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2020 DIGILAW 386 (MP)

SHANTI BAI v. ARVIND KUMAR

2020-03-05

G.S.AHLUWALIA

body2020
ORDER/JUDGMENT – Shri K. N. Gupta, Senior Advocate with Shri R. S. Dhakad, Counsel for the appellants. Shri A. S. Bhadoriya, Counsel for the respondents. This Second Appeal under section 100 of Civil Procedure Code has been filed against the judgment and decree dated 12-7-2001 passed by IVth A.D.J., Vidisha in R.C.A. No. 13-A/1999 arising out of Judgment and Decree dated 30-10-1993 passed by 1st Additional Civil Judge Class 1 Vidisha in Civil Suit No. 43-A/1991. 2. The necessary facts for disposal of the present appeal in short are that the appellants are the legal representatives of the defendant Deendayal. The respondents are the legal heirs of plaintiffs. The suit was filed by Gulabhchand and his wife Smt. Ratanbai. The suit was filed for permanent injunction on the ground that the plaintiff No. 1 had purchased two plots situated in Ward No. 14, Municipal Council, Vidisha in the name of plaintiff No. 2 by a registered sale deed dated 19-4-1948. Both the plots are adjoining to each other and the total area of both the plots is 60X60 sq. ft. It was pleaded that although both the plots were purchased in the name of the plaintiff No. 1, however, the same are the joint properties of the plaintiffs. The plaintiffs decided to raise construction and accordingly building permission was also granted. But it was pleaded that on 7-7-1976, when the plaintiffs were raising construction, the defendant (Deendayal) started making objections, and apprehending the dispute, the plaintiffs stopped the construction and lateron found that the defendant Deendayal (the respondents are legal heirs of Late Deendayal) has affixed certain logs and is trying to encroach upon the land belonging to the plaintiffs. In nutshell, the dispute was the defendant is trying to encroach upon the disputed land belonging to the plaintiffs and therefore, a decree for permanent injunction was sought against the defendant, thereby restraining him from encroaching upon the plots No. 49 and 50 admeasuring 60X60 Sq. Ft. The plaint was amended and it was prayed that a decree for possession of area marked as A, B, E, F in plaint map be granted. 3. The defendant denied the plaint averments. 4. Ft. The plaint was amended and it was prayed that a decree for possession of area marked as A, B, E, F in plaint map be granted. 3. The defendant denied the plaint averments. 4. The trial Court after framing issues and recording evidence, decreed the suit filed by the plaintiffs and directed that the defendant shall not interfere with the peaceful possession of the plaintiffs and shall handover the vacant possession of the disputed area shown in the plaint map as well as shall pay mesne profits @ Rs. 100 per month from July, 1980 till vacant possession is handed over. 5. Being aggrieved by the Judgment and decree passed by the trial Court, the defendants/appellants, preferred an appeal, which too has been dismissed by the impugned Judgment and Decree passed by the Appellate Court. 6. The present appeal has been filed challenging the Judgment and Decree passed by the trial Court as well as the Appellate Court. 7. The appeal was admitted on the following Substantial Questions of Law : 1. Whether in the absence of agreed map of the disputed property, first appellate Court was justified in rejecting the application for spot inspection through Commissioner? 2. Whether in the absence of specific evidence as to mesne profits, decree for mesne profits at the rate of Rs. 100/- per month is justified? 8. Jagdish Prasad Pathak (D.W.1) has admitted that he has raised construction over the land which is in excess of the land which was purchased by him. Para 32 of his Cross examination reads as under : 9. In para 26, this witness has stated as under : 10. Thus, it is clear that it has been admitted by the defendants themselves, that they have raised construction over the land which is in excess of what was purchased by them. It is submitted by the Counsel for the appellant, that the appellant had filed an application before the Appellate Court under Order 26, Rule 9, Civil Procedure Code which has been wrongly rejected by the Appellate Court. It is further submitted that the mesne profits have been calculated without there being any basis for the same. 11. Heard the learned Counsel for the parties. 12. It is an admitted position that the defendants have encroached upon certain piece of land belonging to the plaintiffs/respondents. It is further submitted that the mesne profits have been calculated without there being any basis for the same. 11. Heard the learned Counsel for the parties. 12. It is an admitted position that the defendants have encroached upon certain piece of land belonging to the plaintiffs/respondents. The Suit was filed on 9-7-1976 and thus, it is clear that more than 44 long years have passed. The appellant/defendants have not explained as to why no application under Order 26, Rule 9, Civil Procedure Code was filed before the trial Court. Thus, this Court is of the considered opinion, that as the appellants have not given any explanation for not filing the application under Order 26, Rule 9, Civil Procedure Code at the earliest, further in view of the admission made by Jagdish Prasad Pathak (D.W.1), the Appellate Court did not commit any mistake by rejecting the application filed under Order 26, Rule 9, Civil Procedure Code. Furthermore, it would not be in the interest of justice to remand the matter to the Trial after 44 long years, specifically when no application under Order 26, Rule 9 of Civil Procedure Code was filed before the trial Court and further the said application was not filed along with memo of appeal and was filed only after the appeal remained pending for several years. 13. In view of the admission made by Jagdish Prasad Pathak (D.W.1), it is held that the trial Court did not commit any mistake by awarding mesne profits @ Rs. 100 per month from July, 1980 till the possession is delivered. 14. Both the Substantial Questions of Law are answered in negative. 15. Ex Consequenti, the Judgment and decree dated 12-7-2001 passed by IVth A.D.J., Vidisha in R.C.A. No. 13-A/1999 and Judgment and Decree dated 30-10-1993 passed by 1st Additional Civil Judge Class 1 Vidisha in Civil Suit No. 43-A/1991 are hereby affirmed. 16. The appeal fails and is hereby Dismissed.