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Madhya Pradesh High Court · body

2008 DIGILAW 290 (MP)

Satyanarayan Agrawal v. State of M. P.

2008-02-22

U.C.MAHESHWARI

body2008
Judgment ( 1. ) THIS appeal is directed by the appellants/plaintiffs being aggrieved by the order dated 3. 3. 2007 passed by the District Judge, satna in Civil Original Suit No. 5-A/07, whereby their application filed under Order 39 Rule 1 and 2 r/w Section 151 of CPC restraining the respondent from making any construction on the disputed land has been dismissed. ( 2. ) THE facts giving rise to this appeal in short are that the appellant filed a suit for declaration and perpetual injunction along with an application under Order 39 Rule 1 and 2 r/w Section 151 of cpc contending that the land situated at village Kolgawan, Satna bearing survey No. 257/1-B/3 area 0. 25 and survey No. 257/1-B/4 area 0. 25 were bought by their predecessor Meman Chandra agrawal, from its earlier Bhumi-swami Yadunath Prasad and saraswat Prasad through registered sale deeds dated 20. 3. 1989 and 13. 7. 1990 respectively. The earlier survey number was mutated in the name of the appellants while the later was mutated in the name of meman Chandra Agrawal. The same was got diverted. On demise of said meman Chandra Agrawal, they inherited his land as bhumiswami. The same was demarcated at the instance of the appellants on 8. 10. 97 and its report was approved by the Tehsildar raghurajnagar. Subsequent to it, on first July, 1999, the fencing of such land was being carried-out by the respondents, the same was objected by them before the Tehsildar. In response of it, on behalf of respondent No. 2, it was stated that such fencing is not being carried-out by it. Thereafter again at the instance of respondent No. 2 some digging work was being carried out on 20. 4. 07. On resisting, the appellant No. 4 was misbehaved by the officials of respondents, on which the aforesaid suit along with the application for issuing ad-interim injunction was filed. ( 3. ) IN reply of the respondents by denying the aforesaid averments, it was stated that the land bearing survey No. 255/2, 257/2, 258,299,675, 257 (A) total area 8. 59 acres bounded three sides by road while school building the fourth side is belonging to the State respondent No. 1. It was never remained the property of the appellants. It being the play ground of the school was bounded by the wire fencing. 59 acres bounded three sides by road while school building the fourth side is belonging to the State respondent No. 1. It was never remained the property of the appellants. It being the play ground of the school was bounded by the wire fencing. The same was being replaced by constructing the wall with the permission of respondent No. 1. The respondents or its official did not have any inimical relation with the appellants. The educational institution of respondents is functioning there since 1953. The appellants with intention to snatch the property of the respondents filed the suit and application on the basis of false and fabricated documents. With these averments the prayer for dismissal of the application is made. ( 4. ) ON behalf of both the parties the different Khasra entrees affidavits and other documents were produced on record. On consideration, it was held that appellants did not have any prima-facie case or balance of convenience in their favour, even on refusing ad-interim injunction they will not suffer any irreparable injury and in such premises the appellants application has been dismissed by the trial court. Being dissatisfied with this order the appellants have come forward to this court with this appeal. ( 5. ) SHRI P. S. Das, learned appellants counsel argued that the appellants are in possession of such land through their predecessors in title. They bought the same from its earlier owners through registered sale deeds dated 23. 10. 89 and 13. 7. 90 and got mutated their name in the record of rights. Its demarcation was also carried-out in the year 1997. The report of Revenue Officers in this regard was approved by the then Tehsildars. By referring the provision of section 117 of Madhya Pradesh Land Revenue Code,1989 (in short the Act), he said there is presumption regarding correctness of the revenue record unless the contrary is proved. In view of such presumption and in the available circumstances the trial court ought to have issued ad interim injunction in favour of the appellants and prayed for the same by setting aside the impugned order. ( 6. ) ON the other hand, Shri J. K. Jain, learned Govt. In view of such presumption and in the available circumstances the trial court ought to have issued ad interim injunction in favour of the appellants and prayed for the same by setting aside the impugned order. ( 6. ) ON the other hand, Shri J. K. Jain, learned