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Madhya Pradesh High Court · body

2009 DIGILAW 977 (MP)

Shanti Bai v. Rais Khan

2009-08-13

A.K.SHRIVASTAVA

body2009
ORDER 1. The defendants have knocked the doors of this Court by filing an appeal under section 100 of CPC assailing the judgment and decree passed by the learned Second Additional District Judge, Guna in Civil Appeal No. II-AI 1997 whereby the suit of plaintiffs-respondents has been decreed and the judgment and decree passed by learned trial Court dismissing the suit of plaintiffs has been reversed and set aside. 2. In brief the suit of plaintiff is that the original plaintiffs were Mustafa Khan, Hatim Khan, Jumman Khan and Waheed Khan. The original defendants are Shanti Bai, Prem Narayan, Bhujbal and Haricharan. Hustafa Khan, Hatim Khan and Jumman Khan are the sons of Shakkar Khan (Shakur Khan). Rustam Khan was also of son Shakur Khan. In brief the suit of plaintiffs is that they are the Bhoomiswami of the agricultural land which is the subject matter of the suit. According to the plaintiffs their father Shakur Khan was in the service of millitary and was a T.B. patient as a result of which he became infirm and ultimately at the age of 91 years he heavenly abode. It is the further case of the plaintiffs that possession of survey No. 1271, which is the part of suit land, was taken by the father-in-law of defendant No.1, namely, Dangal from Shakur Khan, by taking his undue advantage of his infirmity. Similarly, another survey No. 879, which is also the part of suit property, was illegally possessed by Radhey Lal in the year, 1957 and thereafter with the collusion of Patwari incorrectly got their name recorded as Shikimi (sub-tenant) in the revenue record. In the plaint, it has also been pleaded that said Dangal died 10 years prior to the filing of the suit (suit was filed on 26.4.1977) and defendant No.1 is his heir (daughter-in-law). After the death of Dan gal and Shakur Khan, no agreement was executed between plaintiffs and defendant No.1 to give the suit property on lease. 3. Defendant No.1 (Shanti Bai) submitted an application to record her name as Shikimi in the revenue record in place of deceased Dangal in the Court of Nayab Tahsildar, Raghogarh and also for conferral of Bhoomiswami right. This application was submitted on 11.3.1974 which was registered as Case No. 56-A-46174175 although defendant is not having any right, title and interest in the suit property and she is only a trespasser. This application was submitted on 11.3.1974 which was registered as Case No. 56-A-46174175 although defendant is not having any right, title and interest in the suit property and she is only a trespasser. Similarly, there was no privity of contract between defendant No.2 and Shakur Khan or plaintiffs nor the suit land was given to him on Shikimi basis. On these premised pleadings, it has been prayed by plaintiffs that they be declared Bhoomiswami ofthe suit property and possession be delivered to them. 4. During pendency of the suit one of the plaintiffs Mustafa died and his LRs. were brought on record. Similarly, on account of the death of defendant No.3 Bhujbal Singh his LRs were brought on record. 5. The defendants by filing written statement refuted the plaint averments and specifically pleaded that the suit is barred by time and further it has been denied that Shakur Khan was serving in military and was a disabled person. It has also been pleaded that said Shakur Khan submitted an application before Sub-Divisional Officer, Raghogarh to obtain possession and the Sub-Divisional Officer vide its order dated 23.7.1963 dismissed the application of Shakur Khan. 6. The learned trial Court after framing necessary issues recorded the evidence of the parties and after considering oral and documentary evidence as well as the pleadings of the parties held that the plaintiffs have failed to prove their case and eventually dismissed the suit. The plaintiffs, thereafter filed first appeal before learned First Appellate Court, which has been allowed by the impugned judgment and decree and the suit of the plaintiffs has been decreed. 7. In this manner, this second appeal has been filed by the defendants before this Court. On 12.8.2008 this Court admitted the Second Appeal on the following substantial questions of law : 1. "Whether the suit is not barred by limitation when the application of the plaintiffs for possession has been rejected by the revenue Court on 23.7.1963 and the suit was filed in the year 1977? 2. Whether the finding that Shakur Khan was disabled person is sustainable in the eye of law in the absence of any proof thereof?" 8. "Whether the suit is not barred by limitation when the application of the plaintiffs for possession has been rejected by the revenue Court on 23.7.1963 and the suit was filed in the year 1977? 2. Whether the finding that Shakur Khan was disabled person is sustainable in the eye of law in the absence of any proof thereof?" 