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2014 DIGILAW 189 (MP)

Malkhan Singh v. Shiv Singh

2014-02-12

M.K.MUDGAL

body2014
ORDER 1. The respondent No.1/defendant has filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 29.4.2013 passed by I ADJ, Datia in Civil Appeal No.13A of 2012 confirming the judgment and decree dated 11.4.2011 passed by the Court of Civil Judge, Class II, Datia in Civil Suit No.2A of 2011 whereby, the suit filed by the plaintiff for permanent injunction in respect of the plot ad measuring 22×24 sq.ft. situated at Village Bahadur Pur, District Datia which hereinafter would be referred to as “disputed land”, was decreed. In this appeal, the appellants are referred to as “defendants” and the respondent no.1 as “plaintiff''. 2. The facts in brief of the plaint are that the disputed land was purchased by the plaintiff from previous owner Smt. Pyari Dulaiya vide registered sale deed dated 7.12.1961 and obtained possession thereof. The plaintiff applied for permission to raise construction over the disputed land and it was granted on 15.11.1977 but on starting construction, the defendants obstructed and tried to dispossess the plaintiff of the land, hence, the matter was reported by him to the state authorities but since nothing was done, hence, the plaintiff filed a suit against the defendants for issuing permanent injunction restraining them from interfering in the peaceful possession of the land by the plaintiff. 4. The defendants by filing the joint written statement denied the plaint averments stating that the plaintiff was not the owner of the disputed property and they are the owner of the property which was purchased by father of the defendant no.1 and Grandfather of defendant no.2 from one Narayan Das Bhrahman on 7.11.1961 and since then they have been in possession of the same. It was further stated that said Pyari Dulaiya was not having any title to sell the property in dispute. Even no permission was obtained by the plaintiff for raising construction from Gram panchayat concerned, hence, the suit filed by the plaintiff was not maintainable. Therefore, it was prayed that the suit be dismissed. 5. After framing of the five issue, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court decreed the suit of the plaintiff against the defendants/appellants as stated above. 6. Therefore, it was prayed that the suit be dismissed. 5. After framing of the five issue, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court decreed the suit of the plaintiff against the defendants/appellants as stated above. 6. Being aggrieved by the judgment and decree passed by learned trial Court, the defendants filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above. 7. Heard learned counsel for the appellants and perused the record. 8. The learned counsel for the appellants submits that the evidence produced on record by the defendants has not been considered properly by both the courts below and they have committed an error in decreeing the suit. The counsel placing reliance on paras 140, 146, 147 and 150 of the judgment in Liverpool and London S.P. And 1 Association Ltd. Vs. M.V.Sea Success I and Another (2004) 9 SCC 512 , has strenuously argued that the plaintiff had utterly failed to have proved the cause of action for filing the suit, owing to which, the suit could not have been decreed in his favour by both the courts below and the said issue was not properly dealt with by the courts. The counsel further pleaded that the plaintiff has pleaded in para 7 of the plaint that when he was digging the plinth of the disputed land for construction on 8.1.2011, he was prevented by the defendants from carrying out the construction on it. Consequently, he filed the suit for permanent injunction and the said allegations made in the plaint were specifically denied by the defendants. In spite of the said facts, no issue was framed by the learned trial Court, hence, findings recorded by both the Courts below deserve to be set-aside. 9. Controverting the submission made by the counsel for the appellant, the learned counsel for the respondent submits that both the courts have found title and possession of the land in dispute of the plaintiff proven and the defence story put forth by defendants/appellants was discarded. 9. Controverting the submission made by the counsel for the appellant, the learned counsel for the respondent submits that both the courts have found title and possession of the land in dispute of the plaintiff proven and the defence story put forth by defendants/appellants was discarded. Claiming that there is concurrence in the findings of the courts regarding title and possession of the plaintiff, the counsel further pleaded that the issue regarding cause of action raised on behalf of the appellant has no relevance as the plaintiff has not only pleaded cause of action for filing the suit in the plaint but also proved it by his evidence. Hence, no substantial question of law arises here for admission of the appeal and hence, it be dismissed. 10. Arguments were considered and the record was perused. The plaintiff/respondent filed the suit for permanent injunction restraining the defendants from obstructing the construction work he was carrying out over the disputed land on the basis of title and possession which had been acquired by him by registered sale deed dated 7.10.1961 Ex.P/1 from Mahila Pyari Dullaiya. Thereafter, he got the permission for construction from Gram Pancahayat vide Ex.P/4 and P/5 whereas, the defendants have claimed their title and possession on the basis of unregistered sale deed dated 7.11.1961 which was not scribed on the stamp paper also. On perusal of the judgments of both the courts below, it has been found that having considered the recorded evidence, both the courts have drawn the conclusion that the title and possession of the plaintiff on the disputed property have been found proven and the defendants have no title and possession of it. The findings of both the courts appear to be justified. 11. So far as the contention raised by the appellant's counsel, the cause of action for filing the suit has not been proved, is not correct as the plaintiff has not only pleaded in this regard specifically in para 7 of the plaint but has also deposed in para 4 of his statement. In para 140 of the aforesaid cited judgment of Liverpool and London S.P. And 1 Association Ltd (Supra), it has been held by the Suprme Court that a cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. In para 140 of the aforesaid cited judgment of Liverpool and London S.P. And 1 Association Ltd (Supra), it has been held by the Suprme Court that a cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. In the instant case as stated earlier, plaintiff/respondent has not only pleaded the cause of action but has also proved the same. Hence, the said judgment is of no help to the appellant. 12. The court has believed the said evidence. Although the issue was not framed on these pleadings, it has no effect on the merit of the findings of the judgments as both the parties have produced their evidence according to their pleadings. Apart from it, no objection was raised by the defendant about not framing the issue by the trial Court. 13. In view for the aforesaid facts and circumstances, this court comes to the conclusion that the findings of both the courts are concurrent and no substantial question of law is involved here. 14. Hence, the appeal being devoid of merit and substance deserves to be dismissed. Therefore, the appeal is hereby dismissed. 15. No order as to the costs. Let the decree be drawn up accordingly.