Thursday 30 May 2019
Sunday 12 May 2019
MRS. GAYATRI SHARMA, Aged about 70 years, Wd/o Late Mr. Gopal Prasad Sharma, Occupation – Housewife, R/o Infront of Police Station, Mangalwara Market, Piparia, District – Hoshangabad – 461 775 (Madhya Pradesh)
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANTS/ : MRS. GAYATRI SHARMA
VERSUS
RESPONDENT/ : RAMA KANT RATNER
I N D E X
|
Sno
|
Description of documents
|
Annexure
|
Pages
|
|
1.
|
Index
|
|
1 & 2
|
|
2.
|
Chronology
of events
|
|
3 & 4
|
|
3.
|
Memo of
appeal
|
|
5 TO 14
|
|
4.
|
List of
Documents
|
|
15 & 16
|
|
5.
|
Copy of
the legal notice dated 05.05.2008
|
A-1
|
17
|
|
6.
|
Copy of
the plaint dated 23.07.2008 alongwith its plaint map
|
A-2
|
|
|
7.
|
Copy of
the Written Statement dated 09.10.1996 Vide Exhibit P-26 filed by the father of plaintiff Mool Chaand
Ratner (In previous suit)
|
A-3
|
|
|
8.
|
Copy of
the registered sale deed dated 29.03.1995 Exhibit P-1
|
A-4
|
|
|
9.
|
Copy of
the written statement dated 05.11.2008
|
A-5
|
|
|
10.
|
Copy of
application under Order 26, Rule read with Section 151 CPC
|
A-6
|
|
|
11.
|
Photographs
of suit property
|
A-7
|
|
|
12.
|
Copy of
the deposition sheet of PW- Om Prakash Chouhan
|
A-8
|
|
|
13.
|
Copy of
the Judgment and Decree dated 21.12.2013 passed by the Court of Civil Judge,
Class-II, Mrs. Kiran Tumrachi Dhurve, Piparia,
District – Hoshangabad (Madhya Pradesh) in the matter of Rama Kant Ratner V/s Gopal Prasad Sharma, in
the file of Regular Civil Suit No. 7-A of 2009
|
A-9
|
|
|
14.
|
Copy of
the application dated 17.02.2017 under Order 6, Rule 17 CPC
|
A-10
|
|
|
15.
|
Copy of
the reply dated 22.04.2017 under Order 6, Rule 17 CPC
|
A-11
|
|
|
16.
|
Copy of
the application dated 22.04.2017 under Section 65 of Evidence Act
|
A-12
|
|
|
17.
|
Copy of
the reply dated 22.04.2017 under Section 65 of Evidence Act
|
A-13
|
|
|
18.
|
Copy of
the application dated 24.01.2017 under Order 41, Rule 27 CPC
|
A-14
|
|
|
19.
|
Copy of
the reply under Order 41, Rule 27 CPC under Section 65 of Evidence Act
|
A-15
|
|
|
20.
|
Certified
Copy of the Judgment and Decree dated
29.04.2019 passed by the Court of IInd Additional District Judge, Mrs. Kirti
Kashyap, Piparia, District – Hoshangabad (Madhya Pradesh) in the
matter of Rama Kant Ratner V/s Gopal
Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since Deceased) Through LR’s Mrs.
Gayatri Sharma & Ors., in the file of Regular Civil Appeal No. 3-A of
2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }
|
A-16
|
|
|
21.
|
Application under Order 41, Rule 5 Read with Section 151 of the Code
of Civil Procedure, 1908 For Grant of Stay alongwith affidavit
|
|
|
|
22.
|
Vakalatnama
|
|
|
|
23.
|
Court Fee
|
|
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANTS
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANTS/ : MRS. GAYATRI SHARMA
VERSUS
RESPONDENT/ :
RAMA KANT RATNER
CHRONOLOGY OF EVENTS
|
S.No
|
Date
|
Events
|
|
1.
