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Madhya Pradesh High Court · body

2010 DIGILAW 1184 (MP)

Govind Prasad v. Vidhata

2010-11-25

U.C.MAHESHWARI

body2010
ORDER 1. The appellant-plaintiff has directed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 30.9.09 passed by Additional Judge to the Court of Additional District Judge, Mauganj, district Rewa in Civil Regular Appeal No. 13-A/09, whereby allowing the appeal of the respondents Nos. 1 and2, the judgment and decree dated 1.10.08 passed by Civil Judge, Class-I, Mauganj in Civil Original Suit No. 11-A/03 decreeing the suit of the appellant for perpetual injunction refusing the prayer of declaration with respect of the disputed agricultural land, the entire suit has been dismissed. 2. The facts giving rise to this appeal in short are that the appellant herein filed the impugned suit for declaration and for perpetual injunction against the respondents contending that initially the disputed land described in the plaint was belonging to the Pawaidar. Under the authority of the Pawai in the year 1921 -1922 one Trivikram Prasad mortgaged the same with possession with his grandfather and since then through his predecessors of the family, he is coming in possession of such land. Subsequent to such mortgage said Pawaidar or his L.Rs. had never redeemed the same, on which the appellant has become the Bhumiswami of it. It is also stated that in the year 1956 such land was purchased by his Uncle Shobhnath from the family of the Pawaidar and since then he remained in possession of the same in his life and after his death the appellant is coming in possession of the same. During this period by spending the huge amount he developed the same. In such premises, even after protecting the right of Bhumiswami over the land by him, the Halka Patwari has recorded the same in the name of State of M.P. in the records of rights. It is also stated that in any case the appellant being in uninterrupted long possession of the disputed land as Bhumiswami in the knowledge of the official of the respondent No.3-State, he has perfected his title by adverse possession. Contrary to all such rights of the appellant, the respondent No.3 has allotted the aforesaid land to the respondent Nos. 1 and 2 on patta, on which to protect his right and possession of the land, he filed the impugned suit for declaration and perpetual injunction against the respondents. 3. Contrary to all such rights of the appellant, the respondent No.3 has allotted the aforesaid land to the respondent Nos. 1 and 2 on patta, on which to protect his right and possession of the land, he filed the impugned suit for declaration and perpetual injunction against the respondents. 3. In the written statements of respondent No.3 and the Tahsildar by denying the averments of the plaint, it is stated that initially such land was belonging to the Pawai but on abolition of the Pawai system, same was vested in the State of M.P. and since then it being remained in possession of the State of M.P. as Bhumiswami was also recorded in the records of rights accordingly. Mere on the basis of unauthorized possession the appellant for some time, it could not be inferred that he has perfected any right of title over the disputed, propel1y. It is also stated that in the year 1993 by initiating the proceeding under section 248 of the M.P. Land Revenue Code by imposition of fine, the appellant was dispossessed from the disputed land and accordingly he was not remained in possession of the same and prayer for dismissal of the suit is made. Some averments for allotment of such land on patta to the respondent No. 1 and 2 are also made in the written statement. 4. In the written statement of respondent No.1 and 2 it was stated that subsequent to abolition of Pawai, such land was vested in the State of M.P. and was never remained in the title or possession of the appellant. Subsequently the same was allotted with possession to them on patta by the State of M.P. Pursuant to that, they have become Bhumiswami of it. In such premises, by denying the averments of the plaint, the prayer for dismissal of the suit is made. 5. In view of pleading of the parties, after framing the issues, the evidence was recorded. On appreciation of the same, the trial Court dismissed the suit of the appellant for declaration but holding him in possession of the disputed land, decreed the same for limited perpetual injunction directing the respondents that without taking to recourse of the law, they shall not dispossess the appellant from the disputed land. On appreciation of the same, the trial Court dismissed the suit of the appellant for declaration but holding him in possession of the disputed land, decreed the same for limited perpetual injunction directing the respondents that without taking to recourse of the law, they shall not dispossess the appellant from the disputed land. On challenging such decree by the respondent No. 1 and 2 before the appellate Court on consideration the same was allowed and by setting aside the decree of the trial Court the entire suit of the appellant has been dismissed, on which the appellant has come forward with this appeal to this court. 