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Madhya Pradesh High Court · body

2013 DIGILAW 994 (MP)

Lallooram v. Anil Kumar Tiwari

2013-08-22

Alok Aradhe

body2013
JUDGMENT 1. This appeal is by the defendant, which was admitted by a Bench of this Court on the following substantial questions of law :- “(i) Whether the suit of the plaintiff claiming relief of permanent injunction only was maintainable without claiming relief of possession in view of their own pleading that the defendants have encroached and have taken possession of the suit land ? (ii) Whether the finding of the Courts below that the suit land was of the ownership of respondent, is legally sustainable ?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiffs filed a suit on the ground that the plaintiffs purchased the suit house situate on Khasra No.146/1 vide registered sale-deed dated 18.6.1982 from one Mithailal. It was further averred that the defendant’s house is situate on western side of the plaintiffs’ house. The defendant had purchased 750 sq. ft. of land, which is evident from the sale-deed executed in his favour. However, the defendant encroached the land admeasuring 59.7 sq.ft. situate on western side, which belongs to the plaintiffs. Accordingly, the plaintiffs’ filed a suit seeking the relief of mandatory injunction for removal of encroachment as well as for permanent injunction restraining the defendant from interfering with the possession of the plaintiffs over the suit land. 3. The defendant filed the written statement, in which the claim of the plaintiffs’ was denied and it was further pleaded that the defendant had raised construction on the land which belongs to him, and the suit of the plaintiffs’ is not maintainable as the plaintiffs’ have failed to claim the relief of declaration and possession. 4. The trial Court vide judgment and decree dated 22.11.1997 inter-alia held that the plaintiffs are owner of the suit property on the basis of sale-deed dated 30.12.1987 (Ex. P/1). It was further held that the plaintiffs’ witnesses have stated that the defendant had encroached the land admeasuring 59.7 sq. ft., which is situate on western side of the plaintiffs house which belongs to them. However, the defendant has not led any evidence in rebuttal to prove the plea that the construction raised by him is on the plot, which belongs to him. Accordingly, the suit was decreed. The aforesaid decree was affirmed by the lower appellate Court. 5. ft., which is situate on western side of the plaintiffs house which belongs to them. However, the defendant has not led any evidence in rebuttal to prove the plea that the construction raised by him is on the plot, which belongs to him. Accordingly, the suit was decreed. The aforesaid decree was affirmed by the lower appellate Court. 5. Learned counsel for the appellant submitted that the Courts below grossly erred in not appreciating that the suit of the plaintiffs’ was not maintainable as they did not seek the relief of declaration and possession. It was further submitted that the finding recorded by the Courts below that the suit land belongs to the plaintiffs is not legally sustainable. 6. I have considered the submissions made by learned counsel for the appellant and have perused the record. From perusal of the plaint, it is evident that the plaintiff sought the relief of mandatory injunction seeking removal of encroachment, which has been made by the defendant. The plaintiffs have produced the sale-deed dated 30.12.1987 Ex.P’/1, which has duly been proved. The plaintiffs witnesses have stated that the plaintiffs are the owner of the suit house situate on Khasra No.146/1 and the defendant has encroached the land admeasuring 59.7 sq. ft., which is situate on western side of the house of the plaintiffs. However, it is pertinent to mention here that no suggestions have been given in the cross-examination to plaintiffs witnesses that the defendant had raised construction on his own land. Besides that, the defendant has led no evidence to the prove the stand taken by him that he had raised construction on the land which belongs to him. 7. For the aforesaid mentioned reasons, the first substantial question of law does not arise for consideration in the facts of the case. The second substantial question of law is answered in affirmative and against the appellant. 8. In the result, the appeal fails and is hereby dismissed with costs.