|
29.03.1995
|
The case
of Plaintiff he purchase the suit house /situated at Plot No. 38,
ad-measuring 550 Square Feet, Diversion Khasra No. 29/01, Nagar Piparia,
Radha Krishnan Ward, Tahsil - Piparia, District – Hoshangabad – 461 881
(Madhya Pradesh) over which certain part is having Kachha & certain part is having Pacca Construction was made, having been allegedly purchased the
same through registered sale deed dated 29.03.1995 Exhibit P-1 by the father the plaintiff (Late Mr. Mool
Chand Ratner) from father of sole deceased defendant (Late Mr. Awadh Bihari
Sharma).
|
|
2.
|
23.07.2008
|
Respondent/
plaintiff had filed a suit on 23.07.2008 for Ejectment and arrears of rent to
the tune of Rs. 15,000/- before the trial Court against deceased defendant
under the provisions of Section 12 (1) (a), (b), (c), & (e) of the Madhya
Pradesh Accommodation Control Act, 1961.
|
|
3.
|
21.12.2013
|
The Trial
Court was pleased to kind enough in dismissing the suit Vide Judgment and
Decree dated 21.12.2013 passed by the Court of Civil Judge, Class-II, Mrs.
Kiran Tumrachi Dhurve, Piparia, District
– Hoshangabad (Madhya Pradesh) in the matter of Rama
Kant Ratner V/s Gopal Prasad Sharma, in the file of Regular Civil Suit
No. 7-A of 2009
|
|
4.
|
14.02.2014
|
Feeling
aggrieved and having been dissatisfied by the aforesaid Decree, the plaintiff
preferred a Regular Civil Appeal on 14.02.2014 under the provisions of
Section 96 of the Code of Civil Procedure, 1908.
|
|
5.
|
29.04.2019
|
The Court
below by mis-interpreting the true position of Law reversed the Judgment and
Decree of the Trial Court Vide Judgment and
Decree dated 29.04.2019 passed by the Court of IInd Additional District
Judge, Mrs. Kirti Kashyap, Piparia, District – Hoshangabad (Madhya
Pradesh) in the matter of Rama Kant Ratner
V/s Gopal Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since Deceased) Through
LR’s Mrs. Gayatri Sharma & Ors., in the file of Regular Civil Appeal No.
3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }
|
|
6.
|
|
Appellant filed a Second Appeal Under the provisions of
Section 100 Of The Code Of Civil Procedure, 1908 (No. 5 Of 1908) before the
Hon’ble High Court Of Madhya Pradesh Principal Seat
At Jabalpur
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANTS
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANT/ : 1. MRS. GAYATRI SHARMA, Aged about 70
Defendants years,
Wd/o Late Mr. Gopal Prasad Sharma, Occupation – Housewife,
2. SACHIN
SHARMA, Aged about 36 years, S/o Late Mr. Gopal Prasad Sharma, Occupation -
Both R/o Infront of Police Station, Mangalwara Market, Piparia,
District – Hoshangabad – 461 775 (Madhya
Pradesh)
3. ASHISH
SHARMA, Aged about 42 years, S/o Late Mr. Gopal Prasad Sharma, Occupation - R/o 4 No. Forest Colony, Mahadev
Road, Pachmarhi, Tahsil - Piparia, District – Hoshangabad – 461 881 (Madhya
Pradesh)
4. MRS.
BHARATI SHARMA, Aged about __
years, D/o Late Mr. Gopal Prasad Sharma, W/o Mr. Anil
Mehta, Occupation – Housewife, R/o Village Tumada, Tahsil - Huzur, District – Bhopal
– 466 001 (Madhya Pradesh)