6. Appellant's counsel by referring the pleading of the parties, evidence available on record and the exhibited documents, said that the court below ought to have decreed his suit after taking into consideration his long possession over the disputed land, for which sufficient oral evidence was adduced and such possession was also recorded in some khasras of the revenue records, hut contrary to such evidence mere on some assumption and imagination holding that after abolition of the Pawai system the land was vested in the State of M.P. as Bhumiswami and pursuant to that the same was allotted to the respondent No. 1 and 2 by the State, his suit was wrongly dismissed by both the Court below. In continuation he said that in any case in view of the available cogent and reliable evidence, showing his settled possession over the disputed land, the trial Court has rightly passed the decree for perpetual injunction by allowing his suit in pat1 hut contrary to such evidence, the same has been set aside by the appellant court under the wrong premises. He also argued that on the basis of khasra entries, there was sufficient circumstance to draw the inference that even after abolition of Pawai system of the then existing tenancy law and on coming into force the M.P. Land Revenue Code on 2.10.1959 by virtue of its section 158 he through his forefathers acquired the Bhumiswami rights. But such aspect was not considered while dismissing the suit, for declaration by both the Courts below and for perpetual injunction by the appellate Court. But such aspect was not considered while dismissing the suit, for declaration by both the Courts below and for perpetual injunction by the appellate Court. It was also argued that in any case that appellant being in long uninterrupted possession of the disputed land on completion of 30 years, from the year 1921-1922, had perfected the right of Bhumiswami against the State of M.P. by adverse possession but such aspect was not considered by the Courts below and prayed to admit this appeal on the proposed substantial question of law mentioned in para 9 of the appeal memo. 7. Having heard the counsel, keeping in view his arguments, I have gone through the records of Courts below alongwith the impugned judgments. 8. I have not found any inconsistencies in the findings of the appellate Court's judgment with the available evidence either in upholding the findings of the trial Court regarding dismissal of the suit for declaration or in setting aside the findings given by the trial Court for issuing perpetual injunction. 9. It is undisputed fact between the parties that initially during the period of the erstwhile State such land was belonging to the Pawai and subsequently, on abolition of Pawai, according to the case of the appellant, he being in possession of the land acquired the right of Bhumiswami over it, while as per case of the respondents in the lack of any admissible documentary evidence showing that at any point of time such land was either mortgaged or sold by Pawaidar or his family members to the appellant or his predecessors in title, it could not be deemed that the appellant was placed or remained in possession of the same. It is also the case of the respondent that in the year 1993 by initiating the proceeding under section 248 of M.P. Land Revenue Code unauthorized possession of the appellant from such land was removed. Pursuant to that, it could not be deemed that the appellant was remained in lawful possession of such land at any point of time. 10. It is also the case of the respondent that in the year 1993 by initiating the proceeding under section 248 of M.P. Land Revenue Code unauthorized possession of the appellant from such land was removed. Pursuant to that, it could not be deemed that the appellant was remained in lawful possession of such land at any point of time. 10. Taking into consideration the aforesaid circumstances both the Courts below have dismissed the suit of the appellant for declaration holding that at any point of time the appellant had not perfected the right of Bhumiswami by adverse possession or otherwise while the findings of the trial Court issuing perpetual injunction was set aside by the appellate Court saying that the appellant did not have any right or legal possession over the property which could be protected by issuing the perpetual injunction in his favour, Also taking into consideration on the aforesaid proceeding of Sec 248 of the M.P. Land Revenue Code and the principle laid down by the apex Court in the matter of Gangu Bai v. Sitaram reported in AIR 1983 SC 742 and by this Court in the matter of Kamal Singh v. Jairam, 1986 (I) MPWN 116 holding that the perpetual injunction could be issued to protect the legal right and lawful possession of the person over the property, if the same is not found to be established, then the perpetual injunction could be granted in favour of such party and against the true owner of the property like the respondent-State and the allottee herein claiming the right through State. In such premises, I have not found any circumstance or the substantial in the appeal giving rise to any substantial question of law rather than substantial question of law requiring any consideration at this stage under section 100 of the CPC. 11. In the lack of any documentary evidence or other admissible evidence conferring the right of Bhumiswami with respect of the disputed land in favour of the appellant, he is not entitled to get any benefit under section 158 of M.P.L.R.C. So on such question also this appeal is not involving any substantial question of law. 12. In view of the aforesaid discussion in the lack of any substantial question of law, this appeal being devoid of any merits, is hereby dismissed at the stage of motion hearing. 13. 12. In view of the aforesaid discussion in the lack of any substantial question of law, this appeal being devoid of any merits, is hereby dismissed at the stage of motion hearing. 13. There shall be no order as to costs.