Govt. Advocate by referring the copies of Khasra entries since 1961-1962 to 1987-1988, said that during this period such land was never recorded in the name of the person from whom it was bought by the appellant or their predecessors. If it was not belonging to the sellers of their sale deeds then also they did not get any right in it. On the contrary, such land was recorded in the name of Aero drum, Govt. Road, Grass Land and later it was recorded in the name of Nazul Department State of madhya Pradesh. Thus, mere on account of some mutation in the revenue record, the appellants did not have any legal right in such land. He specifically said that in the lack of any documentary evidence, it cannot be inferred that the appellants acquired the title or possession of the aforesaid land. According to his submission, in this background, the trial court has not committed any error in dismissing the application of the appellants and prayed for dismissal of this appeal. ( 7. ) HAVING heard the counsel, after perusing the pleadings and the papers placed by the parties on record along with the impugned order, I am of the considered view that the trial court has not committed any error in dismissing the appellants application. ( 8. ) IT is settled preposition of the law that the Khasra entries are not the conclusive documents to infer the title in favour of either of the parties but the Khasra entries may be considered to hold the prima facie proof of possession of the property if the same are made on the basis of the deeds executed by the right person. The Khasra entries of the concerned survey numbers for the period 1961-62 to 2006-07 are produced on record by the parties. As per provision of section 109,110 of the Act, the name of Bhumi Swami is mutated on acquisition the title of such land from the earlier recorded Bhumi swami. The Khasra entries of the concerned survey numbers for the period 1961-62 to 2006-07 are produced on record by the parties. As per provision of section 109,110 of the Act, the name of Bhumi Swami is mutated on acquisition the title of such land from the earlier recorded Bhumi swami. If the name of earlier Bhumi Swami is not found in the revenue record of the concerned year then mere on the basis of any document if some mutation is carried-out by the Tehsildar then it does not give any right to the person whose name is recorded in such manner. ( 9. ) AS per provision of Section 7 of Transfer of property Act the transferor should be competent to transfer the transferable property. If he did not have any right over the property then, he had no authority to transfer the same. Such question was considered and answered by the Apex court in the matter of Balai Chandra Mondal vs. Smt Indurekha Debi and others- AIR 1973 SC 782 in which it was held as under : "3" The decision"""". It is a thoroughly well-recognised principle that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Sec. 7 of the transfer of Property Act only a person authorised to dispose of transferable property not his own is competent to transfer it either wholly or in part"" ( 10. ) IN view of the aforesaid on examining the case at hand it is apparent that not a single Khasra entry or any other document of this nature showing that before executing the alleged sale deeds in favour of the appellants or their predecessor the disputed land was recorded as Bhumi Swami in the name of such seller the transferor and the predecessor in title of the appellants. Therefore, at this stage, it cannot be inferred that the alleged sale deeds dated 23. 10. 89 and 13. 7. 90, were executed by the right full owners of the land it appears from the revenue record and other papers that the disputed land survey No. 257-2 (A) area 11. 45 acre was recorded in the year 196162 to 1962-63 in the name of Aero drum and 257-b area 0. 88 acre was recorded in the name of State (Sarkari) while the Survey No. 2572- (b) area 0. 45 acre was recorded in the year 196162 to 1962-63 in the name of Aero drum and 257-b area 0. 88 acre was recorded in the name of State (Sarkari) while the Survey No. 2572- (b) area 0. 25 was recorded in the name of Bharat Kumar S/o chironjilal Jain. Besides this, in the same year the land bearing survey No. 257-1-A and 257-1-B are also recorded in the name of state (Khata Sarkari ). Thereafter, in the khasra entry of the year 1969-70 to 1973-74, the survey No. 257-1/a area 2. 29 acre/0. 925 hectare, is recorded in the name of Grass Land (Banjar Beed), while survey No. 257-1-B area 0. 20/0. 