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Madhya Pradesh High Court · body

2008 DIGILAW 419 (MP)

Bhagwandai v. State of M. P.

2008-03-13

P.K.JAISWAL

body2008
JUDGMENT 1. Heard on admission. 2. Appellants by this appeal challenging the judgment and decree dated 19.7.2002 passed by the Third Additional District Judge, Morena in Civil Appeal No. 5- A/2002, whereby the judgment and decree passed in Civil Suit No. 350-A/999 dated 21.12.2001, passed by First Civil Judge, Class II Morena has been affirmed and suit of the appellants was dismissed. 3. Brief facts of the case are that the appellants filed a suit for declaration and permanent injunction in respect of area of 16 biswa of Surevey No. 304 of Village Jewarakheda, Tahsil and District Morena on the ground that this land is adjoining to the bhumiswami land of the appellants and their ancestors were using the land for thrashing floor (Khaliyan) and in the revenue record of Survey No. 96 name of Kalyan Singh was recorded and after death of Kalyan Singh name of Rakhan Singh was recorded in the Khasra Panchshala of Sam vat 2007. The appellants are in possession of the land and therefore, they be declared owner and possession holder of the said land in question and respondent -State be restrained from allotting the land to any other person and not to interfere with the possession of the appellants. 4. The respondent State denied the averments made in the plaint and averred that land was declared as thrashing floor and villagers of Village Jewrakheda using the said land as Khaliyan. The appellants have not acquired any right, title and interest over the land in question nor patta in their favour can be granted because they are not the landless person and as per the Act of 1984 no patta in favour of the appellant can be granted. The land in question is recorded as Government land received for Khaliyan and, therefore, the appellants have no right-title and interest over the said land. 5. After bandobast old Survey No. 304 is changed to Survey No. 262 and 263. The area of Survey No. 262 is 0.015 R.A. and of 263 is 0.02 RA. The suit was filed on 30.7.1996. The trial Court vide order dated 18.12.1997 rejected the application for grant of temporary injunction. The name of Rakhan Singh is not recorded in Khasra Panchashala of Samvat 2007. In column No. 29 of Ex. P. 1 which is a Khasra Panchashala of Sam vat 1996, land is recorded as Patti Khaliyan. In Ex. The suit was filed on 30.7.1996. The trial Court vide order dated 18.12.1997 rejected the application for grant of temporary injunction. The name of Rakhan Singh is not recorded in Khasra Panchashala of Samvat 2007. In column No. 29 of Ex. P. 1 which is a Khasra Panchashala of Sam vat 1996, land is recorded as Patti Khaliyan. In Ex. P. 2 also the land is recorded as Khaliyan. EX.P.3 is the Khasra Panchashala of year 1994-1996 the name of Rakhan Singh and Banshidhar sons of Gulab Singh was recorded. In EX.P.8 the land is recorded as Khaliyan. No document for the period from Samvat 1997 to Samvat 2005 has been filed by the appellants to prove that their names have been continuously recorded in the revenue record nor any document has been filed to prove that Kalyan Singh was grandfather of plaintiff Rakhan Singh. 6. The trial Court after appreciating the evidence of Munnalal (P. W. 1), Ramcharan (PW2), Nawab (PW 3) and Ramgopal (PW 4) has held that land in question is Government thrashing floor (Khaliyan) for use of villagers of Village Jewarakheda and appellants failed to prove that they are in continuous possession of the land from last 65 to 70 years. 'The villagers of Village Jewarkheda are using the land for Khaliyan and the same was reserved for Khaliyan by the State Government under Section 237 of the M.P.L.R. Code, 1959 and appellants have not acquired any title by way of adverse possession over the suit land. With the above finding the trial Court dismissed the suit. 7. In an appeal the Lower Appellate Court after appreciating the judgment , and decree of the trial Court and after considering the oral and documentary evidence of the parties has held that Court has not committed any error in dismissing the suit and upheld the judgment and decree of the trial Court and dismissed the appeal of the appellant. 8. Learned counsel for the appellant drew my attention to the decision of this Court in the case of Chhitoo and others v. Sakharam and others, 1981 ill 487 and submits that the possession of Rakhan Singh was recorded in the revenue record and there is presumption of continuity and such presumption can be drawn both forward and backwards. 8. Learned counsel for the appellant drew my attention to the decision of this Court in the case of Chhitoo and others v. Sakharam and others, 1981 ill 487 and submits that the possession of Rakhan Singh was recorded in the revenue record and there is presumption of continuity and such presumption can be drawn both forward and backwards. In the case of Chhittoo and others (supra) the khasra of the years 1954 to 1963 record the name of Shrikrishna and after him Chhittoo as person in possession. This Court has held that if in khasra of latter years the entry showing Chhittoo (plaintiff-applicant No.1) to be in possession disappears, the commission by itself is not enough to destory the presumption of continuity of possession. The presumption of continuity can be drawn both forward and backwards and can be so drawn in view of the circumstances of the present case, especially in view of the stand taken by the defendant non-applicants that the plaintiff-applicants have been some times in possession and sometimes out of possession throughout the relevant period and also in view of their admission contained in the first information report and the application submitted to the Collector, referred to the above. This presumption stands further fortified by the affidavits submitted on behalf of the plaintiff-applicants. 9. Here in the present case the facts are different. No khasra panchshala for the period from Samvat 1997 to 2005 has been filed by the appellants and therefore, presumption of continuity cannot be drawn and appellants will not get any help from the said judgment. 10. The appellants failed to prove their continuous possession over the land in question to the knowledge of the respondent State and trial Court already rejected application for grant of temporary injunction long back in the year 1997. 11. Having considered the arguments made by the learned counsel for the appellants and looking to the reasons recorded by the trial Court as well as by the First Appellant Court I have no hesitation in holding that Courts below have not committed any error in dismissing the suit of the appellants. The concurrent findings of fact recorded by the Courts below by re-appreciating the evidence placed on record. In fact no substantial question of law arises in this appeal. The concurrent findings of fact recorded by the Courts below by re-appreciating the evidence placed on record. In fact no substantial question of law arises in this appeal. The detailed reasons recorded by the First Appellant Court in rejecting the appeal of the appellant is just and proper. The appeal filed by the appellants has no merit and is accordingly dismissed.