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2016 DIGILAW 508 (MP)

Harkunwar Bai v. Kalabai

2016-06-27

ANAND PATHAK

body2016
JUDGMENT 1. With the consent of the parties heard on admission. 2. The appeal under section 100 CPC has been preferred by the appellant/defendant No.1 against the judgment and decree dated 12.4.2006 passed by the Ist Upper District Judge, Ashoknagar in Civil Appeal No.3-A/2006 confirming the judgment and decree dated 15.2.2006 passed by the Civil Judge Class I, Ashoknagar, District Guna, in Civil Suit No.63-A/2005. 3. The respondents No.1-Smt. Kalabai and 2-Smt. Ramrati Bai are real sisters of one Hukum Singh, who was the title holder and possessor of the suit property fall in survey No.874 area 0.094 hectare. The plaintiffs have filed suit for declaration and injunction in respect of the suit property on the basis of their relation as (real sisters) with the Hukum Singh. Hukum Singh had died on 17.7.2005 without leaving any family member except her two sisters i.e. (plaintiffs). 4. According to the plaintiffs, defendant No.1-Harkunwar Bai was interfering into their peaceful possession over the suit property and are trying to encroach upon the land in question. 5. Appellant/defendant No.1-Harkunwar Bai filed written-statement and counter-claim and tried to establish her case on the basis of a Will dated 24.5.2005, which according to her has devolved the property to her solely, therefore, by filing the counter-claim, she sought declaration and injunction in respect of the suit property. 6. The trial Court has framed issues. Parties have adduced their evidence; oral as well as documentary in the trial Court. 7. The trial Court found the plaintiffs as title holder and possessor of the suit property and came to the conclusion that appellant/defendant No.1-Har Kunwar Bai was interfering into the peaceful possession of the plaintiffs. 8. The trial Court in para 12 to 20 of the judgment has categorically scrutinized the evidence led by the parties and on the basis of the same has found the claim of defendant No.1 as nugatory. 9. Being aggrieved by the judgment passed by the trial Court dated 15.2.2006 in Civil Suit No.63-A/2005, defendant No.1 preferred First Appeal under section 96 of the Code of Civil Procedure and tried to dent the findings given by the trial Court. According to defendant No.1, she was the rightful owner, title holder and possessor of the suit property on the basis of some references of the cross-examination of plaintiff No.2 (PW-1) about the factum of possession in her favour in respect of the suit property. According to defendant No.1, she was the rightful owner, title holder and possessor of the suit property on the basis of some references of the cross-examination of plaintiff No.2 (PW-1) about the factum of possession in her favour in respect of the suit property. 10. The appellate Court in para-16 of the impugned judgment and decree dated 12.4.2006 has given the findings about the factum of possession in favour of the plaintiffs by giving the conclusion that the factum of the possession at the time of filing of the suit would be conclusive and at the time of filing of the suit, the plaintiffs were in possession of the suit property, therefore, any subsequent attempt at the behest of defendant No.1 for gaining possession would be of no consequence. 11. The first appellate Court kept the findings and judgment and decree of the trial Court intact. 12. Here, under second appeal, the appellant/defendant No.1 is again making an attempt to dislodge the findings given by the Courts below and has asserted by filing an application under Order XLI rule 27 CPC (I.A. No.1450/2014) that defendant No.1 is not in possession of the suit property because according to the present appellant/defendant No.1, the plaintiffs have initiated execution proceedings dated 21.2.2006 against defendant No.1 and has asserted that the plaintiffs themselves admit the factum regarding possession in her favour in the execution proceedings. 13. The appeal was preferred by the appellant/defendant No.1 on 25.4.2006 and the documents which the present appellant intended to bring on record (document is dated 21.2.2006) through an application under Order XLI rule 27 CPC was of 23.3.2014. Meaning thereby, the present appellant must be having knowledge about pendency of the execution proceedings initiated against her at the time of institution of appeal and even if, she did not have any inkling about the pendency and execution proceedings even then, the application under Order XLI rule 27 CPC was preferred by her on 23.3.2014 i.e., almost after eight years from the date of knowledge. Therefore, the object and purpose of filing of the application under Order XLI rule 27 CPC is defeated and vigor of the submissions is diluted by the delay caused by the appellant/defendant No.1 in bringing the said facts on record. 14. Therefore, the object and purpose of filing of the application under Order XLI rule 27 CPC is defeated and vigor of the submissions is diluted by the delay caused by the appellant/defendant No.1 in bringing the said facts on record. 14. Even otherwise, at the time of filing of the suit, the plaintiffs were in possession of the suit property and they have successfully established this fact through oral as well as documentary evidence in the trial Court. The appellate Court after properly scrutinizing the evidence led by the plaintiffs, passed the impugned judgment and decree dated 12.4.2016 in Civil Appeal No.3-A/2006, affirming the trial Court's judgment and decree and has taken care of subsequent developments in respect of possession and given its finding. 15. Being the findings of the facts and concurrently held by the Courts below against the appellant/defendant No.1, no case for interference in this jurisdiction under section 100 CPC is made out. No substantial question of law is involved in the present case. 16. The appellant to support his case has relied upon the judgment passed by the Hon'ble apex Court in the matter of Chintaman Namdev Patil (D) v. Sukhdev Namdev Patil and another, as reported in 2016 SAR (Civil) 28, Rajasthan State TPT Corpn. and another v. Bajrang Lal, as reported in 2014 SAR (Civil) 464 and in the matter of Pooran v. Sakuntala and another, as reported in 2003 (II) MPJR SN 11 and in the matter of Vinod Kumar v. Gangadhar, as reported in 2014(3) JLJ 306 (SC)=2015(II) MPJR 165 and also in the matter of Moolchand v. Radha Sharan and another, as reported in 2006(II) MPWN 139 . 17. The aforesaid judgments cited by the appellant/defendant No.1 does not further the cause of the appellant in any manner and does not help the appellant in the present case because of the factual differentiation. In fact ,the facts of the appellant move in different realm. 18. Considering the findings so given by the Courts below, this appeal does not involve any substantial question of law. 19. The findings so recorded by the Courts below are based on proper appreciation of evidence on record. No substantial question of law, much less question of law arises in this appeal, warranting interference under section 100 CPC. 20. Thus, this appeal fails and is hereby dismissed.