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[mohit s. shah; s.j. vazifdar, jj.] - the respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. the respondents claim to be the assignees of this mark. the mark was assigned from time to time. ultimately by a deed of assignment dated 14.9.2004, the registered trade mark label 555 was assigned to the respondents. the application for renewal of the mark is pending. the respondents have used the trade mark label 555 in conjunction with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. 1. the appellant/defendant no.1 has preferred this appeal under section 100 of the cpc, being aggrieved by the judgment and decree dated 6.8.09 passed by ii addl. district judge shahdol in civil regular appeal no.26-a/09, affirming the judgment and decree dated 28.8.08 passed by civil judge class-i, burhar in civil original suit no.5-a/2004, whereby the suit of respondent no.1 regarding agricultural land was decreed for declaration, possession, perpetual injunction and also for mesne profit.2. the facts giving rise to this appeal in short are that the respondent no.1 herein filed the aforesaid suit against the appellant by impleading respondent no.2 her sister and respondent no.3 state as defendants inter alia contending that the disputed land described in the annexed annexure with the plaint situated at village malya, tehsil jaitpur, district shahdol was given to one indrajeet s/o jhari gond on patta in settlement in vikram samvat year 1983-1993. since then, such indrajeet, being bhumi swami of such land was in possession and cultivating the same. indrajeet died issue-less before 50-55 years ago, on which, such land was inherited by her nephew, the son of his brother saingarwa and shivmangal. after their demise, the same was recorded in the name of buddhu son of saingarwa and smt chamnia wife of shivmangal. such chamnia had two daughters, namely, rajni the mother of respondent no.1/plaintiff and one manrajia. by the time, the property inherited by buddhu and chamnia was partitioned between them in which the disputed land had come in the share of chamniya, the maternal grand mother of the plaintiff. subsequent to it, with the consent of buddhu and chamnia, the share of chamnia in such land, described in annexure -b annexed with the plaint, was mutated and recorded in the name of his son-in-law shivnath the husband of rajni while father of respondent no.1/plaintiff as bhoomi swami and since then he being in possession, was cultivating the same but just to lookafter the agricultural activities of said land, said shivnath kept appellant besahna with him as he was the son of his real brother shivratan. accordingly, appellant besahna or his father shivratan were not in relation with said indrajeet or his successors in any manner. subsequent to it, by taking advantage of residing in the family of shivnath, under some conspiracy with the revenue officers besahna got recorded his name in the revenue record as bhumi swami on such land. as per further averments such mutation was carried-out by the appellant by stating himself to be the grand son of chamnia and name of nan bai was mentioned as his mother who was also shown to be the daughter of chamnia, while except respondent no.1 and 2, there was no any other daughter of said chamnia. after such mutation, taking advantage of such revenue record, in the year 2003, the appellant dispossessed respondent no.1 from the disputed land, on which, the suit for declaration, possession, perpetual injunction with some other relief was filed. in alternative the prayer for decreeing the suit in favour of respondent no.1 and her sister respondent no.2 was also made.3. in the trial court, respondent no.2 sitaramiya, the real sister of respondent no.1/plaintiff, neither appeared nor filed any written statement and case was proceeded ex-parte against her.4. in the written statement of appellant/defendant no.1, it is stated that actually the name of chamnia was chameliya and her husband shivmangal was known and called in the name of bhola. as per further averments such chamnia had three daughters, respondent no.1,2 and one nan bai, the mother of the appellant. it is also stated that in the lifetime of shivnath, said chamnia had given her entire share of the land to the appellant. the same was also mutated in his name and since then he is coming in possession of it. the appellant has not denied the fact that he is the son of shivratan while the other averments of the plaint are denied by him in the written statement and prayer for dismissal of the suit was made.4. the state of madhya pradesh was impleaded as formal party in the matter, hence no any relief either interim or final was prayed against it.5. it is undisputed fact on record that the disputed land was belonging to chamnia wife of shivmangal and respondent no.1 and 2 were the daughter of said chamnia and parties of the case having faith in hindu religion and they are governed in the matter of succession by hindu succession act, 1956.6. in view of the pleadings of the parties, after framing the issues, the evidence was recorded. on appreciation of the same by holding that the appellant is neither grand son of said chamnia nor in direct relation with the family of chamnia or shivnath and, his mother nan bai was also not the daughter of said chamnia and shivmangal, decreed the suit in favour of respondent no.1 as stated above. on filing the appeal by the appellant against such judgment and decree, on consideration, the appellate court, with some modification, in the judgment and decree of the trial court holding to the respondent no.1 and 2 are the bhumi swami of the disputed land and, dismissed the appeal regarding other grounds. being dissatisfied with the judgment and decree of the courts below, the appellant has come forward to this