Laxminarayan vs Bhagwansingh And Others.

The appellant/defendant No.1 has filed the present appeal being aggrieved by judgment and decree dated 25.4.2017 passed by Additional District Judge, Narsinghgarh, District Rajgarh where by the decree of permanent injunction has been granted to the respondent No.1/plaintiff.

Short facts of the case are as under :

(i) Respondent No.1 being the plaintiff filed the suit against the defendants for the decree of title and permanent injunction. According to the plaintiff, land bearing Survey Nos. 81, 82/1/1 and 113 area 0.228, 0.361 and 0.632 Hect. is in dispute between him and defendant No.1. The said land is an ancestral property and the plaintiff has got the same in partition and at present he is cultivating the same, but the defendant No.1 by taking the advantage of his old age, is trying to dispossess him forcibly. Defendant No.1 has already filed Civil Suit No. 85A/2008 for the relief of declaration of title and permanent injunction, which has been dismissed vide judgment dated 11.3.2010 and despite that, on 7.6.2010 he came on the field and tried to take forcible possession. The plaintiff lodged the Police report on 9.6.2010, but no action was taken, hence he filed the civil suit.

(ii) Defendants No.1 and 2 filed their written statement by submitting that they preferred first appeal against the judgment dated 11.3.2010. They have also pleaded that they are in possession over the land in question and specifically denied the allegation/pleading in respect of forcible dispossession of the plaintiff by them.

(iii) After filing the written statement, defendants No.1 and 2 have stopped appearing in the suit and accordingly, they were proceeded ex-parte. The plaintiff examined his witnesses and got exhibited the documents.

(iv) Learned trial Court after appreciating the evidence has answered the Issue No.1 against the plaintiff as he has failed to examine neighbouring farmer to prove forcibly dispossession on 7.6.2010. Vide judgement and decree dated 18.10.2012, learned trial Court dismissed the suit.

(v) Being aggrieved by the aforesaid dismissal of the suit, the plaintiff preferred first appeal. Vide judgment and decree dated 25.4.2017, learned first appellate Court has granted the relief of permanent injunction in favour of the plaintiff, hence the present second appeal before this Court.

Learned counsel appearing for the appellant submits that the first appellate Court has granted the relief of permanent injunction only on the ground that defendants No.1 and 2 were proceeded ex-parte and the evidence of plaintiff remained unrebutted. The plaintiff was required to prove his case by way of his own evidence. He cannot take advantage of weakness of defendants. Since there was no forcible dispossession by the defendants, therefore, learned trial Court has rightly dismissed the suit, but the learned first appellate Court has wrongly granted the decree of permanent injunction in favour of the plaintiff. The appellant has suggested following substantial questions of law :

"A. Whether the finding recorded by the courts below are perverse and contrary to the evidence available on record?

B. Whether the fact and circumstance of the learned lower appellate court erred reversing the trial court judgment and decree?"

I have heard the learned counsel appearing for the appellant at length and perused the record.

The plaintiff's title in respect of the suit land is not in dispute. Defendants filed Civil Suit No.85A/2008 for the relief of declaration and permanent injunction. They have failed to prove their title as well as possession over the suit land. In the said suit, the plaintiff was arrayed as defendant No.1. Said suit had attained finality after the dismissal of appeal preferred against the judgment and decree passed by the trial Court. The possession of plaintiff is also not in dispute. Defendants No.1 and 2 have pleaded that they never tried to dispossess the plaintiff by using force. The plaintiff examined the witnesses and in support of the relief of permanent injunction, the witnesses were not cross-examined by the defendants, therefore, the evidence adduced by the plaintiff remained unrebutted. Since the ownership and possession of the plaintiff is not in dispute, no prejudice is going to be caused to the defendants No.1 and 2 by the relief of permanent injunction as they have already lost in their suit.

In view of the above, no interference is called for with the impugned judgment and decree passed by learned first appellate Court. No question of law much less substantial question of law is involved in this appeal.

Consequently, this appeal fails and is hereby dismissed.

No order as to costs.