5. MRS.
AARATI SHARMA, Aged about __
years, D/o Late Mr. Gopal Prasad Sharma, W/o Mr. Surendra
Sharma, Occupation – Housewife, R/o Teachers Colony, Near Bright Career School,
District – Vidisha – 464 001 (Madhya
Pradesh)
VERSUS
RESPONDENT/ : RAMA KANT RATNER,
Aged about 60
Plaintiff years, S/o
Mr. Mool Chand Ratner,
Occupation – Shopkeeper, R/o Kasturba Ward, Piparia,
District – Hoshangabad – 461 775 (Madhya
Pradesh)
SECOND APPEAL UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908 (NO. 5 OF 1908)
[Claim in appeal valued at Rs. 6,000/- for Ejectment (being 12 months’
rent @ Rs.500/-per month), and Rs. 15,000/- for arrers of rent (being 24
months’ rent @ Rs.500/-per month), total valued at Rs. 21,000/- and Court fee
for a sum of Rs. 2,740/- is being paid herewith accordingly as before the
Courts below]
Civil Suit filed on 23.07.2008
Being aggrieved by the Judgment and
Decree dated 29.04.2019 passed by the Court of IInd Additional District Judge,
Mrs. Kirti Kashyap, Piparia, District – Hoshangabad (Madhya
Pradesh) in the matter of Rama Kant Ratner
V/s Gopal Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since Deceased) Through
LR’s Mrs. Gayatri Sharma & Ors., in the file of Regular Civil Appeal No.
3-A of 2014 [Filing No. 23370-400086-2014] and {CNR
No. MP0505-000043-2014 }, arising
out of Judgment and Decree dated 21.12.2013 passed by the Court of Civil Judge,
Class-II, Mrs. Kiran Tumrachi Dhurve, Piparia, District
– Hoshangabad (Madhya Pradesh) in the matter of Rama
Kant Ratner V/s Gopal Prasad Sharma, in the file of Regular Civil Suit
No. 7-A of 2009, the appellants / defendants named above most humbly and
respectfully begs to file the instant second appeal on following facts, grounds
and substantial question of law, amongst the others :
Material facts of the case :
1.
Respondent/ plaintiff had filed a suit on
23.07.2008 for Ejectment and arrears of rent to the tune of Rs. 15,000/- before
the trial Court against deceased defendant under the provisions of Section 12
(1) (a), (b), (c), & (e) of the Madhya Pradesh Accommodation Control Act,
1961.
2.
The case of Plaintiff he purchase the suit
house /situated at Plot No. 38, ad-measuring 550 Square Feet, Diversion Khasra
No. 29/01, Nagar Piparia, Radha Krishnan Ward, Tahsil - Piparia, District –
Hoshangabad – 461 881 (Madhya Pradesh) over which certain part is having Kachha & certain part is having Pacca Construction was made, having been
allegedly purchased the same through registered sale deed dated 29.03.1995 Exhibit P-1 by the father the plaintiff
(Late Mr. Mool Chand Ratner) from father of sole deceased defendant (Late Mr.
Awadh Bihari Sharma). It is also alleged by the plaintiff that he required the
suit accommodation for residence. The plaintiff also alleged that he has no
reasonable suitable alternative accommodation of his own in the city or town
concerned. Plaintiff served with the defendant with legal notice dated
05.05.2008 through his Counsel Mr. R. S. Raghuwanshi, Advocate. Copy of the
legal notice dated 05.05.2008 is filed herewith and marked as Annexure A-1. Copy of the plaint
dated 23.07.2008 alongwith its plaint map is filed herewith and marked as Annexure A-2.
3.
The defendant apart from the admitted fact specifically
denied each and every allegations leveled in the plaint averments. It is case
pleaded by him that he is residing in the suit property as true lawful owner. The
registered sale deed dated 29.03.1995 Exhibit
P-1 has already been challenged by way of separate suit filed by deceased
brother of defendant, forming subject matter of Civil Suit No. 17-A of 2009
dismissed vide Judgment and Decree dated 31.03.2011. Copy of the Written
Statement dated 09.10.1996 Vide Exhibit
P-26 filed by the father of plaintiff Mool Chaand Ratner, is filed
herewith and marked as Annexure A-3.
Thereafter a First Appeal No. 391 of 2011 under the provisions of Section 96 of
the Code of Civil Procedure, 1908 have been preferred by him before this Hon’ble
High Court. The defendant is in peaceful possession of the subjected property
alongwith his elder brother and sister Krishna Bai prior to registered sale
deed dated 29.03.1995 Exhibit P-1.
