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2009 DIGILAW 1335 (MP)

Surendra Kumar v. Mithlesh Kumari

2009-12-01

A.M.NAIK

body2009
Judgment ( 1. ) Heard on the question of admission. ( 2. ) This appeal has been preferred by the defendant against the decree granted in favour of the plaintiff/respondent No. 1 for declaration of Bhumiswami rights as well as perpetual injunction. Order of Naib Tahsildar,Basoda dated 6.8.83 has also been held to be void and ineffective. ( 3. ) Shri Brijesh Sharma, learned counsel for the appellant submitted that neither the plaintiff nor her power-of-attorney holder entered into witness box, therefore, the suit could not have been decreed in favour of the plaintiff. Reliance for this purpose is placed on 2005 (1) MPLJ 421 (Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others). Secondly, it is contended that the appellant purchased the suit land from one Rajjulal Bismillah vide registered sale-deed, who had acquired title by adverse possession. ( 4. ) Considered the submission and perused the record. ( 5. ) It may be seen that the plaintiff/respondent No. 1 was recorded as Bhumiswami in Khasra and Khatoni (Ex.P/3, P/4 and P/5). In her place name of defendant/appellant was substituted by Naib Tahsildar without any authority of law, which has rightly been so found by the Courts below. Thus, after such a finding, entry in favour of the defendant/appellant stands cancelled and entry in favour of the plaintiff/respondent stands restored. Absence of examination of plaintiff or her power-of-attoney has therefore no ill-effect on the decision. ( 6. ) Further it may be seen that the defendant/appellant has nowhere averred about suit land having been purchased by registered sale-deed. In the absence of such pleading no evidence about it, is liable to be considered. Thus, no fault can be found with the findings recorded by the learned Courts below on due appreciation of evidence on record. Relevant Khasra and Khatoni are on record and in view of provisions of section 117 of M.P. Land Revenue Code, they are presumed to be correct until contrary is proved. Since the defendant/appellant has failed to establish his title, his possession cannot be restored and the absence of the plaintiff or her power- of-attorney holder to lead personal evidence does not make any such difference. No substantial question of law is found in the appeal, which is dismissed summarily.