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2021 DIGILAW 64 (MP)

Nagar Palika Vidisha v. Shamim Ur Rehman

2021-01-21

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With the consent of the parties, the matter is heard through video conferencing. 2. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/physical distancing in letter and spirit. 3. The present petition is being filed challenging the order dated 25.11.2019 passed by the First Appellate Court, whereby, the Misc. appeal filed by the petitioner against the order dated 16.11.2018 by the trial Court has been confirmed. 4. It is alleged that the respondents have filed a suit for declaration and permanent injunction in respect of the property situated in Patwari Halka No. 60 part of Survey No. 2173 Rakwa 0.052 Hectare out of which 0.022 Hectare is purchased property by way of a sale deed by the respondents No. 1 and 2 where they are having right over the property in question. An application under Order 39 Rule 1 and 2 of CPC was also filed along with the civil suit. It is submitted that the sale deed dated 22.10.2013 filed along with the civil suit to demonstrate their ownership. It is argued that on earlier occasion one Amzad Khan and Saleem Khan have filed a civil suit before the trial Court which was registered as Civil Suit No. 24-A/2006 with respect to the property of Survey No. 2173 Rakwa 0.052 Hectare part against the present petitioner. The Civil Suit was decided on merits and dismissed the suit by the judgment and decree dated 31.08.2007 (Annexure P/7). The appeal against the same was also dismissed vide order dated 05.07.2008 (Annexure P/8). It is argued that the civil suit has been filed concealing the aforesaid facts and as per the settled legal preposition that once the parities have already filed an earlier litigation with respect to the same property, second civil suit is not maintainable. It is submitted that the mutation in favour of the respondents have been cancelled, challenging the same, the respondents have filed an appeal before the Collector, wherein some documents were filed under Order 41 Rule 27 of CPC. It is submitted that the mutation in favour of the respondents have been cancelled, challenging the same, the respondents have filed an appeal before the Collector, wherein some documents were filed under Order 41 Rule 27 of CPC. By challenging the order dated 25.11.2019 and 16.11.2018, the present petition has been filed against the orders passed by the Courts' below. 5. The present petition has been filed on two grounds that the seller Saleem Khan was having no right over the property as the earlier suit filed by him with respect to the same property has been dismissed and the case has attained finality. It is a settled legal preposition that once the seller is having no right over the property, the subsequent purchaser does not get any right over the property in question. The aforesaid facts are not disputed in the litigation. The aforesaid aspect has not been considered by both the Courts' below. It is submitted that the respondents want to encroach over the property in question of the petitioner on basis of forged sale deed and the same is not permissible in the eyes of law. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of U.P. and others Vs. Ram Sukhi Devi reported in 2005(9) SCC 733 and in the case of Sewaram Vs. Union of India, reported in 1997 (1) M.P.W.N. 240. 6. Per contra, counsel for the respondents has opposed the petition and has contended that earlier civil suit was with respect to the part of the land having area of 0.010 hectare out of which the civil suit was only filed with respect to the toilet which is clearly reflected in the order sheets of the trial Court as well as the First Appellate Court. The second civil suit was filed by the respondents on a different land which was not the part of the previous litigation. The aforesaid findings given by the trial Court has duly affirmed by the appellate Court and both the Courts have found that the present suit is maintainable owing to the fact that land in question are different lands. Both the Courts have found that the plaintiff is not in possession of the property in question. The aforesaid findings given by the trial Court has duly affirmed by the appellate Court and both the Courts have found that the present suit is maintainable owing to the fact that land in question are different lands. Both the Courts have found that the plaintiff is not in possession of the property in question. He has read over the findings arrived at by the learned trial Court as well as First Appellate Court with respect to the disputed property in question. It is submitted that there are concurrent findings of both the Courts' below and the misc. petition under Article 227 of Constitution of India having supervisory jurisdiction has a limited scope to interference and only require to see that procedural irregularities, if committed by the learned trial Court while passing the order. He has relied upon the judgment in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 and has prayed for dismissal of the petition. 7. Heard learned counsel for the parties and perused the records. 8. From perusal of the record it is seen that there are concurrent findings of both the Courts' below with respect to the aspect that the property in question is a different property from that in the previous round of litigation. The earlier litigation was with respect to the only part of the property i.e. a toilet constructed over the property and the present litigation is with respect to some other part of the property in question. Even the one of the party to the litigation is different who was not party in the previous civil suit. In such circumstances, the petitioner has failed to demonstrate the aspect that the property in question is the same property for which the previous litigation was filed. Under the supervisory jurisdiction, the Court is having a limited jurisdiction. The aforesaid aspect was widely considered by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty (Supra), wherein the Hon'ble Court has held as under:- "(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." 9. Looking to the facts and circumstances of the case and considering the law laid down by the Hon'ble Supreme Court in the aforesaid case, no illegality is found in the orders passed by the trial Court as well as First Appellate Court. In such circumstances, the petition fails and is hereby dismissed.