081 was recorded as Road (Sadak ). During this period in the year 1971-72, such land was mutated in the name of Nazul Department State of Madhya Pradesh. For the period of 1974-75 to 1978-79, aforesaid both the survey numbers are recorded in the name of Nazul Department State of Madhya Pradesh. Although in Column No. 12, it is mentioned that Ravi Pratap Singh and Kiran Devi are in possession of some part of it as they have constructed their houses on it. In the Khasra for the year 1979-90 to 1983-84 the both survey numbers are recorded in the name of nazul Department State of Madhya Pradesh as Bhumi Swami but in kafiat column the possession of aforesaid Ravi Pratap Singh, Kiran devi and one Brij Kishore Singh on some different parts are mentioned with the endorsement that they have made some construction on such part. In the Khasra entry of the year 1984-85 to 1988-89 again both the entries are recorded in the name of Nazul department, State of Madhya Pradesh and in Kafiat column possession of Kiran Devi on some part of it is mentioned. In the khasra of the year 1989-90 to 93-94, such land is recorded in the same name of Nazul Department, State of Madhya Pradesh but there is some endorsement in the year 1991-92 regarding some mutation of the appellants over the land. But in support of such mutation , I have not found any order or other document showing that such land was ever recorded or allotted to the persons the predecessors in title of the appellants. Even I have not found any order by which the different numbers have been given to different part of this land. But in support of such mutation , I have not found any order or other document showing that such land was ever recorded or allotted to the persons the predecessors in title of the appellants. Even I have not found any order by which the different numbers have been given to different part of this land. According to khasra of the year 1989-90 to 1993-94 the land 0. 50 acre (0. 202 hectare) bearing the survey No. 257/1/a, is recorded as Bhumi swami in the name of Sarbat Prasad son of Jagannath Prasad but such name was not found as Bhumi swami in any earlier Khasra as mentioned above. I have not found any reliable documentary evidence in this regard showing that his name was duly recorded in the Khasra. It appears that under some conspiracy the alleged sale deeds got registered by the appellants or their predecessor on the basis of some stray entry in the Khasra and by taking advantage of such sale deeds, the disputed land got mutated by the appellant in the year 1991-92. ( 11. ) IT is true that since 1991-92 till date of filing the suit, the name of the appellants or their predecessor are recorded as Bhumi swami in the Khasra of the aforesaid land. ( 12. ) IT is noted that as per the case of the respondents it being the government land was remained as play ground of their School. Since long, it was bounded by the wire fencing and the same was being replaced by constructing the boundary wall. It appears from the record that some educational institution in the name of BTI was running in the building situated nearby the disputed land. Such institution is still running in the name of DIET. Some papers are also available on the record showing that the disputed land is belonging exclusively to the State of Madhya Pradesh. ( 13. ) IN view of the aforesaid discussion, it is revealed that between the years 1961-62 to 1987-88 the disputed land was never recorded in the name of the predecessor of the appellants from whom they purchased the same. When it was not recorded in the name of their predecessor then how they acquired the title by the alleged registered sale deeds. When it was not recorded in the name of their predecessor then how they acquired the title by the alleged registered sale deeds. Although, all these things require elaborate enquiry which will be held by the trial court while adjudicating the matter after recording the evidence but at present, in the aforesaid circumstances, I have not found any prima facie case or balance of convenience in favour of the appellants to hold their possession of such land. In such premises it could not be said that in the absence of any interim injunction the appellants have to suffer any irreparable injury. Accordingly, I have not found any ground to issue ad-interim injunction against the respondents. Apart this, if any boundary wall is made by the respondents in pendency of this suit even then the appellants will not suffer any irreparable injury and subject to adjudication of the suit, they will have right to proceed against the respondents further. Under such circumstances, I have not found any perversity, illegality or irregularity in the impugned order passed by the trial court. ( 14. ) THEREFORE, this appeal being devoid of any merits, is hereby dismissed and the order of the trial court is hereby affirmed. However, it is clarified that the findings or any observation made in this order shall not come in the way of trial court in deciding the suit on merits. The trial court shall be at liberty to decide the suit without influencing any findings or observation made in this order. ( 15. ) APPEAL is dismissed.