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2025 DIGILAW 473 (MP)

Ramdayal S/O Devi Singh (Dead) v. State of M. P.

2025-08-08

G.S.AHLUWALIA

body2025
JUDGMENT : G. S. Ahluwalia, J. The second appeal under section 100 of CPC has been filed against the judgment and decree dated 07-10-2008, passed by First Additional District Judge, Gwalior in Civil Appeal No. 25A/2008, as well as the judgment and decree dated 03-03-2007, passed by Ninth Civil Judge, Class II, Gwalior in Civil Suit No. 357A/2007. 2. The appellants are the plaintiffs who have lost their case from both the courts below. 3. The facts necessary for disposal of the present appeal, in short, are that the original plaintiff filed a suit for declaration of title and permanent injunction on the ground that he is the owner and in possession of the property in dispute and defendants Nos. 1 and 2, on filmsy grounds, are out and out to disposes him from the disputed property. It was further stated that defendants Nos. 1 and 2 are, accordingly, manipulating the revenue records, whereas in respect of the disputed property, defendant No. 2 itself had given N.O.C. on 09-03-2000. Even a notice was given to the plaintiff by defendants for diversion. It was pleaded that defendants have registered the case against plaintiff on flimsy grounds and, taking advantage of the illiteracy of plaintiff, defendants are working contrary to the provisions of law. It was pleaded that on 02-01-2004, the defendants, along with some antisocial elements, came on the spot and extended a threat to the plaintiff that they would dispossess him. Accordingly, the suit was filed for declaration of title and permanent injunction. 4. Defendant No. 1 did not file any written statement. 5. Defendant No. 2 filed its written statement and claimed that the property was never in the ownership and possession of the plaintiff. The disputed property was acquired under the Nagar Sudhar Nyas Gwalior, Vinay Nagar, Sector No. 4, as per the provisions of Section 71 of Nagar Sudhar Nyas Adiniyam, and the said plot is under the scheme of G.D.A. The disputed property was already acquired in the year 1979. The suit has been filed on self-imaginary grounds, and no N.O.C. was ever issued to the plaintiff. If the state had given any notice for diversion purposes, then it is not within the knowledge of defendant No. 2. The plaintiff is not in possession of the property in dispute, therefore, there is no question of dispossessing him from the disputed property. If the state had given any notice for diversion purposes, then it is not within the knowledge of defendant No. 2. The plaintiff is not in possession of the property in dispute, therefore, there is no question of dispossessing him from the disputed property. On 02-01-2004, defendant No. 2 had not taken any action against the plaintiff. It was also pleaded that the land in dispute has already been acquired, and in the years 1979 and 1983, the compensation has already been paid to Manka and Shanti through defendant No. 1. Plaintiff has no right or title in the property in dispute. Since the name of the plaintiff was recorded without any order by the competent authority, therefore, by order dated 26-09-2005, the mutation of name of plaintiff in the revenue record has been set aside and under the orders of the collector, FIR has already been lodged against the Patwari and other persons, and Crime No. 408 under section 420, 467, 468 of IPC has been registered, and RCT No. 1254/2005 is pending before the Court of JMFC Gwalior. 6. The Trial Court, after framing issues and recording evidence, dismissed the claim of the plaintiff that he is the owner of the property in dispute and held that appellants/plaintiffs have failed to prove their title over the property in dispute. However, it was held that the plaintiffs are in possession of the property in dispute, and accordingly, it was held that although the plaintiffs have failed to prove their title over the property in dispute, but their possession shall not be disturbed without following due procedure of law. 7. Being aggrieved by the judgment and decree passed by the Trial Court, Appellants/Plaintiffs filed a civil appeal, which too has been dismissed by the impugned judgment and decree dated 07-10-2008. However, it is submitted that in an appeal filed by the plaintiff, an order, which is contrary to the interest of the plaintiff, has been passed, and the permanent injunction order, which was granted by the Trial Court, has been set aside. 8. However, it is submitted that in an appeal filed by the plaintiff, an order, which is contrary to the interest of the plaintiff, has been passed, and the permanent injunction order, which was granted by the Trial Court, has been set aside. 8. Challenging the judgment and decree dated 07-10-2008 passed by the Appellate Court, it is submitted by counsel for the appellant that it is well-established principle of law that in an appeal filed by the appellant, if the appellate court comes to a conclusion that the appeal has no substance, then it can dismiss the same but cannot pass an order which is contrary to the interest of the appellant and relied upon the judgment passed by the Supreme Court in the case of Banarsi and Others Vs. Ram Phal, reported in (2003) 9 SCC 606 , and Vaibhav Jain Vs. Hindustan Motors Private Limited , reported in (2025) 2 SCC 208 . 9. Heard on the question of admission. 10. The moot question for consideration is as to whether the Court, in exercise of power under Order 41 Rule 33 of CPC, can modify or set aside the decree passed by the Trial Court in an appeal filed by the party in whose favor a partial decree was passed by the Trial Court. The Supreme Court in the case of Vaibhav Jain (Supra) has held as under: "31. In respect of the power of an appellate court under Order 41 Rule 33 CPC, the Court, after observing that the true scope of the power could be best understood when read along with Rule 4. of Order 41, held: (Ram Phal case, SCC p. 619, para 15) “15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistent with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually, the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: first, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two relief prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favor of the respondent by the appellate court exercising power under Rule 33 of Order 41." (Emphasis supplied)" Therefore, if the facts and circumstances of the case are considered in the light of law laid down by the Supreme Court in the case of Vaibhav Jain (supra), this Court is of considered opinion that Appellate Court did not commit any mistake by recalling the permanent injunction order passed by the Trial Court. 