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2013 DIGILAW 153 (MP)

Bhanwarlal v. State of M. P.

2013-02-05

S.K.Seth

body2013
JUDGMENT 1. This second appeal by the plaintiff is directed against the judgment and decree passed by the 1st ADJ Shajapur. By the impugned judgment and decree, lower appellate Court affirmed the decree of dismissal passed by the trial Court in a suit for declaration and permanent injunction filed by the appellant. 2. The appeal was admitted for final hearing and following questions were formulated:- “Whether the lower appellate Court committed the error of law in deciding the suit without considering the application preferred by the appellant for amendment in view of the provisions of Order 6 Rule 17 CPC? Whether the impugned judgment and decree passed by the 1st appellate Court is perverse and illegal?” 3. Shorn of unnecessary details, the controversy lies in a narrow compass and may be stated as follows. 4. Appellant brought a suit for declaration of title and permanent injunction alleging that he is Ex-Jamindar of village Matewa and the suit property as described in the plaint is his Khud-Kashat land and he became Bhoomiswami thereof after Zamindar Abolition Act, 1951 came into force. It was claimed that since 1951 his name is recorded in the revenue records. It was further claimed that on account of wrong entry made by Patwari an illegal and false case of trespass was registered against him as a result his title came under a cloud necessitating filing of the suit for declaration of title and permanent injunction. In the alternative plaintiff also claimed title by way of adverse possession over the suit property. 5. In the written-statement, state Government traversed each and every material allegation of fact. It was denied that the suit property was khudkashat land and belonged to plaintiff as Ex-Jamindar. It was stated that in revenue records suit property is recorded as Government land. The plea of adverse possession was specifically denied. It was stated that plaintiff was a trespasser and as such was not entitled to any relief. The suit, without prior Notice u/s. 80 was not maintainable. With these pleadings, it was submitted that suit should be dismissed with costs. 6. Trial Court on appreciation of evidence found against the plaintiff and accordingly dismissed the suit. Appellant took the matter in appeal but to no avail. Hence this appeal, as stated above. 7. We have heard learned counsel at length. We have also considered the material placed on record. 6. Trial Court on appreciation of evidence found against the plaintiff and accordingly dismissed the suit. Appellant took the matter in appeal but to no avail. Hence this appeal, as stated above. 7. We have heard learned counsel at length. We have also considered the material placed on record. It was argued that lower appellate Court erred in law in reversing the findings of the trial Court. It was also submitted that the trial Court non-suited the appellant only on the ground of non-joinder of necessary party; in the appeal Court, appellant had moved an application under Order 6 Rule 17 to amend the plaint and without considering the same appeal was dismissed, therefore, the impugned judgment is unsustainable and deserves to be set aside and case should go back for a fresh decision. We are not impressed with the submisions. 8. It is well settled that a first appeal under S. 96 Code of Civil Procedure lies from every decree passed by a Court exercising original jurisdiction. It is the duty of the Court of appeal to appraise the conclusons reached by the Court of first instance so as to set right what are the errors of fact and law. It is well settled that an appeal is a continuation of the suit and is in the nature of a re-hearing and the whole matter is at large. The only difference between a suit and an appeal is that an appeal only reviews and corrects the proceedings in a case already constituted but does not create the cause. It is clear that first Court of appeal is fully within its power to re-examine and appreciate the documentary and oral evidence. In doing so, the Court is required to marshal the evidence on record and not to catalog each and every piece of evidence. It is duty of the Court to ascertain from the relevant and admissible evidence what is the truth or probability of some fact asserted before it. In other words, what is the logical probative value of the facts relating to matter in controversy? In the case in hand, lower appellate Court on due appreciation of entire evidence, found that appellant could not prove his possession as Ex-Jamindar. On the contrary, material on record shows that appellant is trespasser. The findings recorded by the appellate Court do not suffer from any perversity or illegality. In the case in hand, lower appellate Court on due appreciation of entire evidence, found that appellant could not prove his possession as Ex-Jamindar. On the contrary, material on record shows that appellant is trespasser. The findings recorded by the appellate Court do not suffer from any perversity or illegality. The application for amendment was uncalled for in view of S. 99 CPC. Perusal of trial Court’s judgment reveals that suit was not dismissed only on the ground of non-joinder of necessary party. Trial Court while dismissing the suit merely recorded a finding that the appellant could not prove his exclusive title and possession over the suit property. On due consideration, we do not find any perversity with the findings recorded by Courts below. In our considered opinion, this appeal does not give rise to any question of law much less any substantial question of law. 9. From the above discussion it seems to us that this appeal has no substance and as such deserves to be and is hereby dismissed with costs. 10. Ordered accordingly.