Copy of the registered sale deed dated 29.03.1995 Exhibit P-1 is filed herewith and marked as Annexure A-4. After the death of
elder brother, his son Manohar Lal became the joint owner and possession holder
of the same. The instant suit is hit by
the provisions of mis-joinder and/or non-joinder of necessary party. Plaintiff
has deliberately not arrayed them in this suit as co-defendant. The plaint has
been cleverly drafted so as to grab the suit property by taking advantage of provisions
of Madhya Pradesh Accommodation Control Act, 1961 and the same is not maintainable
in the eye of Law. Defendant also prayed for compensation and cost of the suit.
Copy of the written statement dated 05.11.2008 is filed herewith and marked as Annexure A-5. Defendant also
filed an application under Order 26, Rule read with Section 151 CPC. Copy of
application under Order 26, Rule read with Section 151 CPC is filed herewith
and marked as Annexure A-6.
Photographs of suit property is filed herewith and collectively marked as Annexure A-7. Copy of the
deposition sheet of PW- Om Praksh Chouhan is filed herewith and marked as Annexure A-8.
4.
The Trial Court was pleased to kind enough in
dismissing the suit. Copy of the Judgment and Decree dated 21.12.2013 passed by
the Court of Civil Judge, Class-II, Mrs. Kiran Tumrachi Dhurve, Piparia, District – Hoshangabad (Madhya
Pradesh) in the matter of Rama Kant Ratner
V/s Gopal Prasad Sharma, in the file of Regular Civil Suit No. 7-A of 2009 is
filed herewith and marked as Annexure
A-9. Feeling aggrieved and having been dissatisfied by the aforesaid
Decree, the plaintiff preferred a Regular Civil Appeal on 14.02.2014 under the
provisions of Section 96 of the Code of Civil Procedure, 1908. The Court below
by mis-interpreting the true position of Law reversed the Judgment and Decree
of the Trial Court. Plaintiff also filed
an application on 17.02.2017 under Order 6, Rule 17 CPC. Copy of the
application dated 17.02.2017 under Order 6, Rule 17 CPC is filed herewith and
marked as Annexure A-10.
Defendant filed their reply on 22.04.2017. Copy of the reply dated 22.04.2017 under
Order 6, Rule 17 CPC is filed herewith and marked as Annexure A-11. Plaintiff also filed an application on 22.04.2017
under Section 65 of Evidence Act. Copy of the application dated 22.04.2017
under Section 65 of Evidence Act is filed herewith and marked as Annexure A-12. Defendant filed
their reply on 22.04.2017. Copy of the reply dated 22.04.2017 under Section 65
of Evidence Act is filed herewith and marked as Annexure A-13. Plaintiff also filed an application on 24.01.2017
under Order 41, Rule 27 CPC. Copy of the application dated 24.01.2017 under
Order 41, Rule 27 CPC is filed herewith and marked as Annexure A-14. Defendant
filed their reply. Copy of the reply under Order 41, Rule 27 CPC under Section
65 of Evidence Act is filed herewith and marked as Annexure A-15. Certified Copy of the Judgment and Decree dated 29.04.2019 passed by the Court of IInd
Additional District Judge, Mrs. Kirti Kashyap, Piparia, District –
Hoshangabad (Madhya Pradesh) in the matter of Rama
Kant Ratner V/s Gopal Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since
Deceased) Through LR’s Mrs. Gayatri Sharma & Ors., in the file of Regular
Civil Appeal No. 3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 } is filed herewith and marked as Annexure A-16. Hence this Second
Appeal Under the provisions of Section 100 Of The Code Of Civil Procedure, 1908
(No. 5 Of 1908) on following grounds amongst the others :
Grounds Urged :
A.
The Court below failed to consider that Exhibit P-24 is the Written
Statement filed by the father of plaintiff Mool Chand Ratner in a previous
suit, in which he did not even whisper of alleged landlord –tenant
relationship.
B.
The Court below committed grave error and irregularity
in not considering that that there was no denial of the averments made in
written statement filed by the deceased sole defendant and that amounts to
admission under the Law.
C.