court with this appeal.7. shri atul upadhyay, learned appearing counsel of the appellant after taking me through the pleadings of the parties and the evidence along with the exhibited documents on record said that on appreciation, both the courts below have committed error in holding that the disputed land was belonging to shivnath, the son-in-law of said chamnia, the father of the present respondent no.1 and 2. the case of the appellant that he is the son of nan bai, the third daughter of deceased chamnia, was not considered with proper approach and under wrong premises it was held that chamnia had only two daughters, namely, rajni, the mother of respondent no.1 and 2 and manrajiya. thus, such finding being contrary to the available record is not sustainable under the law. besides this, he also argued that the appellant was in long possession of the disputed land and perfected his right of bhumi swami over the disputed land. his name was also recorded as son of nan bai, the third daughter of deceased chamnia the earlier recorded bhumi swami of such land and, in such premises, the suit of respondent no.1 was barred by limitation but such question was also not considered with proper approach by the courts below while decreeing the suit of respondent no.1. in such premises, prayed for admission of this appeal on the substantial question of law relating to the limitation of filing the suit as well as on the ground of title of the disputed property.8. having heard the counsel, i have carefully gone through the record and also perused the impugned judgment. on appreciation of the pleadings and the available evidence, the trial court as well as the appellate court has come to the conclusion that initially the land was belonging to indrajeet, the principal owner. after his death, it was recorded in the name of saingarwa, the son of his brother and one shivmangal and, thereafter, in the name of buddhu son of saingarwa and chamnia wife of shivmangal. subsequent to that the land was partitioned between buddhu and chamnia, in which the disputed land was recorded in the name of chamnia. it is also held by the courts below that chamnia and shivmangal had two daughters, namely, rajni and manrajiya and did not have any other issue. it was also held that in the lifetime of chamnia, with her consent, such land was recorded as bhumi swami in the name of shivnath, her son-in-law the husband of rajni while the father of respondent no.1 and since then shivnath along with mother of respondent no.1, was residing with chamnia. such mutation of shivnath was never challenged by chamnia in her lifetime and as per the appellate court findings, after death of shivnath, the disputed land devolved in the right of respondent no.1/plaintiff and respondent no.2 in equal share as both are daughters of shivnath and, till this extent, the findings of the trial court holding only respondent no.1 as bhumi swami of such land is modified. as per further findings of the courts below which is based on appreciation of the evidence, the present appellant besahna was found to be the son of ramratan who was the real brother of said shivnath and as per the further findings the mother of appellant was not held to be the daughter of said chamnia. as per record said nan bai, the mother of the appellant and wife of shivratan was the daughter of some other relative of chamnia and, in such premises, it was held that no right of bhumi swami has been devolved on the appellant on the death of said chamnia. after perusing the deposition of examined witnesses of the parties, such approach of the courts below do not appear to be contrary to the available evidence and, in such premises, such finding being based on appreciation of the evidence, is a finding of fact which does not give rise to any question of law, muchless, the substantial question of law, requiring any consideration at this stage under section 100 of the cpc.9. so far the question of limitation is concerned, on appreciation of the evidence, categorically it is held by both the courts below that appellant besahna, being son of shivratan, the real brother of shivnath, was kept by shivnath with him for taking assistance and looking after the agricultural activities of the disputed land but mere on the basis of residing with shivnath or in his family not given any right to him in the disputed property and as per the available record the present appellant got mutated his name in the record of right near about in the year 2003 and immediately thereafter took-over possession of the property from the respondent no.1 and, on coming to know regarding such mutation and dispossession of the property immediately within limitation, the impugned suit was filed by respondent no.1. in such premises, the approach of the courts below holding that the impugned suit was filed by respondent no.1 within time, being based on the revenue records and other available evidence, is a finding of fact and, as per the settled legal position of the law, the concurrent findings of the fact based on evidence could not be interfered under section 100 of the cpc as the same does not give rise to any question of law, muchless, the substantial question of law. so, in the available circumstances, the ground of limitation is also not available to the appellant as substantial question of law.10. in the aforesaid premises, i have not found any perversity, illegality or irregularity in the impugned judgment in decreeing the suit of respondent no.1 by the appellate court in favour of respondent no.1 and 2 and, in such premises, i have not found any circumstance in the case giving rise to any question of law, muchless, the substantial question of law in the matter requiring any consideration under section 100 of the cpc . hence, this appeal is hereby dismissed at the stage of motion hearing.
