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2010 DIGILAW 1230 (MP)

Babu Singh v. Gorakh Singh

2010-12-14

U.C.MAHESHWARI

body2010
ORDER U.C. Maheshwari, J. 1. This appeal is directed on behalf of Appellant/Plaintiff under Section 100 of the Code of Civil Procedure being dissatisfied with the judgment and decree dated 14-10-2010 passed by 1st Additional District Judge, Raisen in Civil Regular Appeal No. 6-A/10 affirming the judgment and decree dated 1-5-2010 passed by 1st Additional Judge to the Court of 1st Civil Judge, Class-II, Raisen in Civil Original Suit No. 21-A/10 dismissing his suit against the Respondent No. 1 filed for declaration and perpetual injunction with respect of the land bearing survey Nos. 12 and 44 area 12 acres situated at Village Navli tahsil and District Raisen. 2. The facts giving rise to this appeal in short are that the Appellant herein filed the above mentioned suit against the Respondent No. l for declaration and perpetual injunction with respect of the abovementioned land, stating that he being title holder, is coming in possession of the land since long. As per further averments, the Respondent No. 1 his elder brother, having the nature of saint (Sanyasi) had not carried out any agricultural work in such land and in the year 1982, the Respondent No. l by leaving the village had become the missing person. Since then, the Appellant within the knowledge of the Respondent No. 1 being in possession of such land as owner of it cultivating the same and taking the crops peacefully without any interruption from the side of the Respondent No. 1. Accordingly, on completion of 12 years, he has perfected the title as Bhoomiswami over such land in the year 1993.' The Appellant came to know long before that the Respondent No. l had gone to Bharatpur and thereafter, he shifted to Kota where he resided, from where he came to village Neoli, in the year 2001, during that period he did not object the title and possession of the Appellant. It is also stated that since 1982 to 1991 when the Respondent No. 1 was not traced then, the Appellant got mutated his name on such land in the revenue record. The same was never objected at any point of time before 2-7-2008. It is also stated that since 1982 to 1991 when the Respondent No. 1 was not traced then, the Appellant got mutated his name on such land in the revenue record. The same was never objected at any point of time before 2-7-2008. As per further averments, on, enhancing the value and prices of the land in the market, the Respondent No. 1 with bad intention had given a criminal threat on date 2-7-2008 to the Appellant to dispossess him from the aforesaid land on which the Appellant has filed the impugned suit against the Respondent No. l for declaration and perpetual injunction, declaring him to be Bhoomiswami of such land and also for issuing perpetual injunction restraining the Respondent No. 1 from any interference in possession of the Appellant with respect of the disputed land. 3. In the written statement of the Respondent No. l, by denying the averments of the plaint, it is stated that the Appellant was never remained in possession of the disputed land in the capacity of it's Bhoomiswami. The Appellant was remained a person of checkered history of criminal activities like threat, dacoity and beating etc. In that connection, various criminal cases at different places of State of Madhya Pradesh and Rajasthan are pending against him. Due to such activities of the Appellant, the Respondent/Defendant No. 1 was feeling himself to be unsafe that is why he started to reside at Kota for his livelihood, but simultaneously he was cultivating his land either by himself or under his observation through a person on share basis, his sons were also assisting him in his business as well as in the agriculture. It is further stated that Appellant by practicing a fraud, forged and fabricated some documents with respect of the aforesaid land, and on the strength of such documents by giving some wrong information to the revenue Officers stating that the Respondent No. 1 had expired got mutated such land in his name. It is also stated that suit is filed barred by time. With these averments the prayer for dismissal of the suit is made. 4. The Respondent No. 2 being formal party, was remained ex parte through out and no written statement was filed on his behalf. 5. It is also stated that suit is filed barred by time. With these averments the prayer for dismissal of the suit is made. 4. The Respondent No. 2 being formal party, was remained ex parte through out and no written statement was filed on his behalf. 