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2009 DIGILAW 941 (MP)

Shekh Mubin v. Khurshid

2009-08-06

U.C.MAHESHWARI

body2009
ORDER 1. This appeal is derected by the plaintiff/ appellant under section 100 of the CPC being aggrieved by the Judgment and decree dated passed in Civil Appeal No. 33 - A/08 by District Judge Betul. affirming the judgment and decree dated passed in Civil Suit No. 16-A/08 by the IV Civil Judge, Class II, Betul dismissing the suit for declaration and perpetual injunction fild by the appellant. 2. The facts giving rise to this appeal in short are that appellant here in fild the suit against the respondents for declaration and perpetual injunction with respect to the agricultural land described in the plaint and recorded in the name of Late Khatoon Bi widow of Sheikh Qasim, the mother and predecessor-title of the respondent No.1 to 3. The same is situated in village Neempani. As per further averments of the plaint, Sheikh Ibrahim, the father of the appellant had some other land recorded in his name. On his demise on 6.1.98, appellant along with his sister, mother and brother inherited such land. The land of Khatoon Bi also remained in possession of the appellant. Khatoon Bi died on 25.12.05. As per further case of the appellant, the disputed land remained in his possession, within the knowledge of Khatoon Bi, continuously for the period between 23.9.87 to 23.9.99 and during that period, no proceeding for taking the possession was initiated by said Khatoon Bi against him. In such premises the possession was initiated by said Khatoon Bi against him. In such premises, he perfected his right of Bhumi Swami on such land by adverse possession. It is also stated that if Khatoon Bi had any right over such land then due to his uninterrupted possession over the land for more than 12 years, such right of Khatoon Bi has also been extinguished. In such permises, the appellant alleging that respondents No.1 to 3 had tried to dispossess him from such land on 24.2.06, has filed the suit. 3. In the written statement of the respondents, by denying the averments of the plaint, it is stated that Khatoon Bi after obtaining the decree for possession in her favour against Sheikh Ibrahim, the father of the appellant, up to the High Court in Second Appeal on 23.9.87, started execution proceeding in the Court of! Civil Judge Class-II Betul. In such execution proceedings, some obstruction was being created by the father of the appellant. Civil Judge Class-II Betul. In such execution proceedings, some obstruction was being created by the father of the appellant. Even after his demise, the appellant himself has created obstruction in such proceedings and in continuation of such activities, fild Civil Suit No. 79-NOI for declaration and perpetual injunction against them. The same was dismissed by the trial court vide judgment dated 24.11.03. On filing Civil Appeal No. 2-A/04 by the appellant, the same was dismissed vide judgment dated 15.3.04. Even the interlocutory injunction application filed by the appellant in such suit was dismissed vide order dated 10.7.02 and ultimately the Second Appeal filed against the judgment dated 15.3.04 was also dismissed by the High Court' on 20.7.04. Subsequent to dismissal of said earlier suit, the appellant again filed the present suit on false averments. The possession of the appellant over the land is also denied. The same is also barred by principle of resjudicata. In such premises prayer for dismissal of the suit was made. 4. After casting the issues and recording the evidence, on appreciation of the same, it was held by the trial Court that the appellant is neither in possession of the disputed land nor had perfected the right of Bhumi Swami by adverse possession. The execution proceedings filed by Khatoon Bi, the predecessor of the respondent, was held to be within limitation. The disputed property was not found to be the ancestral property of the plaintiff. Apart this, the suit is also held to be barred by the principle of resjudicata. Such judgment and decree of the trial Court was challenged before the first appellate Court. After hearing, on consideration, by affirming the judgment of the trial Court, the appeal was also dismissed, on which, the appellant/plaintiff has come forward to this Court with this appeal. 