The Court below ought to have considered that
the registered sale deed dated 29.03.1995 Exhibit
P-1 has already been challenged by way of separate suit filed by
deceased brother of defendant, forming subject matter of Civil Suit No. 17-A of
2009 dismissed vide Judgment and Decree dated 31.03.2011 and in the case in
hand it has not been duly and genuinely proved.
D.
The Court below committed error Law in not
considering that even the case of plaintiff is considered to be gospel truth
then the position of deceased sole defendant was that of Licensee and/ or
permissive possession.
E.
The Two Courts below wrongly held Issue No. 7
to 9 in favour of plaintiff. The Cross –Objection filed by the appellant ought
to have been allowed by the Court below.
F.
The
Court below did applied its judicial mind taking note of the fact that the
father of plaintiff Mool Chand Ratner and father of sole deceased defendant Late
Awadh Bihari Sharma, were having Active confidence between each other therefore
the alleged registered sale deed
dated 29.03.1995 Exhibit P-1
should have looked into according to this aspect.
G.
Because
the 1st Appellate Court committed the error of law in not deciding the
application under Order 6 Rule 17 CPC.
H.
Because
the 1st Appellate Court committed the error of law in not pronouncing the
judgment and decree on question of title.
I.
Because the Court below has committed grave
error and illegality in not following the principals of Order 8 Rule 7 CPC and
Order 8 Rule 9 CPC which postulate that whenever defendant by filing a written
statement takes a plea of new fact, the plaintiff can suitably answer the new
plea by submitting the rejoinder with the leave of Court. In the case in hand
plaintiff failed to exercise his right, therefore the adverse inference could
be drawn against him regarding alleged registered
sale deed dated 29.03.1995 Exhibit
P-1.
J.
Because
the Court below failed to consider that plaint and/ or plaint map is not in
accordance with the registered sale deed dated 29.03.1995 Exhibit P-1 therefore the suit should have been dismissed
for want of clear demarcation of the suit property, whereas the suit house is
somewhat different at existing site.
K.
The
sole deceased defendant invested a huze amount in the development of the suit
property and in case the plaintiff, is owner thereof (though denied) should
have raised objection at the time making construction, but neither the father
of plaintiff nor the plaintiff had raised any voice when construction was made
by deceased defendant.
L.
Because
the Court below ought to have considered that father of plaintiff Mool Chand
Ratner did not plead in his written statement about the tenancy of the deceased
defendant and his father Awadh Bihari Sharma in earlier round of litigation.
This fact was confirmed by the testimony of PW- Om Prakash Chouhan at Para 11.
Therefore alleged tenancy is nothing but cock and bull story. Plaintiff is
therefore estopped from taking a new plea under the principal of estopple.
M. Because the Courts
below were erred in Law when plaintiff failed to cross examine the deceased
defendant & his witness, it was burdened duty of plaintiff to call the witness
under the provisions of Order 19, Rule 2 CPC.
N. Because it is
settled principle of law that in order to prove that the possession of any
person in any immovable property is legal, it is necessary for such person to
prove prima facie that he is either the owner of such property or is in possession
as a lawful tenant or is in its permissive possession with the express of
consent of its true owner.
O. That the learned Court below have erred in questions of
law as well as of facts.
P. That the learned Court below have not been provided an
opportunity of hearing to the appellant herein. Even the averments made by him
in the written statement have not been dealt with by the learned courts below.
Q.
That the findings of the learned Court below
are liable to be reversed as they are based on imagination, incorrect and wrong
appreciation of facts.
R.
That the Judgment of the learned Court below
is erroneous and deserves to be reversed as it is based on mere surmises and
misconception of facts and law.
S.
The Judgment and Decree of the court below is
perverse, malafide and not sustainable in law as the case had to be posted for
the pronouncement of Judgment after conclusion of final arguments on
30.03.2019. The Order sheet dated 30.03.2019 was not written in the presence of
learned Counsel for appellant. After pronouncement of Judgment on 29.04.2019
the matter was posted on 02.05.2019 and the Decree was drawn up on 02.05.2019.
The Court below pronounced the judgment on the wish and whim and in accordance
with the choice of the respondent/ plaintiff.
T.
