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2017 DIGILAW 1049 (MP)

Bisanlal v. Kisnu

2017-10-03

VANDANA KASREKAR

body2017
ORDER 1. The appellants/defendants have filed the present appeal challenging the judgment and decree dated 21.4.2017 passed by 1st Additional District Judge, Chhindwara in Civil Appeal No.200001/2015 thereby affirming the judgment and decree dated 25.11.2014 passed by Civil Judge Class-I, Junnardeo, Distt. Chhindwara in Civil Suit No.18-A/2014 whereby the suit of the plaintiffs has been decreed and the counter, claim of the defendants has been dismissed. 2. The plaintiffs/respndents instituted a civil suit for declaration of title, permanent injunction and possession against the defendants in respect of land bearing Khasra No.26/2 having an area of 2.356 hectare situated at Village Aawariya, Tah. Junnardeo, Distt. Chhindwara. It has been averred in the plaint that fore father of the plaintiffs and defendants namely Bala owned land bearing Khasra No.7.547 hectare which, after death of Bala, divided between the parties. It is pleaded that in the said land, the plaintiffs obtained the land measuring 2.356 hectare which is Survey No.26/2 in the revenue record. It is averred that after partition, the parties were doing their agriculture work over their land. It is pleaded “that Sadaram co-sharer was residing with the father of the plaintiffs namely Buddu and died issueless and after his death, land of Sadaram was equally divided between Saddu who is father of the defendants No.1 and 2 and Buddu who is father of plaintiffs. It is further averred that Saddu obtained land of his share measuring area 2.357 hectare which was recorded in the revenue record as Survey No.26/1 which he possessed. It is also pleaded that defendant No.1, 6 and 7 by taking the advantages of absence of plaintiff No.1 as he had gone outside for doing his job, cultivating the disputed land forcefully on which the plaintiffs submitted an application before the Tahsildar, Damua and made demarcation on which it the illegal possession of defendants was found over the disputed land. As the said illegal possession did not remove by the defendants, hence the present suit has been filed by the plaintiff. 3. The defendants/appellants appeared and by filing written statement, has denied the plaint allegations, inter alia, contended that during life time of their father namely Saddu, the name of Saddu was recorded on the disputed land along with plaintiffs and after the death of Saddu, the defendants, being his legal heirs, were cultivating the disputed land. 3. The defendants/appellants appeared and by filing written statement, has denied the plaint allegations, inter alia, contended that during life time of their father namely Saddu, the name of Saddu was recorded on the disputed land along with plaintiffs and after the death of Saddu, the defendants, being his legal heirs, were cultivating the disputed land. It is also contended that by playing fraud, after the death of Saddu, the plaintiffs did not recorded the name of the defendant in the revenue record with respect to the disputed land. It is further alleged that on 8.1.1988 Saddu executed a registered Will in favour of “defendant No.1. A counter claim was also filed by the defendants with respect to the disputed land. In these premises, it is urged that the suit be dismissed. The trial Court after recording the evidence and framing the issues, has held that the plaintiffs/respondents had succeeded to prove their case, therefore, the trial Court has decreed the suit filed by the plaintiffs/respondents. Against the said judgment and decree the appellants/defendants have preferred the civil appeal before the first appellate Court. The first appellate Court while affirming the finding recorded by the trial Court, has dismissed the civil appeal vide its judgment and decree dated 21.4.2017. Being aggrieved by the said judgment and decree, the appellants/defendants have preferred the present second appeal. 4. Learned counsel for the appellants submits that the findings recorded by the two Courts below are perverse and illegal. It is also contended that the Courts below while decreeing the suit of the plaintiffs/respondents have overlooked the legal and material aspects of the case. The Courts below failed to see that the appellants/defendants are in possession of the disputed land. It is further contended that the Courts below have given undue advantage to the oral evidence led by the plaintiffs and ignored the documentary evidence produced by the defendants/appellants. Learned counsel further contends that Courts below have committed gross error of law in rejecting the counter-claim of the appellants/defendants. Thus, he prays that this appeal may be allowed. 5. I have gone through the judgment passed by the trial Court as well as appellate Court. Both these judgments are well reasoned and are based on due appreciation of oral as well as documentary evidence. Both the Courts below found that the appellants/ defendants were unable to prove their case by filing counter-claim. 5. I have gone through the judgment passed by the trial Court as well as appellate Court. Both these judgments are well reasoned and are based on due appreciation of oral as well as documentary evidence. Both the Courts below found that the appellants/ defendants were unable to prove their case by filing counter-claim. The concurrent findings recorded by both the Courts below are findings of facts which do not require any interference by exercising the powers under section 100 of the Code of Civil Procedure. Learned counsel for the appellants has failed to show that how the findings of facts recorded by the Courts below are illegal, perverse or based on no evidence. Thus, no substantial question of law arises for consideration in this appeal. The Supreme Court in number of cases has held that in exercise of powers under section 100 of Code of civil procedure can interfere with the finding of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain v. Abdul Majeed and others [(2011)7 SCC 189], Union of India v. Ibrahim Uddin [ 2012(8) SCC 148 ] and Vishwanath Agrawal v. Sarla Vishwanath Agrawal [ (2012)7 SCC 288 ]. 6. For the aforesaid reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed.