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Madhya Pradesh High Court · body

2010 DIGILAW 758 (MP)

Devi Singh v. State of M. P.

2010-07-29

U.C.MAHESHWARI

body2010
ORDER (ORAL) 1. This appeal is preferred on behalf of appellant/plaintiff under section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 27.2.2007 passed by 1st Additional District Judge, Harda in regular Civil Appeal No. 31-A/2005, affirming the judgment and decree dated 27.7.2005 passed by Civil Judge Class-II Harda in Civil Suit No. 445-A/04, dismissing the appellant's suit filed for declaration and perpetual injunction with respect of the Government land bearing Survey No. 2/1G and 2/ID total area 7.84 acres situated in village Abgaonkhurd. 2. The facts giving rise to this appeal in short are that the appellant/plaintiff herein filed the suit for the abovementioned land declaring him to be Bhumiswami of such land with a prayer for perpetual injunction restraining the respondent and his officials to interfere in his possession of the same. As per further averments of the plaint, he being remained in long possession of the land since, last 35 years in the knowledge of the respondent and its officials and during this period, his possession was neither disturbed nor obstructed by them, he perfected his title on it as Bhumiswami by adverse possession. With these pleadings, the aforesaid suit is filed. 3. In the written statement of the respondent by denying the averments of the plaint in addition, it is stated that the appellant was never remained in lawful possession of such land. The same is recorded in the nan1e of respondent as Bhumiswarni in the revenue record. On various occasions, the proceedings for removal of his illegal possession from such land were held, the same were culminated against the appellant. Pursuant to that, in compliance of order, he has deposited the imposed fine. In such premises, it could not be said that the appellant has perfected his title or right of Bhumiswarni over the disputed land either by adverse possession or otherwise. In such premises, prayer for dismissal of the suit is made. 4. In view of the pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, the trial Court by holding that the appellant has not perfected his title or right to Bhumiswami over the land, dismissed his suit. In such premises, prayer for dismissal of the suit is made. 4. In view of the pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, the trial Court by holding that the appellant has not perfected his title or right to Bhumiswami over the land, dismissed his suit. On challenging such decree before the subordinate appellate Court on consideration, by affirming the same, such appeal has been dismissed, on which the appellant has come forward to this Court with this appeal. 5. Learned appearing counsel of the appellant after taking me through pleadings, available evidence and the exhibited documents said that the appellant has successfully proved his/perfected right as Bhumiswami by adverse possession, but contrary to such evidence and the existing legal position, the suit was dismissed by the trial Court and the appellate Court has also affirmed such decree on it's term. The same is not sustainable under the law. In continuation, he said that in any case, on the basis of long possession of the appellant over the land, his suit should have been decreed for the perpetual injunction. With these arguments he prayed for admission of this appeal on the substantial question of law proposed in the appeal memo. 6. Having heard, keeping in view the arguments advanced by the counsel, I have carefully examined the record and also perused the impugned judgments. 7. It is apparent from the impugned judgment that the appellant could not prove his case by producing any admissible and reliable documents showing the title of aforesaid land in his favour. On the contrary, as per findings of both the Courts below, given after taking into consideration the receipts of the fine, that the appellant's capacity over the land was remained as encroacher. As time to time by initiating the proceedings under section 248 of M.P. Land Revenue Code, by imposing the fine on him such possession was removed. In such premises, the Courts below concurrently had not found the legal or lawful possession of the appellant over the land. Besides this, on appreciation of the evidence concurrently it was held that the appellant has failed to prove the necessary ingredients of perfection of his right and title over the disputed land by adverse possession. 8. In such premises, the Courts below concurrently had not found the legal or lawful possession of the appellant over the land. Besides this, on appreciation of the evidence concurrently it was held that the appellant has failed to prove the necessary ingredients of perfection of his right and title over the disputed land by adverse possession. 8. It is settled proposition of law that concurrent findings of Courts below, based on appreciation of the evidence on the question of adverse possession being findings of fact, could not be interfered under section 100 of the Civil Procedure Code at the stage of second appeal as laid down by this Court in the matter of Seeganram v. Magnia, reported in 1986 (1) MPWN 87 and Ram Singh v. Kashiram, reported in 1997 Revenue Nirnaya 195. In such premises, in view of the aforesaid discussion, this appeal does not involve any substantial question of law requiring any consideration under section 100 of the Civil Procedure Code at this stage. 9. Apart the above, in any case the appellant was not found in legal possession of the same and whenever the possession of the parties is not lawful or legal, then the same could not be protected by issuing or granting perpetual injunction in his favour against the true owner or recorded Bhoomiswami of land. My such view is fully fortified by the decision of the apex Court in the matter of Gangubai Babiya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others, reported in AIR 1983 SC 742 in which some observations regarding this question has been made. Such principle is further followed by this Court in the matter of Kamal Singh v. Jairam Singh, reported in 1986 MPWN (1) Note 116. So in such premises, it is held that this appeal does not involve any substantial question of law. 10. In view of the aforesaid discussions and the legal position, in the lack of any substantial question of law, this appeal deserves to be and is hereby dismissed at the stage of motion hearing. In view of such dismissal. IA No. 6216/07 and IA No. 7897/10 do not require any further consideration hence, the same are hereby dismissed.