Because if the order impugned Judgment and
Decree, if allowed to stand, would occasion a failure of justice and cause
irreparable injury to the appellants against whom it was made.
U.
Because the findings reached by the learned
Court below is vitiated due to non-consideration of material evidence and by
consideration of inadmissible evidence.
V.
Because
no decree could be passed in favour of plaintiff as such plaintiff fails to
establish the relationship of landlord and tenant.
W.
The
findings of the trial Court with regard to striking out the defence of the
defendant/appellant in a suit for eviction is not final and the same can be looked into by the
lower appellate Court in appeal.
X.
The
Court below was not justified in granting a decree under Section 12(1)(a) of
the M.P. Accommodation Control Act, 1961, under the facts and circumstances of
the case.
Y.
Because
Respondent has proved all the ingredients of Section 12(1)(e) of the M.P.
Accommodation Control Act, 1961 in order to get a decree of eviction against
the appellants. The relevant provisions is quoted hereinbelow :
CHAPTER
III
Control
of Eviction of Tenants
12.
Restriction on eviction of tenants. - (1) Notwithstanding anything to the
contrary contained in any other law or contract, no suit shall be filed in any
civil Court against a tenant for his eviction from any accommodation except on
one or more of the following grounds only, namely :
(a)
that the tenant has neither paid nor tendered the whole of the arrears of the
rent legally recoverable from him within two months of the date on which a
notice of demand for the arrears of rent has been served on him by the landlord
in the prescribed manner;
(b)
that the tenant has, whether before or after the commencement of this Act,
unlawfully sub-let, assigned or otherwise parted with the possession of the
whole or any part of the accommodation for consideration or otherwise;
(c)
that the tenant or any person residing with him has created a nuisance or has
done any act which is inconsistent with the purpose for which he was admitted
to the tenancy of the accommodation, or which is likely to affect adversely and
substantially the interest of the landlord therein:
Provided
that the use by a tenant of a portion of the accommodation as his office shall
not be deemed to be an act inconsistent with the purpose for which he was
admitted to the tenancy;
(d)
that the accommodation has not been used without reasonable cause for which it
was let, for a continuous period of six months immediately preceding the date
of the filing of the suit for the recovery of possession thereof;
[(e)
that the accommodation let for residential purposes is
required bonafide by the landlord for occupation as a residence for
himself or for any member of his family, if he is the owner thereof, or for any
person for whose benefit the accommodation is held and that the landlord or
such person has no other reasonably suitable residential accommodation of his
own in his occupation in the city or town concerned ;
SUBSTANTIAL QUESTION OF LAW
I.
Whether
in the facts and circumstances of the case the findings reached by the learned
Court below is vitiated due to non-consideration of material evidence and by
consideration of inadmissible evidence ?
II.
Whether
the requirement of the respondent could be said to be bona fide under Section
12(1)(e) of the M.P. Accommodation Control Act, 1961 when the registered sale
deed dated 29.03.1995 Exhibit P-1
has already been challenged by way of separate suit filed by deceased brother
of defendant ?
III.
Whether
the findings of the trial Court with regard to striking out the defence of the
defendant/ appellant in a suit for eviction is final and the same cannot be
looked into by the lower appellate Court in appeal?
IV.
Whether
the Court below was right in granting decree though plaint and/ or plaint map
is not in accordance with the registered sale deed dated 29.03.1995 Exhibit P-1 ?
V.
Whether
a decree could be passed in favour of plaintiff though such plaintiff fails to
establish the relationship of landlord and tenant?
VI.
Whether
the 1st Appellate Court committed the error of law in not pronouncing the
judgment and decree on question of title?
VII.
Whether
the Court below was justified in granting a decree under Section 12(1)(a) of
the M.P. Accommodation Control Act, 1961, under the facts and circumstances of
the case?
VIII.
Whether
respondent has proved all the ingredients of Section 12(1)(e) of the M.P.
Accommodation Control Act, 1961 in order to get a decree of eviction against
the appellants?
IX.
Whether
the 1st Appellate Court committed the error of law in not deciding 2 applications
under Order 6, Rule 17 CPC and another under Order 41, Rule 27 CPC filed by
plaintiff ?