Judgment:1. The appellant/defendant No.1 has preferred this appeal under section 100 of the CPC, being aggrieved by the judgment and decree dated 6.8.09 passed by II Addl. District Judge Shahdol in Civil Regular Appeal No.26-A/09, affirming the judgment and decree dated 28.8.08 passed by Civil Judge Class-I, Burhar in Civil Original Suit No.5-A/2004, whereby the suit of respondent No.1 regarding agricultural land was decreed for declaration, possession, perpetual injunction and also for mesne profit.
2. The facts giving rise to this appeal in short are that the respondent No.1 herein filed the aforesaid suit against the appellant by impleading respondent No.2 her sister and respondent No.3 State as defendants inter alia contending that the disputed land described in the annexed annexure with the plaint situated at village Malya, Tehsil Jaitpur, District Shahdol was given to one Indrajeet S/o Jhari Gond on Patta in settlement in Vikram Samvat year 1983-1993. Since then, such Indrajeet, being Bhumi Swami of such land was in possession and cultivating the same. Indrajeet died issue-less before 50-55 years ago, on which, such land was inherited by her nephew, the son of his brother Saingarwa and Shivmangal. After their demise, the same was recorded in the name of Buddhu son of Saingarwa and Smt Chamnia wife of Shivmangal. Such Chamnia had two daughters, namely, Rajni the mother of respondent No.1/plaintiff and one Manrajia. By the time, the property inherited by Buddhu and Chamnia was partitioned between them in which the disputed land had come in the share of Chamniya, the maternal grand mother of the plaintiff. Subsequent to it, with the consent of Buddhu and Chamnia, the share of Chamnia in such land, described in Annexure -B annexed with the plaint, was mutated and recorded in the name of his son-in-law Shivnath the husband of Rajni while father of respondent No.1/plaintiff as Bhoomi Swami and since then he being in possession, was cultivating the same but just to lookafter the agricultural activities of said land, said Shivnath kept appellant Besahna with him as he was the son of his real brother Shivratan. Accordingly, appellant Besahna or his father Shivratan were not in relation with said Indrajeet or his successors in any manner. Subsequent to it, by taking advantage of residing in the family of Shivnath, under some conspiracy with the revenue officers Besahna got recorded his name in the revenue record as Bhumi Swami on such land. As per further averments such mutation was carried-out by the appellant by stating himself to be the grand son of Chamnia and name of Nan Bai was mentioned as his mother who was also shown to be the daughter of Chamnia, while except respondent No.1 and 2, there was no any other daughter of said Chamnia. After such mutation, taking advantage of such revenue record, in the year 2003, the appellant dispossessed respondent No.1 from the disputed land, on which, the suit for declaration, possession, perpetual injunction with some other relief was filed. In alternative the prayer for decreeing the suit in favour of respondent No.1 and her sister respondent No.2 was also made.
3. In the trial court, respondent No.2 Sitaramiya, the real sister of respondent No.1/plaintiff, neither appeared nor filed any written statement and case was proceeded ex-parte against her.
4. In the written statement of appellant/defendant No.1, it is stated that actually the name of Chamnia was Chameliya and her husband Shivmangal was known and called in the name of Bhola. As per further averments such Chamnia had three daughters, respondent No.1,2 and one Nan Bai, the mother of the appellant. It is also stated that in the lifetime of Shivnath, said Chamnia had given her entire share of the land to the appellant. The same was also mutated in his name and since then he is coming in possession of it. The appellant has not denied the fact that he is the son of Shivratan while the other averments of the plaint are denied by him in the written statement and prayer for dismissal of the suit was made.
4. The State of Madhya Pradesh was impleaded as formal party in the matter, hence no any relief either interim or final was prayed against it.
5. It is undisputed fact on record that the disputed land was belonging to Chamnia wife of Shivmangal and respondent No.1 and 2 were the daughter of said Chamnia and parties of the case having faith in hindu religion and they are governed in the matter of succession by Hindu Succession Act, 1956.
6. In view of the pleadings of the parties, after framing the issues, the evidence was recorded. On appreciation of the same by holding that the appellant is neither grand son of said Chamnia nor in direct relation with the family of Chamnia or Shivnath and, his mother Nan Bai was also not the daughter of said Chamnia and Shivmangal, decreed the suit in favour of respondent No.1 as stated above. On filing the appeal by the appellant against such judgment and decree, on consideration, the appellate court, with some modification, in the judgment and decree of the trial court holding to the respondent No.1 and 2 are the Bhumi Swami of the disputed land and, dismissed the appeal regarding other grounds. Being dissatisfied with the judgment and decree of the courts below, the appellant has come forward to this court with this appeal.
