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Madhya Pradesh High Court · body

2000 DIGILAW 1107 (MP)

Hari Ram v. Municipal Council, Ganj Basoda

2000-10-11

A.K.MISHRA

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Short Note Defendant-appellant has preferred this appeal against judgment and decree dated 17.1.97 passed by the Additional District Judge, Vidisha, camp Ganj Basoda. Plaintiff filed the suit for restoration of possession of disputed plot admeasuring 25 x 45 ft. as per the plaint map alleging that without any right over the land the defendant had encroached the said plot. Complaint under section 187 (8) and 223 of the Municipalities Act was filed but the same was dismissed for want of evidence. Possession was taken over by the defendant on 26.8.78 and the house was also constructed over the said plot. Mesen profit at the rate of Rs. 50/- per month was claimed by the plaintiff. In the written statement defendant took the plea that prior to 8-9 years of 26.8.78. Tapra of Matadin was situated over the disputed plot and he used to reside in it. On 26.8.78 Matadin had entered into an agreement for sale, with the defendant and handed over the possession. The agreement was entered for a sum of Rs. 900/-. Thereafter, the defendant is continuing to be in possession of the house. Defendant has made certain improvements in the Tapra. Trial Court came to the conclusion that the plaintiff has not been able to prove his case and dismissed the suit on the ground that plaintiff has failed to prove the possession within 12 years. On appeal the first appellate Court reversed the judgment and decree passed by the trial Court and ordered the restoration of possession. Learned first appellate Court came to the conclusion that there is no question of perfection of title by adverse possession by the defendant. As a matter of fact, there was a proposal of sale. Since the origin of possession as per the defendant's case was permissible, there is no question of perfection of title by adverse possession. Appellate Court also came to the conclusion that the defendant has failed to prove the possession within the requisite length of time so as to ripen the ownership. Perusal of the agreement Ex D-1C indicates that this fact is mentioned in the agreement that Municipal Council placed Matadin in possession of the plot in question. It is also mentioned in the agreement, that the Municipal council was unable to execute the sale deed for want of government sanction. Perusal of the agreement Ex D-1C indicates that this fact is mentioned in the agreement that Municipal Council placed Matadin in possession of the plot in question. It is also mentioned in the agreement, that the Municipal council was unable to execute the sale deed for want of government sanction. I do not find force in substantial question of law 1 and 2 as framed with respect to the limitation and adverse possession. Substantial question of law No. 3 which has been framed in the appeal also does not arise as the ejectment could be order by the Court below. Faced with the situation learned counsel appearing for the appellant has raised the submission that it is a case where for want of sanction from the Government of sale, the sale could not be finalised by the Municipal Council in favour of Matadin and subsequently in favour of the defendant. He also raised a submission that since residential house is not available to the defendant, he may not be evicted as the intendment of the Municipal Council is to allot plot to the landless persons. No such direction in decree can be made. The decree has been rightly passed by the Court below. If any representation is made by the appellant it is expected that the Municipal Council, unfettered by the dismissal of this appeal, may take its own decision sympathetically in accordance with law i.e. either to allot the land or to settle the same with the defendant, if it is permissible in accordance with law. In the result, appeal is without merit and the same is dismissed. Parties are directed to bear their own costs.