X.
Whether a Civil Court can pass a decree on the
ground that the defendant is a trespasser (in earlier suit) in a simple suit
for ejectment ?
XI.
Whether, when the relationship of
landlord and tenant and/or the licensor and licensee having not been proved,
the First Appellate Court committed a serious error in passing the impugned
judgment on the premise that the appellant was a trespasser (in earlier suit) ?
Caveat :
That No notice of lodging a caveat by
opposite parties is received to appellants.
PRAYER
It is therefore most humbly and
respectfully prayed that the Judgment and Decree dated 29.04.2019 passed by the
Court of IInd Additional District Judge, Mrs. Kirti Kashyap, Piparia, District – Hoshangabad (Madhya Pradesh) in the matter of Rama Kant Ratner V/s Gopal Prasad Sharma S/o
Mr. Awadh Bihari Sharma (Since Deceased) Through LR’s Mrs. Gayatri Sharma &
Ors., in the file of Regular Civil Appeal No. 3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }, may kindly be set aside, with costs throughout, in
the larger interest of Justice.
PLACE : JABALPUR
DATE : ADVOCATE FOR APPELLANTS
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANTS/ : MRS. GAYATRI SHARMA
VERSUS
RESPONDENT/ : RAMA
KANT RATNER
LIST OF
DOCUMENTS
|
S.No
|
Description
of document
|
Date of
document
|
Original
copy
|
Number of
page
|
|
1.
|
Legal
notice sent by plaintiff
|
05.05.2008
|
Xerox
|
10 (Ten)
|
|
2.
|
Plaint
alongwith its plaint map
|
23.07.2008
|
Xerox
|
10 (Ten)
|
|
3.
|
Written
Statement Vide Exhibit P-26
filed by the father of plaintiff Mool Chaand Ratner (In previous suit)
|
09.10.1996
|
Xerox
|
10 (Ten)
|
|
4.
|
Registered
sale deed Exhibit P-1
|
29.03.1995
|
Xerox
|
10 (Ten)
|
|
5.
|
Written
statement
|
05.11.2008
|
Xerox
|
10 (Ten)
|
|
6.
|
Application
under Order 26, Rule read with Section 151 CPC
|
|
Xerox
|
10 (Ten)
|
|
7.
|
Photographs
of suit property
|
|
Xerox
|
10 (Ten)
|
|
8.
|
Deposition
sheet of PW- Om Praksh Chouhan
|
|
Xerox
|
10 (Ten)
|
|
9.
|
Judgment
and Decree passed by the Court of
Civil Judge, Class-II, Mrs. Kiran Tumrachi Dhurve, Piparia, District – Hoshangabad (Madhya Pradesh) in the matter
of Rama Kant Ratner V/s Gopal Prasad
Sharma, in the file of Regular Civil Suit No. 7-A of 2009
|
21.12.2013
|
Xerox
|
10 (Ten)
|
|
10.
|
Application
under Order 6, Rule 17 CPC
|
17.02.2017
|
Xerox
|
10 (Ten)
|
|
11.
|
Reply
under Order 6, Rule 17 CPC
|
22.04.2017
|
Xerox
|
10 (Ten)
|
|
12.
|
Application
under Section 65 of Evidence Act
|
22.04.2017
|
Xerox
|
10 (Ten)
|
|
13.
|
Reply
under Section 65 of Evidence Act
|
22.04.2017
|
Xerox
|
10 (Ten)
|
|
14.
|
Application
under Order 41, Rule 27 CPC
|
24.01.2017
|
Xerox
|
10 (Ten)
|
|
15.
|
Reply
under Order 41, Rule 27 CPC under Section 65 of Evidence Act
|
|
Xerox
|
10 (Ten)
|
|
16.
|
Judgment and Decree passed by the Court of IInd Additional
District Judge, Mrs. Kirti Kashyap, Piparia, District
– Hoshangabad (Madhya Pradesh) in the matter of Rama
Kant Ratner V/s Gopal Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since
Deceased) Through LR’s Mrs. Gayatri Sharma & Ors., in the file of Regular
Civil Appeal No. 3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }
|
29.04.2019
|
Certified
Copy
|
12 (Twelve)
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANTS
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANTS/ : MRS. GAYATRI SHARMA
VERSUS
RESPONDENT/ : RAMA
KANT RATNER
APPLICATION UNDER ORDER 41, RULE 5 READ WITH
SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR GRANT OF STAY
Appellants
/ Defendant named above most humbly and respectfully beg to submit as under:
1.