7. Shri Atul Upadhyay, learned appearing counsel of the appellant after taking me through the pleadings of the parties and the evidence along with the exhibited documents on record said that on appreciation, both the courts below have committed error in holding that the disputed land was belonging to Shivnath, the son-in-law of said Chamnia, the father of the present respondent No.1 and 2. The case of the appellant that he is the son of Nan Bai, the third daughter of deceased Chamnia, was not considered with proper approach and under wrong premises it was held that Chamnia had only two daughters, namely, Rajni, the mother of respondent No.1 and 2 and Manrajiya. Thus, such finding being contrary to the available record is not sustainable under the law. Besides this, he also argued that the appellant was in long possession of the disputed land and perfected his right of Bhumi Swami over the disputed land. His name was also recorded as son of Nan Bai, the third daughter of deceased Chamnia the earlier recorded Bhumi Swami of such land and, in such premises, the suit of respondent No.1 was barred by limitation but such question was also not considered with proper approach by the courts below while decreeing the suit of respondent No.1. In such premises, prayed for admission of this appeal on the substantial question of law relating to the limitation of filing the suit as well as on the ground of title of the disputed property.
8. Having heard the counsel, I have carefully gone through the record and also perused the impugned judgment. On appreciation of the pleadings and the available evidence, the trial court as well as the appellate court has come to the conclusion that initially the land was belonging to Indrajeet, the principal owner. After his death, it was recorded in the name of Saingarwa, the son of his brother and one Shivmangal and, thereafter, in the name of Buddhu son of Saingarwa and Chamnia wife of Shivmangal. Subsequent to that the land was partitioned between Buddhu and Chamnia, in which the disputed land was recorded in the name of Chamnia. It is also held by the courts below that Chamnia and Shivmangal had two daughters, namely, Rajni and Manrajiya and did not have any other issue. It was also held that in the lifetime of Chamnia, with her consent, such land was recorded as Bhumi Swami in the name of Shivnath, her son-in-law the husband of Rajni while the father of respondent No.1 and since then Shivnath along with mother of respondent No.1, was residing with Chamnia. Such mutation of Shivnath was never challenged by Chamnia in her lifetime and as per the appellate court findings, after death of Shivnath, the disputed land devolved in the right of respondent No.1/plaintiff and respondent No.2 in equal share as both are daughters of Shivnath and, till this extent, the findings of the trial court holding only respondent No.1 as Bhumi Swami of such land is modified. As per further findings of the courts below which is based on appreciation of the evidence, the present appellant Besahna was found to be the son of Ramratan who was the real brother of said Shivnath and as per the further findings the mother of appellant was not held to be the daughter of said Chamnia. As per record said Nan Bai, the mother of the appellant and wife of Shivratan was the daughter of some other relative of Chamnia and, in such premises, it was held that no right of Bhumi Swami has been devolved on the appellant on the death of said Chamnia. After perusing the deposition of examined witnesses of the parties, such approach of the courts below do not appear to be contrary to the available evidence and, in such premises, such finding being based on appreciation of the evidence, is a finding of fact which does not give rise to any question of law, muchless, the substantial question of law, requiring any consideration at this stage under section 100 of the CPC.
9. So far the question of limitation is concerned, on appreciation of the evidence, categorically it is held by both the courts below that appellant Besahna, being son of Shivratan, the real brother of Shivnath, was kept by Shivnath with him for taking assistance and looking after the agricultural activities of the disputed land but mere on the basis of residing with Shivnath or in his family not given any right to him in the disputed property and as per the available record the present appellant got mutated his name in the record of right near about in the year 2003 and immediately thereafter took-over possession of the property from the respondent No.1 and, on coming to know regarding such mutation and dispossession of the property immediately within limitation, the impugned suit was filed by respondent No.1. In such premises, the approach of the courts below holding that the impugned suit was filed by respondent No.1 within time, being based on the revenue records and other available evidence, is a finding of fact and, as per the settled legal position of the law, the concurrent findings of the fact based on evidence could not be interfered under section 100 of the CPC as the same does not give rise to any question of law, muchless, the substantial question of law. So, in the available circumstances, the ground of limitation is also not available to the appellant as substantial question of law.
10. In the aforesaid premises, I have not found any perversity, illegality or irregularity in the impugned judgment in decreeing the suit of respondent No.1 by the appellate court in favour of respondent No.1 and 2 and, in such premises, I have not found any circumstance in the case giving rise to any question of law, muchless, the substantial question of law in the matter requiring any consideration under section 100 of the CPC . Hence, this appeal is hereby dismissed at the stage of motion hearing.