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Madhya Pradesh High Court · body

2009 DIGILAW 910 (MP)

Peetam Singh v. State of Madhya Pradesh

2009-08-03

U.C.MAHESHWARI

body2009
ORDER U.C. Maheshwari, J. 1. The appellants/plaintiff being aggrieved by the judgment and decree dated 23-12-2004 passed by District Judge, Seoni in Civil Regular Appeal No. 6-A/2003 affirming the judgment and decree dated 10-9-2003 passed by Ist Civil Judge Class I, Seoni in Civil Original Suit No. 21-A/99, dismissing his suit for declaration and perpetual injunction against the respondent, has filed this appeal. 2. The facts giving rise to this appeal in short are that the appellant herein filed a suit for declaration and perpetual injunction against the respondent contending that he being Bhumiswami is in possession of agricultural land bearing Survey No. 20 Area 4.00 hectare (Old Khasra Nos. 4/3 and 54/4) and cultivating the same. Earlier this land was in possession of his father Ghooman Singh, subsequently in family partition the same was given to him and after demise of his father before 30-32 years he is coming in possession of the land as Bhumiswami. It is further stated that in connection of the disputed land the revenue cases were instituted in the Court of Tehsildar, in which on earlier occasion fine of Rs. 500/- while on subsequent occasion Rs. 200/- were imposed against him. On coming to know that such land is belonging to the State Government then after giving the statutory notice to the State authority under Section80 of Code of Civil Procedure intimating them regarding perfection of his right as Bhumiswami by adverse possession he filed the suit declaring him to be the Bhumiswami of such land with a prayer for injunction restraining the respondent from interfering in his possession of the aforesaid land. 3. In the written statement of the respondent, by denying the averments of the plaint, it is stated that the disputed land is still recorded in the name of the State Government as Bhumiswami in the revenue records. The plaintiff had not taken any step at any point of time to get mutated his name for years together. The scheme regarding settlement of the land was carried out in such area for years together but even in that period the appellant had neither objected the title of the State Government nor instituted any proceeding for his mutation. In such premises the appellant did not possess any right, title or interest in the disputed land. With these averments the prayer of dismissal of the suit is made. 4. In such premises the appellant did not possess any right, title or interest in the disputed land. With these averments the prayer of dismissal of the suit is made. 4. After framing as many as seven issues and recording the evidence on appreciation of the same, the Trial Court has dismissed the suit holding the appellant has failed to prove the perfection of his right over the disputed land by adverse possession. On filing the appeal, after extending the opportunity of hearing, the same was also dismissed by the Appellate Court. Being dissatisfied with the concurrent findings of the Courts below regarding dismissal of his suit, the appellant has come forward with this appeal. 5. Shri A.D. Mishra, learned Counsel for the appellant after taking me through the pleadings, evidence recorded by the Trial Court and the documents available on the record, argued that in view of long possession of the appellant for more than thirty years over the disputed land there was sufficient circumstance before the Courts below to draw the inference that he has perfected his right and title against the respondent by adverse possession and in such premises the Court below ought to have decreed his suit but same has been dismissed by the Trial Court under the wrong premises and the Appellate Court has also committed error in affirming the same. He further said that the Appellate Court has committed grave error in dismissing his application under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure by which the appellant seeks permission to file some papers related to the proceedings conducted against him by Tehsildar for his removal from the disputed land treating him the encroacher over such land. Such documents are sufficient to prove the long possession of the appellant over the disputed land. Lastly, he said that keeping in view the admission of Patwari that appellant is in possession since 1994 but the same has not been considered with proper approach to grant the decree. With these submissions, he prayed to admit the appeal on the proposed substantial question of law mentioned in the appeal memo. 6. Having heard the Counsel at length, I have gone through the records and also perused the impugned judgments. With these submissions, he prayed to admit the appeal on the proposed substantial question of law mentioned in the appeal memo. 6. Having heard the Counsel at length, I have gone through the records and also perused the impugned judgments. It is apparent fact on record that the appellant has neither produced any document showing that long before, i.e., 30 years from the date of filing the suit he had declared himself to be the Bhumiswami under intimation to the authorities of the respondent and thereafter he remained in uninterrupted possession of such land for thirty years or more against the title of the respondent. Apart this the appellant did not have prove the continues long possession of 30 years by filing the copy of any revenue records or the Khasra entries. Besides this as per findings of both the Courts below based on appreciation of evidence the appellant could not prove the material ingredients of adverse possession. The proceeding treating the appellant to be encroacher on such land were also initiated not only once but twice, as stated by the appellant in the plaint itself. 7. So far dismissal of the appellant's application filed under Order 41 Rule 27 of Code of Civil Procedure is concerned, in this regard the Appellate Court has given the sufficient and convincing reasons in Paragraph 9 of the impugned judgment and the same do not appear to be perverse. 8. In view of the aforesaid discussion, I have not found any situation or circumstance, which giving rise to any question of law much less the substantial question of law. On the other hand the concurrent findings of the Court below on the question of adverse possession being findings of fact cannot be interfered at the stage of Second Appeal under Section 100 of Code of Civil Procedure as laid down by this Court in the matter of Seegnaram v. Magna reported in 1986 MPWN 87, and of Ram Singh v. Kashiram reported in 1997 RN 195. It is noted that as per decision of the Apex Court in the matter of Dudh Nath Pandey v. Suresh Chandra Bhattasali AIR 1986 SC 1509 , the concurrent findings on the question of limitation being findings of fact cannot be interfered under Section 100 of Code of Civil Procedure. It is noted that as per decision of the Apex Court in the matter of Dudh Nath Pandey v. Suresh Chandra Bhattasali AIR 1986 SC 1509 , the concurrent findings on the question of limitation being findings of fact cannot be interfered under Section 100 of Code of Civil Procedure. Apart this the concurrent findings based on sound appreciation of admission evidence cannot be interfered at the stage of second appeal as laid down by the Apex Court in the matter of Ishwardas Jain v. Sohan Lal reported in AIR 2000 SC 426 and of Santosh Hazari v. Purushottam Tiwari reported in AIR 2001 SC 965 . Hence, this appeal devoid of merits and the same deserves to be and is hereby dismissed at the initial stage of motion hearing. 9. The appeal is dismissed as indicated above.