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2007 DIGILAW 702 (MP)

Bhawarlal s/o Gendaji v. Kasturibai d/o Raghunath

2007-07-10

S.K.SETH

body2007
ORDER S.K. Seth, J. 1. Shri M. G. Upadhyaya, learned Counsel for the Appellant. He is heard on the question of admission. This appeal by the Defendant is directed against the concurrent judgment and decree passed by the Additional District Judge, Narsingharh, District Rajgarh in Civil Appeal No. 33-A/2005. By the impugned judgment and decree, lower Appellate Court has affirmed the judgment and decree passed by the learned trial Court in favour of Respondents No. 1 and 2. 2. Respondents No. 1 and 2 filed a suit for declaration and permanent injunction against the Appellant in respect of agricultural land admeasuring 9.679 Hect situated in Village Kadia chundrawat, more particularly described in the plaint. It is an admitted fact that the suit land belonged to Raghunath, the father of Respondents. The admitted relationship between the parties is as under: It is also not disputed that the present Appellant filed a suit for declaration of title and permanent injunction on 3-11-1981, but that suit was withdrawn by the Appellant unconditionally during proceedings for mutation started by the Appellant. Appellant raised inconsistent plea with regard to mutation through Rajaram on the basis of oral partition at the same time he claimed that he was entitled to the mutation to the extent of 50 Paise share in the agricultural holdings of Raghunath based upon agreement. The said application was opposed by the Respondents and the Tehsildar accepted the claim of the Respondents and mutated the entire agricultural holdings in their name by order dated 6-7-1982. Against the order of Tehsildar, Appellant preferred an appeal before the Sub Divisional Officer who partly allowed the appeal and accepted the claim of the Appellant for mutation in the land in dispute to the extent of 50 Paise. It is alleged in the plaint that somewhere in the year 1995 the Appellant started making efforts for joint cultivation and started claiming equal share in the suit property which compelled the Respondents to institute the suit, out of which this appeal arises. Appellant resisted the suit and on the basis of pleadings of the parties, trial Court struck issues and allowed the parties to adduce evidence. Learned trial Judge after appreciating the evidence initially dismissed the suit. The judgment and decree of the trial Court was set-aside in first appeal and the case was remanded back in view of the application under Order XLI, Rule 27. 3. Learned trial Judge after appreciating the evidence initially dismissed the suit. The judgment and decree of the trial Court was set-aside in first appeal and the case was remanded back in view of the application under Order XLI, Rule 27. 3. Pursuant to the remand order, trial Court allowed the parties to adduce evidence and based upon appreciation of evidence, learned trial Judge decreed the suit. The matter was carried in appeal by the Appellant without success. Hence, this appeal under Section 100 of the Code of Civil Procedure Code. 4. Learned Counsel for the Appellant at the time of arguments submitted that the trial Court had no jurisdiction to embark upon enquiry regarding validity of the order of S.D.O. (Exhibit P/2) in view of the provisions contained in Section 250 read with Section 257 of the M. P. Land Revenue Code, 1959. It was submitted that it had attained the finality and no such suit could be filed. In this connection, it was also contended that the suit as framed was time-barred and the Respondents could not be permitted to challenge the order passed by S.D.O. after 15 years. I am not impressed by either of the submissions for the simple reasons it was not the case of the Appellant that he acquired title by adverse possession. That apart, it is settled that a mutation order does not confer any title or right as the Revenue authorities is not a judicial order. See 2003 R. N. 162 (SC), Bajrangi v. Badribai. Such order does not decide question of title nor do they operate as res judicata in a civil suit. Jurisdiction of Civil Court in that regard is not barred by Section 250 read with 257 of the Code, so these contentions must fail. The next contention of learned Counsel for the Appellant was that the suit is barred by principle of estoppel. In our considered view, without there being an iota of pleading and evidence, how this contention was raised. Be that as it may, it is clear that plea of estoppels is a rule of evidence and it does not create interest in property - Banwarilal v. Sukkdharshan, 1973 MPLJ Note 23 : AIR 1973 SC 814 . So this contention also does not advance the case of the Appellant. 5. Be that as it may, it is clear that plea of estoppels is a rule of evidence and it does not create interest in property - Banwarilal v. Sukkdharshan, 1973 MPLJ Note 23 : AIR 1973 SC 814 . So this contention also does not advance the case of the Appellant. 5. Thus after having heard the learned Counsel for the Appellant at length and also perused the records of Courts below, in the considered opinion of this Court, none of the submissions urged by the learned Counsel for Appellant for admission of the appeal has any force. The judgments and decrees passed by the Courts below are based on proper appreciation of evidence which do not call for any interference in this second appeal. In the considered opinion of this Court, this appeal does not involve any question of law much less substantial question of law. Thus, I find no merit and substance in this appeal. The findings of fact based on proper appreciation of evidence are binding on this Court and are not open to interference. Material evidence has been considered to come to such findings and as such there is no scope of interference with such findings of fact. It is not a case of misreading of evidence leading to miscarriage of justice. Neither a case of no evidence and thus, the findings are not perverse to invite the ratio of Ishwar Das Jain v. Sohanlal, AIR 2000 SC 426 , hence such findings being unassailable is confirmed in this second appeal. 6. In view of the foregoing discussion, I do not find any merit and substance in this appeal. Same is accordingly dismissed summarily. 7. Appeal dismissed.