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2013 DIGILAW 1419 (MP)

Brij Vallabh v. Baijnath Singh

2013-11-19

Rohit Arya

body2013
JUDGEMENT 1. The instant appeal is directed against the reversing judgment dated 29.6.2001 passed in Civil Appeal No. 49-A of 1998 by the first appel late Court setting aside the judgment and decree dated 3.4.1998 pas sed in Civil Suit No. 132A/1997. 2. This Court while admitting this second appeal has framed following substantial question of law vide order dated 13.11.2002: I. Whether the suit of the plaintiff challenging the action of the Gram Panchayat Datehara is maintainable in absence of mandatory notice by virtue of section 108 of M.P. Panchayat Raj Adhiniyam ? II. Whether the suit of the plaintiff challenging the action of the Gram Panchayat Datehara is not maintainable for want of necessary party ( ie Gram panchayat Datehara) ? III. Whether the suit for permanent injunction simplicitor is maintainable without seeking a declaration about title of the suit land which was disputed by Gram Panchayat Datehara ? IV. Whether the impugned judgment and decree of reversal has been vitiated being contrary to the principles laid down by Supreme Court in the case of Madhusudan Das v. Smt . Narayani Bai [1983 JLJ 131 (SC) = AIR 1983 (SC) 114 ] ? 3. From perusal of the order sheets , it appears that respondents – plaintiff have chosen not to appear before this Court , despite service of notice and SPC is sued. In the last order sheet dated 3.10.2013, this Court has observed ever since 1st November 2012 despite several dates being fixed and SPC is sued to the respondents plaintiffs no one has appeared on their behalf. However, as a measure of last indulgence Court again offered opportunity to respondents to appear before the Court and case was ordered to be listed in the week commencing 21st October , 2013 but no one appeared. Under these circumstances, on 14.11.2013 case was finally heard. 4. Facts necessary for the disposal of this appeal are as under : A suit for permanent injunction was filed by the plaintiff – respondent No. 1 against the defendants -appellants . Defendants/appellants No.1 and 2 are the father and son. Defendant respondent No. 2 was Sarpanch. At the suit site in village Detehara plaintiff owns a house. There is common passage Kachha Chabutara. Defendants/appellants No.1 and 2 are the father and son. Defendant respondent No. 2 was Sarpanch. At the suit site in village Detehara plaintiff owns a house. There is common passage Kachha Chabutara. A complaint was made to Gram Panchayat against plaintiff for illegal constructions being carried out by the plaintiff over the Kachha Chabutara by turning it into Pakka Chabutara after laying foundation therein. Plaintiffs made Veranda over the suit area and only roof ceiling remained to be constructed. On such a complaint notice was issued on 22.2.1995 to the plaintiff against the construction on public place. Plaintiff apprehending the demolition by the defendant No.1 filed a suit for permanent injunction without seeking declaration and title over the suit land. 5. Plaintiff inter-alia pleaded that earlier on complaint of encroachment Panchnama was prepared on 31.1.1985 and encroached area was demolished, leaving the remaining area as it is . He raised offending construction over the area left in the Panchnama, therefore, he had a strong case, seeking permanent injunction against defendants. 6. The suit was contested by the defendants inter-alia that offending construction being raised by the plaintiff was on the public way, plaintiff does not own the suit land. 7. Trial Court framed the issues . The trial Courtin paras 10 and 11 has recorded the findings that plaintiff has not filed any documentary evidence, showing his title to the suit property, even the area which according to him was untouched while removing the encroachment by the Gram Panchayat. Under such circumstances no right could be said to have accrued to the plaintiff to raise offending construction. Hence, the trial Court has dismissed the suit, seeking permanent injunction without declaration of title. Trial Court has found that the plaintiff has done the encroachment hence, notice is sued by the Gram Panchayat was valid and the Gram Panchayat was competent to initiate action for removing the encroachment . 8. First appellate Court without there being any documentary evidence on record to the effect that as to whether plaintiff is owner of the suit property has decreed the suit of permanent injunction merely on oral evidence. The conclusion of the first appellate Court is not in accordance with law. 8. First appellate Court without there being any documentary evidence on record to the effect that as to whether plaintiff is owner of the suit property has decreed the suit of permanent injunction merely on oral evidence. The conclusion of the first appellate Court is not in accordance with law. The first appellate Court committed patent illegality holding that even if there is no documentary evidence establishing title of the plaintiff over the suit land still on the basis of oral evidence, he was held to be aowner and entit led for permanent injunction as claimed in the civil suit . It may be pointed out that suit itself was not for declaration and only for permanent injunction, relief of owner ship granted to the plaintiff dehors the relief and that too on the basis of oral evidence without there being any documentary evidence, as regards title of the suit land was unsus tainable. As such, this Court finds that there is grave illegality in the appellate order reversing the judgment of the trial Court. 9. That apart, from the perusal of the record, it is apparent that no mandatory notice was issued prior instituting the suit against Gram Panchayat as required under section 108 of the Panchayat Raj Adhiniyam, even suit cannot be said to be maintainable on this score. 10. Further admittedly that notice for removal of encroachment dated 22.2.1995 was is sued by the Gram Panchayat , still Gram Panchayat was not made a party. Hence, suit was not maintainable for want of nonjoinder of necessary party also. 11. The suit is merely for permanent injunction, without seeking declaration of title. The suit land is disputed to be that of owner ship of the plaintiff and for want of relief of declaration over the suit land, the suit could not have been decreed by the first appellate Court holding the plaintiff is owner of the suit land and entitled for permanent injunction, moreover, when there was no documentary evidence as regards title of the suit land. For the proposition where any matter at issue conclusions are to be drawn on the basis of the oral evidence, for want of documentary evidence the credibility to the witnesses as assessed by the trial Court should not normally be interfered with by the first appellate Court until and unless there is perversity of approach by the trial Court and the conclusions are drawn are based wholly irrelevant consideration. I may profitably place the reliance on the judgment of the Supreme Court in Madhusudan Das v. Smt . Narayani Bai 1983 JLJ 131 (SC) = AIR 1983 SC 114 . “When there is a conflict of oral evidence on any matter in is sue and its a resolution turns upon the credibility of the witnesses , the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. 12. As such, the first appellate Court is found to have commit tedillegality in reversing the judgment of the trial Court. 13. Accordingly, substantial question framed by this Court are answered in the affirmative. Accordingly, appeal is allowed. The order of the first appellate Court dated 29.6.2001 passed in Civil Appeal No. 49-A/98 is set aside and restored the order dated 3.4.1998 of the trial Court passed in Civil Suit No. 132-A/97. Accordingly, appeal stands allowed. No order as to costs . .............