Appellants/defendant have preferred the
instant second appeal under Section 100 of the Code of Civil Procedure, 1908
against the Judgment and Decree dated 29.04.2019
passed by the Court of IInd Additional District Judge, Mrs. Kirti Kashyap,
Piparia, District – Hoshangabad (Madhya Pradesh) in the matter of Rama Kant Ratner V/s Gopal Prasad Sharma S/o
Mr. Awadh Bihari Sharma (Since Deceased) Through LR’s Mrs. Gayatri Sharma &
Ors., in the file of Regular Civil Appeal No. 3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }, arising out of Judgment and Decree dated 21.12.2013
passed by the Court of Civil Judge, Class-II, Mrs. Kiran Tumrachi Dhurve, Piparia, District – Hoshangabad (Madhya
Pradesh) in the matter of Rama Kant Ratner
V/s Gopal Prasad Sharma, in the file of Regular Civil Suit No. 7-A of 2009.
2.
As per the averments made in the memo of
appeal, appellants have a good prima facie case in their favour and hope to
succeed in it. Appellants are in peaceful possession of the suit house and peaceful
possession of the same. If during pendency of instant appeal, decree passed in
appeal is not stayed, in the suit land then the appellant would suffer
irreparable loss and injury. The balance of convenience too lies in their
favour.
3.
It is expedient in the interest of Justice
that pending final disposal of instant appeal, Decree passed in appeal be
stayed.
An
affidavit in support of this application is being filed herewith.
PRAYER
It is therefore most humbly and respectfully prayed that
during pendency of instant appeal, execution of the impugned Judgment and Decree dated 29.04.2019 passed by the
Court of IInd Additional District Judge, Mrs. Kirti Kashyap, Piparia, District
– Hoshangabad (Madhya Pradesh) in the matter of Rama
Kant Ratner V/s Gopal Prasad Sharma S/o Mr. Awadh Bihari Sharma (Since
Deceased) Through LR’s Mrs. Gayatri Sharma & Ors., in the file of Regular
Civil Appeal No. 3-A of 2014 [Filing No. 23370-400086-2014] and {CNR No. MP0505-000043-2014 }, or alternatively parties may kindly be directed to
maintain status quo, in the larger interest
of Justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANTS
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
SECOND APPEAL NO. OF 2019
APPELLANTS/ : MRS. GAYATRI SHARMA
VERSUS
RESPONDENT/ : RAMA
KANT RATNER
AFFIDAVIT
I, SACHIN SHARMA, Aged about 36 years, S/o Late Mr. Gopal
Prasad Sharma, Occupation - R/o Infront of Police Station, Mangalwara
Market, Piparia, District – Hoshangabad –
461 775 (Madhya Pradesh), do hereby state on oath as under :
1. That I am the appellant in the above mentioned second
appeal and am fully conversant with the facts deposed to in the second appeal.
2.
That the contents of paragraphs 1 to 3 of the
accompanying application are true to my personal knowledge and the contents of
paragraphs are based on legal advice, which I believe to be true. No material
has been concealed and no part is false.
3.
That the Annexure No(s). A-1 & A-2 to the
accompanying second appeal are true copies of the originals and I have compared
the said Annexure with their respective originals and certify them to be true
copies thereof. So help me God.
PLACE : JABALPUR
DATED : DEPONENT
VERIFICATION
I, SACHIN SHARMA, the above named deponent do
hereby verify on oath that the contents of the affidavit above are true to my
personal knowledge and nothing material has been concealed or falsely stated.
Verified at ______this______day of _______
DEPONENT
Subscribe to:
Posts (Atom)