5. Learned counsel for the appellant after taking me through the pleadings, evidence and exhibited documents on record argued that since 1971, the father of the appellant remained in possession of the disputed land and after his death the appellant is in possession of the same. Even after obtaining the decree for possession in the earlier litigation by Khatoon Bi, the predecessor of the respondents, no execution proceeding was initiated within time, hence such decree has come to an end and became unexecutable. Even after obtaining the decree for possession in the earlier litigation by Khatoon Bi, the predecessor of the respondents, no execution proceeding was initiated within time, hence such decree has come to an end and became unexecutable. Besides this, between the period 1987 to 1999, the appellant remained in uninterrupted possession of the disputed land as Bhumi Swami within the knowledge of Khatoon Bi, the predecessor of the respondents and thereby, he perfected the right of Bhumi Swami against the respondents by adverse possession but without considering such aspect, the suit was dismissed by the trial Court and such findings are affirmed by the appellate. Court under wrong premises. However, he fairly conceded that his earlier suit in the year 1999 for perpetual injunction has been dismissed by the trial Court and such dismissal had been affirmed up to this Court in second appeal. With these submission, he prayed for admission of the appeal on the proposed substaintial question of law mentioned in the appeal memo. 6. Having heard the counsel at length, after perusing the record, I am of the considered view that this appeal does not have any question of law, much less, the substantial question of law requiring any consideration, under section 100 of the CPC at this stage. It is apparent that on earlier occasion, with respect of the disputed land, Civil Suit No. 13-A/77 (New No. I-A/ 79) was filed by Khatoon Bi the predecessor of the respondents against Sheikh Ibrahim, the predecessor of the appellant. The same was decreed by the trial Court vide judgment dated 4.5.82 (Ex.P/l) in which the decree for possession was passed in favour of Khatun Bi. Such decree was affirmed by the first appellate Court in Civil Regular Appeal No. 1O-Al82 vide judgment. dated 21.2.85 and was also affirmed by this Court in S.A.No.378/85 vide order dated 23.9.87 and as per findings of both the Courts below, the execution proceedings of such decree was filed by Khatoon Bi within limitation. During pendency of such execution proceeding, Civil Original Suit No. 79-A/01 for perpetual injunction was filed by the appellant. The same was dismissed by the trial Court vide judgment dated 24.11.2003. On filing the first appeal, the decree of such dismissal was affirmed by the appellate court in Civil Regular Appeal No. 2-A/04 by this Court. During pendency of such execution proceeding, Civil Original Suit No. 79-A/01 for perpetual injunction was filed by the appellant. The same was dismissed by the trial Court vide judgment dated 24.11.2003. On filing the first appeal, the decree of such dismissal was affirmed by the appellate court in Civil Regular Appeal No. 2-A/04 by this Court. Accordingly, in pendency of the execution proceedings of Khatoon Bi, the predecessor of the respondents, the earlier suit filed by the appellant was dismissed up to second appeal and subsequent to this, the instant suit has been filed. 7. On taking into consideration the factual matrix of the aforesaid earlier litigation, both the Courts below have dismissed the suit of the appellant holding that the same is barred by resjudicata and also appellant has not perfected the right of Bhumi Swami by adverse possession. Such finding being based on appreciation of admissible evidence could not be interfered under section 100 of the CPC in view of the law laid down by the Apex Court in the matter of Kondiba Dagadu Kadam V s. Savitri Bai Sopan Gurjar- AIR 1999 SC 2213 . 8. Apart the above, the findings of the Courts below on the question of limitation, based on factual matrix of the matter, being finding of fact, could not be interfered in the second appeal as laid down by the Apex Court in the matter of Dudh Nath Pandey Vs. Suresh Chandra Bhattasali AIR 1986 SC 1509 . 9. The finding with respect of resjudicata is also based on the earlier judgment and the pleadings, the same does not give rise to any substantial question of law in the present appeal. 10. The concurrent findings on the question of adverse possession being also based on evidence, could not be interfered by reappreciation of the evidence at the stage of second appeal as laid down by this Court in the matter of Seeganram V. Magna-1986 (I) MPWN 87 and in the matter of Ram Singh v. Kashiram-1997 RN 195. 11. In the aforesaid premises, I have not found any perversity or illegality in the impugned judgment giving rise to any question of law, much less, the substantial question of law requiring any consideration under section 100 of the CPC at this stage. 11. In the aforesaid premises, I have not found any perversity or illegality in the impugned judgment giving rise to any question of law, much less, the substantial question of law requiring any consideration under section 100 of the CPC at this stage. In such premises, this appeal being devoid of any merit, deserves to be, and is hereby dismissed at the stage of motion hearing.