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Madhya Pradesh High Court · body

2008 DIGILAW 322 (MP)

Prahlad, Bihari Ahirwar v. State of M. P.

2008-02-27

A.K.SHRIVASTAVA

body2008
Judgment ( 1. ) THE plaintiff has preferred this second appeal against the impugned judgment and decree passed by learned Additional District Judge, gadarwara, Distt. Narsinghpur in Civil Appeal No. 50-A/2005 dated 16th may, 2006 dismissing his appeal and thereby affirming the judgment and decree of learned trial Court dismissing the suit for declaration and injunction of plaintiff/appellant. ( 2. ) IN brief, the suit of plaintiff is that the suit property is agricultural land, the description whereof has been mentioned in the plaint, is being possessed by him. The father of plaintiff Bihari was possessing the suit property up to 1978-79 when he died and after his death appellant is possessing the suit property peacefully and continuously as owner in the knowledge of defendant and, hence, he has perfected his title by way of adverse possession on the suit property. It has also been pleaded in the plaint that Tahsildar, Gadarwara tried to remove the possession of the plaintiff several times and also imposed the fine but the plaintiff was never dispossessed from the suit property. In this manner, it has been prayed that it be declared that plaintiff has perfected title on the suit property by way of adverse possession. ( 3. ) DESPITE the defendant was served, no appearance was put on its behalf and the trial Court proceeded ex-parte against it. The plaintiff thereafter adduced his evidence and submitted the revenue record w. e. f. 1978 to 2003-04 in which the ownership of the State Government is mentioned and the name of plaintiffs father namely Bihari and thereafter the name of plaintiff is mentioned as trespasser. The plaintiff also examined himself and his witnesses Chunnilal and Mithulal in order to prove his possession. ( 4. ) LEARNED trial Court on the basis of the evidence placed on record came to hold that the appellant is in possession of the suit property but he has not perfected his title by adverse possession, since he himself submitted applications Ex. P/23 to P/25 to the collector to allot the land to him on Patta. Eventually, learned trial court dismissed the suit. The appeal which was filed by plaintiff has also been dismissed by impugned judgment and decree. ( 5. ) IN this manner, this second appeal has been filed by the plaintiff. ( 6. P/23 to P/25 to the collector to allot the land to him on Patta. Eventually, learned trial court dismissed the suit. The appeal which was filed by plaintiff has also been dismissed by impugned judgment and decree. ( 5. ) IN this manner, this second appeal has been filed by the plaintiff. ( 6. ) THIS Court admitted this second appeal on the following substantial question of law : "whether learned two Courts below erred in substantial error of law by not decreeing the suit of perpetual injunction of plaintiff though found him to be in possession from 1978 to 2004 ?" ( 7. ) THE contention of learned counsel for the appellant is that two Courts below on the basis of the documentary evidence came to hold that the appellant is possessing the suit property and, therefore, it was incumbent upon the learned courts below to decree the suit of perpetual injunction. ( 8. ) ON the other hand, Shri T. M. Dhamdar, learned counsel for the respondent/state, argued in support of the impugned judgment and has submitted that plaintiff has not at all perfected his title by way of adverse possession and, therefore, rightly the suit has been dismissed by learned two Courts below. ( 9. ) HAVING heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed to the extent ;that plaintiff is entitled to a decree of permanent injunction. REGRADING SUBSTANTIAL QUESTION OF LAW : ( 10. ) ON going through the pleadings of the plaintiff, it is gathered that there is specific averments of his that he is possessing the suit property for last several years. Earlier, his father Bihari was possessing the same. On going through the revenue record which the plaintiff has filed from 1978 to 2004, it is gathered that the possession of the plaintiff has been mentioned and he is shown as trespasser. True, in between 1978 to 2004 for several times fine was imposed by Tahsildar against the plaintiff on account of encroaching the land of State Government but the fact remain as such that plaintiff is in settled possession of the suit property, though it cannot be said that his possession is peaceful and hostile to the State Government. True, in between 1978 to 2004 for several times fine was imposed by Tahsildar against the plaintiff on account of encroaching the land of State Government but the fact remain as such that plaintiff is in settled possession of the suit property, though it cannot be said that his possession is peaceful and hostile to the State Government. Since plaintiff is in settled possession of the suit property, I am of the view that he is entitled for a decree of perpetual injunction. ( 11. ) SUBSTANTIAL question of law is, thus, answered that since long settled possession of plaintiff from 1978 to 2004 has been proved by the revenue record Ex. P/1 to P/4, the plaintiff is entitled for a decree of perpetual injunction. The suit of plaintiff is, accordingly, partly decreed and it is held that he is entitled for a decree of perpetual injunction. However, the State Government shall be free to take possession back from plaintiff after adopting due procedure as prescribed under the law. ( 12. ) ON going through the record, it is gathered that plaintiff appears to be a member of Schedule Caste and is a landless person and except the suit property, he is not possessing any other agricultural land. To rehabilitate such type of persons, the State of madhya Pradesh has enacted The Madhya Pradesh Krishi Prayojan ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami adhikaron Ka Pradan Kiya Jana (Vishesh Upabandh) Adhiniyam, 1984. The rules namely The Madhya Pradesh Krishi Prayojan Ke liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Niyam, 1986 are also framed. The plaintiff, if so advised, may submit application under Section 7 of the said Adhiniyam to the authorised officer on or before 15th May, 2008. The authorised officer after holding due enquiry may decide the said application of the plaintiff in accordance with law and if the said authority comes to the conclusion that appellant is a landless person as envisaged under the said Adhiniyam and Rules, necessary order conferring bhumiswami right to him may be passed under the said Adhiniyam. ( 13. ) LET the decision be taken by authorised officer on or before 31st May, 2009. Till the application is decided, the respondent may not take possession from the plaintiff according to the procedure as prescribed under the law. ( 13. ) LET the decision be taken by authorised officer on or before 31st May, 2009. Till the application is decided, the respondent may not take possession from the plaintiff according to the procedure as prescribed under the law. It is, however, made clear that in case appellant fails to file application on or before 15/5/2008 the respondent shall be free to take the possession of the suit property after adopting due procedure of law. ( 14. ) WITH the aforesaid observations, this appeal is allowed to the extent indicated herein above. Looking to the facts and circumstances, parties are directed to bear their own costs.