11. Admittedly, both the Courts below have given concurrent findings of fact that the appellants/plaintiffs have failed to prove their ownership over the land in dispute. Even during the course of arguments, the aforesaid finding was not challenged by the counsel for appellants. Counsel for appellants has confined his argument only to the fact that once a permanent injunction order was already passed by the Trial Court in favor of the appellants/plaintiffs, then in absence of any cross-objection, the Appellate Court should not have set aside or recalled the decree for permanent injunction. 12. The Trial Court, after rejecting the claim of the plaintiff with regard to his ownership over the property in dispute had held that since the plaintiffs are in possession of the property in dispute, therefore, they shall not be dispossessed except by following the procedure as laid down in law. The Appellate Court has set aside this part of the permanent injunction, which was granted by the Trial Court. The Trial Court had not granted a blanket permanent injunction order and had merely stated that since the plaintiffs/appellants are in possession of the property in dispute, therefore, their possession shall not be disturbed except in accordance with law. Even if the said permanent injunction order has been recalled by the Appellate Court, still it will not cause any inconvenience to the appellants or will not cause any adverse effect on the right of the appellants to retain possession unless and until they are dispossessed in accordance with law. 13. Even if the said permanent injunction order has been recalled by the Appellate Court, still it will not cause any inconvenience to the appellants or will not cause any adverse effect on the right of the appellants to retain possession unless and until they are dispossessed in accordance with law. 13. Indian law respects possession, therefore, even if the permanent injunction, which was granted by the Trial Court, has been set aside by the Appellate Court, still defendants would not be in a position to forcibly take possession of the property in dispute, and they have to take possession by following the procedure as laid down in law. The Supreme Court in the case of Krishna Ram Mahale (Dead), By His LRs. Vs. Mrs. Shobha Venkat Rao , reported in (1989) 4 SCC 131 , has held as under:- "8. Mr. Tarkunde, learned Counsel for defendant 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh. This Court in that judgment cited with approval the well-known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy where it has been observed (p-208): "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court." Thus, it is clear that even if the person, who is in possession is an encroacher, still he cannot be dispossessed by the owner of the property except in accordance with law. 14. In the present case, it was the case of plaintiffs themselves that defendants have initiated proceedings for their dispossession. Thus, it is clear that even if the Appellate Court has set aside the permanent injunction order, which was issued by the Trial Court, still defendants would not be in a position to dispossess the appellants by show of muscle power. Therefore, the effect of permanent injunction order, which was issued by the Trial Court, and the effect of setting aside of said permanent injunction order by the Appellate Court is one and the same thing. 15. Under these circumstances, this court is of considered opinion that no useful purpose would be served by embarking upon an inquiry as to whether the Appellate Court should have set aside the permanent injunction order issued by the trial court or not. 16. There is an important aspect of the matter which cannot be lost sight of. The civil suit was filed by the original plaintiff on 06-01-2004. The suit was dismissed by the Trial Court by judgment and decree dated 03-03- 2008. The regular civil appeal was dismissed by judgment and decree dated 07-10-2008. This appeal is pending from the year 2009, as it was filed on 09- 02-2009. Although there is no temporary injunction order in the present appeal, still appellants have successfully protected their possession over the property in dispute. The regular civil appeal was dismissed by judgment and decree dated 07-10-2008. This appeal is pending from the year 2009, as it was filed on 09- 02-2009. Although there is no temporary injunction order in the present appeal, still appellants have successfully protected their possession over the property in dispute. Why defendants are not initiating the proceedings for dispossession of the appellants/plaintiffs is only known to the defendants, but one thing is clear that by not initiating the proceedings after the dismissal of the appeal, defendants are in fact trying to protect the interest of plaintiffs by allowing them to remain in possession of the property which is not in the ownership of appellants but it belongs to G.D.A. 17. Be that whatever it may. 18. Since the appellants can be dispossessed only in accordance with law, and defendants had already initiated the proceedings for recovery of possession, which was challenged by the original plaintiff by filing the suit in question, therefore, defendants are directed to re-initiate the proceedings, which were challenged by the original plaintiff in the civil suit. If the file of said proceeding is missing, then defendants are directed to initiate fresh proceedings and must ensure that the possession is taken back within a period of six months from today. 19. With aforesaid direction, the appeal is dismissed. 20. Office is directed to send a certified copy of this order to defendants Nos. 1 and 2 for necessary information and compliance. 21. Defendant No. 2 is also directed to submit the compliance report before the Principal Registrar of this Court on or before 20.02.2026.