8. The contention of Shri Roman learned counsel for the appellant is that the suit of the plaintiffs is barred by time for the simple reason that after having rejected the application of Shakur Khan to obtain possession of the suit property by the Court of Sub-Divisional Officer, Raghogarh on 23.7.1963, the present suit has been filed on 26.4.1977, and therefore, the same is ex facie barred by time and hence the learned First Appellate Court committed substantial error of law in decreeing a time barred suit. By addressing on substantial question of law No.2, it has been contended by learned counsel that in absence of any document, in order to demonstrate that Shakur Khan was a disabled person, holding him to be a disabled person by the learned first appellant Court is perverse. 9. On the other hand, Shri Sundaram learned counsel for respondents-plaintiffs has argued in support of the impugned judgment. 10. After having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the suit of the plaintiffs deserves to be dismissed. Regarding substantial question of law No.1: 11. On going through the certified copy of the order Ex. 0-2, dated 23.7.1963 passed by Sub-Divisional Officer, Raghogarh, this Court finds that an application was filed by Shakur Khan against Dangal Singh to obtain possession of the suit property. Bypassing the order on 23.7.1963 (Ex. 0-2) the Sub-Divisional Officer dismissed the said application. There is nothing on record to show that the said order of SDO (Ex. 0-2) was set aside in appeal, hence, it would mean that defendant No.1 continued in possession of the suit property. Needless to say that defendant No.1 and 3 are the heirs of Dan gal Singh. 0-2) the Sub-Divisional Officer dismissed the said application. There is nothing on record to show that the said order of SDO (Ex. 0-2) was set aside in appeal, hence, it would mean that defendant No.1 continued in possession of the suit property. Needless to say that defendant No.1 and 3 are the heirs of Dan gal Singh. Neither there is any pleading of the plaintiff nor there is any finding of learned First Appellant Court that before the death of Dan gal Singh, the suit property was being possessed by Shakur Khan or plaintiffs, and therefore, the suit of the plaintiffs is liable to be dismissed as time barred because they have not filed the suit for possession within 12 years of their dispossession. 12. Apart from this, no where in the entire plaint, the plaintiffs have pleaded any specific date of their dispossession, hence, their suit for possession cannot be decreed. According to me in order to obtain a decree of possession on an immovable property, the plaintiff is legally obliged to plead that on which particular date he was dispossessed from the suit property so as to compute the period of limitation and to ascertain whether the suit is within the period of limitation or not. The substantial question of law No.1 is thus answered that the suit of plaintiffs is time barred. Regarding substantial question of law No.2: 13. Although, it has been pleaded by plaintiffs that Shakur Khan was a disabled person but no document in this regard has been filed by the plaintiffs in order to demonstrate that how and in what manner Shakur Khan was a disabled person. Merely it has been pleaded that Shakur Khan was an infirm person would not be sufficient in order to hold that he was an infirm person and was unable to cultivate the land. It has also been pleaded by plaintiffs that since Shakur Khan was an employee of military, therefore, under section 74 of Madhya Bharat Land Revenue and Tenancy Act Samvat, 2007, lessee will not acquire any right. But there is no documentary evidence to demostrate that Shakur Khan was serving in the military. It has also been pleaded by the plaintiffs that Shakur Khan was a TB. patient and if that is position, certainly he must have been treated by some doctor. But there is no documentary evidence to demostrate that Shakur Khan was serving in the military. It has also been pleaded by the plaintiffs that Shakur Khan was a TB. patient and if that is position, certainly he must have been treated by some doctor. The plaintiffs have not filed even a single document or any prescription of any doctor in order to demonstrate that Shakur Khan was suffering from T.B. disease. No doubt the disability can be proved by adducing convincing oral evidence. But looking to the peculiar disease of TB., certainly there must be documentary evidence available with the plaintiffs and in these peculiar facts and circumstances according to me learned First Appellant Court erred in holding that on account of the disease of TB. Shakur Khan was a disabled person. The substantial question of law No.2 is thus answered that the finding of the Learned First Appellant Court holding that Shakur Khan was a disabled person, cannot be sustained in the peculiar facts and circumstances of the present case, in absence of any documentary proof. 14. For the reasons stated above, the impugned judgment and decree passed by Learned First Appellant Court is hereby set aside and the judgment and decree passed by the Learned trial Court dismissing the suit of the plaintiffs is hereby restored. The appeal is accordingly allowed. No order as to costs.