was having jurisdiction to dismiss the first appeal without issuing notices to other side ? The power of the Appellate Court are enumerated under Rule 11 of Order 41 of the Code of Civil Procedure. The said provision clearly prescribes that the Appellate Court, after sending for the record if it thinks fit so to do and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondents or his pleader. Such a provision was in force before the amendment made in the Code of Civil Procedure on 1-7-2002. Since the power was very much available with the learned Lower Appellate Court, to dismiss the appeal at motion stage itself without sending notices to the respondents in appeal, it cannot be said that judgment was passed by the learned Lower Appellate Court without authority of law. ( 9. ) WHAT is required to be seen is whether sufficiently the correctness of judgment and decree challenged before the learned Lower Appellate Court was considered by the learned Lower Appellate Court or not. In the impugned judgment, the learned Lower Appellate Court has considered all these facts, with respect to the objection under Order 7 Rule 3 or under Order 20 Rule 9 of the Code of Civil Procedure. A perusal of the impugned judgment clearly indicates that the record of the Trial Court was summoned and examined. In the impugned judgment, the learned Lower Appellate Court has considered all these facts, with respect to the objection under Order 7 Rule 3 or under Order 20 Rule 9 of the Code of Civil Procedure. A perusal of the impugned judgment clearly indicates that the record of the Trial Court was summoned and examined. The findings were tested and then after framing a question whether there was any sufficient ground available to admit the first appeal or not, the learned Lower Appellate Court reached to the conclusion that no error of law or facts was committed by the learned Trial Court in passing the judgment and decree which was impugned before the Lower Appellate Court. Not only this, the learned Lower Appellate Court marshalled the evidence adduced by the parties before the Trial Court and came to the conclusion that after the specific commission report of the Commissioner appointed by the Court when the fact was found that house was constructed by the appellant/defendant on more area of the land than purchased by him and obviously the over construction was made on the eastern side of the house constructed by the appellant/defendant where the land of the respondents/plaintiffs' lay. Thus, the learned Lower Appellate Court has rightly reached to the conclusion that there was no ground available to interfere in the judgment and decree of the learned Trial Court and rightly dismissed the appeal of the appellant/defendant at the motion stage. ( 10. ) THIS Court in the case of Mangilal Vs. Manakchand, 2001(3) M.P.H.T. 191 , has categorically held that the First Appellate Court has power to dismiss the appeal even in motion hearing under Order 41 Rule 11 of the Code of Civil Procedure if the learned Lower Appellate Court reaches to the right conclusion that the Trial Court has properly appreciated the evidence, has rightly taken into account the documents produced before the Trial Court and has rightly taken into consideration the facts stated before the learned Trial Court. In view of this, the second question of law framed is also to be answered that First Appellate Court has not committed any error in dismissing the appeal of the appellant/defendant in motion hearing. ( 11. ) THUS, answering the question of law framed in negative against the appellant/defendant, this appeal fails and is, hereby, dismissed. In view of this, the second question of law framed is also to be answered that First Appellate Court has not committed any error in dismissing the appeal of the appellant/defendant in motion hearing. ( 11. ) THUS, answering the question of law framed in negative against the appellant/defendant, this appeal fails and is, hereby, dismissed. In the facts and circumstances, the parties will bear their own costs of this appeal.