5. It is apparent from the record that the Appellant and the Respondent No. 1 being sons of Gokaran Singh are real brothers in relation and the disputed land upto the alleged mutation in the year 1991, was remained in the name of Respondent No. l as recorded Bhoomiswami in the record of rights in his absence at the instance of Appellant such disputed land was mutated in the name of Appellant without extending any opportunity of hearing to him. 6. In view of the pleadings of the parties, after framing the issues the evidence was recorded. On appreciation of the same holding the Appellant has failed to prove his title and possession over the disputed land either as perfecting the title by adverse possession or otherwise along with an observation that the Appellant has got mutated his name on such land in the year 1990-91 showing the Respondent No. 1 to be a dead person in his life time and dismissed the suit. On challenging such decree by the Appellant before the subordinate appellate Court, after extending the opportunity of hearing to the parties on re-appreciation of the evidence by affirming the decree of the trial Court, the appeal was dismissed on which the Appellant has come forward to this Court with this appeal. 7. Shri K. B. Bhatnagar. learned appearing counsel of the Appellant after taking me through pleadings of the parties, recorded evidence and the exhibited documents, said the Appellant has successfully proved that after leaving the village in the year 1982 the Respondent No. 1 was never returned to such village upto the year 2006 and since the year 1982 the Appellant is coming in continuous possession of such land as Bhoomiswami for more than 12 years without any interruption from any source in the knowledge of the Respondent No. 1 and thereby he had perfected his title over the land as Bhoomiswami by adverse possession. Such aspect was not taken into consideration by both the Courts below while dismissing his suit. Such aspect was not taken into consideration by both the Courts below while dismissing his suit. It was also argued that in any case, after leaving the village by the Respondent No. l, only the Appellant was the person who while remaining in possession of the land was cultivating the same. So in such premises, in any case he being in settled possession of such land could not be dispossessed by the Respondent No. l without adopting the recourse and procedure prescribed under the law. In such premises, to protect his possession the Courts below ought to have decreed his suit for perpetual injunction against the Respondent No. l till some extent but the same has been dismissed with respect of such prayer also and prayed for admission of this appeal on the proposed substantial questions of law mentioned in para 4 of the appeal memo. In support of his argument, he placed reliance on a decision of the Apex Court in the matter of Rame Gowda (D) by L.Rs. v. M. Varadappa Naidu (D) by L.Rs. and Anr. reported in AIR 2004 SCW 4205 and of the Division Bench of this Court in the matter of Gajendra Singh v. Mansingh and Ors. 2000 (2) MPLJ 316 . 8. Having heard the counsel, keeping in view the arguments advanced by him, after perusing the records of both the Courts below along with the impugned judgments and the aforesaid case laws, I am of the considered view that at this stage this appeal is not involving any question of law rather than the substantial question of law requiring any consideration under Section 100 of the Code of Civil Procedure, even for admission of this appeal. 9. As per concurrent findings of the Courts below, the Appellant and the Respondent No. 1 both being real brothers in relation had their separate properties and accordingly the disputed land was remained to be exclusively property of the Respondent No. 1. The same was recorded in the name of Respondent No. 1 as Bhoomiswami in the revenue record, but in the year 1991, the name of the Appellant was mutated over the land at the place of Respondent No. 1 without giving any opportunity of hearing to such Respondent No. 1. The same was recorded in the name of Respondent No. 1 as Bhoomiswami in the revenue record, but in the year 1991, the name of the Appellant was mutated over the land at the place of Respondent No. 1 without giving any opportunity of hearing to such Respondent No. 1. As per further findings the Appellant by fabricating the false and forged document showing the Respondent No. 1 had dead and by placing the same in the office of the revenue authority, the Appellant got mutated such land in his name. I have not found any circumstance or documents on the record showing that at any point of time the Respondent No. 1 recorded Bhoomiswami handed over the possession of such land to the Appellant for any purpose either to cultivate or to look after the same. It could not be inferred by the Courts below that the Appellant has perfected his right either by adverse possession or otherwise contrary to the right and title of the Respondent No. 1. So, it could not be said that the Appellant had any legal title or the possession over the land. Mere on the basis of some entries in the revenue record, it could not be inferred that the Appellant has perfected his right over the disputed land against the Respondent No. 1 by adverse possession. As such revenue record does not confer any title to any one. The same is kept only for fiscal purposes as laid down by the Apex Court in the matter of Corporation of the City of Bangalore v. M. Papaiah and Anr. AIR 1989 SC 1809 in which it was held as under: The High Court has reversed the finding saying that the interpretation of the first appellate Court was erroneous. It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside. In the aforesaid case it was also held that the concurrent findings given by the Courts below on interpretation of the khasara entries being finding of fact could not be interfered under Section 100 of the Code of Civil Procedure. 10. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside. In the aforesaid case it was also held that the concurrent findings given by the Courts below on interpretation of the khasara entries being finding of fact could not be interfered under Section 100 of the Code of Civil Procedure. 10. In view of the aforesaid discussions, it has been revealed that the Appellant has neither acquired nor perfected his title over the disputed land. Such question was not left open by any of the Courts below. On the contrary on appreciation of the evidence concurrently it is held by both the Courts below that the Appellant has neither perfected his title over the land nor is in settled possession of the same. Accordingly the question of title has also been answered by the Courts below, therefore, the case law in the matter of Rame Gowda (D) by L.Rs. (supra) cited by the Appellant's counsel is not helping him, as such case was decided by the Apex Court taking into consideration the circumstances that the concerning Plaintiff was found in settled possession and the question of title was left open by the Courts below between the parties, which is not a situation here. Although, this Court did not have any dispute with respect of the principle laid down in the aforesaid cited case. In such premises, the another case law of this Court in the matter of Gajendra Singh (supra) is also not helping to the Appellant. Even otherwise, in view of the settled principle of law, the concurrent findings of the Courts below on the question of adverse possession based on appreciation of the evidence holding the person like Appellant is not in legal possession of the disputed property, being findings of fact could not be interfered under Section 100 of the Code of Civil Procedure as laid down by the Apex Court in the matter of Seeganram v. Magna, reported in 1986 MPWN I 87, in the matter of Ram Singh v. Kashiram, reported in 1997 Revenue Nirnay Page 195 and in the matter of Gaya Prasad and Ors. v. Pradumn Prasad and Ors. v. Pradumn Prasad and Ors. 2010 (4) M. P. L. J. 311, in which it was held as under: Apart this taking into consideration the circumstance that in spite having possession of the property since long at any point of time the Appellants or their predecessor-in-title in the knowledge of the Respondents or their predecessor had not declared themselves to be the owner of the property. So, in the lack of any specific date or time on which the Appellants declared themselves to be the owner of the property in the knowledge of the Respondents the Courts below after taking into consideration the principle laid down by the Apex Court in the matter of Roop Singh v. Ramsingh 2003 (3) SCC 708 held the Appellants being in permissible possession of the property had not perfected their title on it by adverse possession. Such approach of the Courts below appears to be in consonance with the evidence led by the parties and such concurrent findings of the Courts below or on the question of adverse possession based on appreciation of evidence being finding of fact could not be interfered under Section 100 of Code of Civil Procedure at the stage of Second Appeal as laid down by this Court in the matter of Seeganram v. Magnia, reported in 1986 MPWN 1 87 and Ram Singh v. Kashiram 1997 RN 159. The cited subsequent decision is also based on some Supreme Court decision. In such premises, this appeal is not involving any question of law rather than the substantial question of law on the ground of adverse possession requiring any consideration of law on the ground of adverse possession requiring any consideration at this stage. 11. In view of the aforesaid discussions, I have not found any perversity, infirmity or any circumstance in the matter giving rise to any substantial question of law requiring consideration at this stage under Section 100 of the Code of Civil Procedure. Pursuant to, this appeal being devoid of such question, is hereby dismissed at the stage of motion hearing. 12. There shall be no order as to the costs.