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2010 DIGILAW 869 (MP)

Gaya Prasad v. Pradumn Prasad

2010-08-27

U.C.MAHESHWARI

body2010
ORDER 1. The appellants/plaintiffs have filed this appeal under section 100 of Civil Procedure Code being aggrieved by the judgment and decree dated 2.7.2003 passed by 1st Additional District Judge to the Court of 1st Additional Court Judge, Rewa in Civil Regular Appeal No. 102-A/02. whereby the judgment and decree dated 23.1.1995 passed by 3rd Civil Judge Class-II Rewa in Civil Original Suit No. 57-A/93 dismissing the suit for declaration and perpetual injunction filed by Brajbhan the predecessor in title of the appellants against the respondents with respect of the property bearing Survey No. 71,72 total areas 0.47 acre situated at Mahajan Tola Rewa has been affirmed with some modification by granting limited perpetual injunction in favuur of the appellants. 2. The facts giving rise to this appeal in short are that above mentioned Brajbhan the precedessor in title of the appellant filed the above mentioned suit against the respondents contending that above mentioned property was initially owned by late Lalla Ram and Chintamani under the right of Bhoomiswami, from whom before 40-45 years ago he purchased the same in consideration of Rs.40/- and thereafter constructed a temporary residential house on it and since then Brajbhan the predecessor in title of the appellants and after his death the appellants are coming in possession of the same as owner of it and thereby they have perfected their right on it by adverse possession. The name of Brabhan is also recorded in the record of local authority the Municipal Corporation, Rewa. In the year 1991 Brajbhan was collecting the documents to construct a new house on such land on which he came to know that the Patta of such land is still recorded in the name of Lallaram and Chintamani and the respondent No.1 Pradumn Prasad son of said Lallaram by taking advantage of such entry of the record of rights initiated a proceeding in the month of September, 1992 before the Tahsildar for his mutation on the aforesaid land, on which late Brajbhan under the apprehension that he may be dispossessed from such property by the respondent filed the impugned suit for declaration and prepetual injunction declaring him to be the Bhoomiswami of such land and restaining the respondents from interfering in his possession of the same. 3. In the written statement of the respondent the averments of the plaint are denied. 3. In the written statement of the respondent the averments of the plaint are denied. In additional it is stated that the disputed land along with the house is the property of their ownership, as they have inherited the same from their father Lallaram and uncle Chintamani and accordingly they are coming in possession of the same. The family of defendant No.3 is residing in such house since long. It is also stated that Brajbhan being servant of their family the disputed premises was given to him for looking after the property and was never sold to him. In such premises no right or title has been acquired or perfected by Bhajbhan, the predecessor in title of the appellant and prayer for dismissal of the suit is made. 4. In pendency of the suit said Brajbhan had died on which his legal representatives the appellants had come on record. 5. In view of the pleading of the parties after framing the issues and recording the evidence on appreciation of the same the trial Court by holding that the appellants have failed to prove that they perfected their title over the property by adverse possession and holding their possession to be a permissive possession dismissed the suit. On which the appeal under section 96 of Civil Procedure Code was preferred before the sub-ordinate Appellate Court, on consideration the same was allowed in part and the judgment and decree of the trial Court regarding dismissal of the suit is modified and limited perpetual injunction is issued against the respondent restraining them that without following the prescribed procedure of law they shall not disposes the appellants from the disputed premises and the property. On which the appellants have come forward to this Court with his appeal. 6. Smt. Vandana Shroti, learned appearing counsel for the appellants, after taking me through pleadings of the parties, evidence available on the record said that on proper appreciation of the same the Courts below ought to have decreed the suit of the appellant for declaration and perpetual injunction as prayed but the same has been dismissed contrary to the available evidence and under the wrong premises. In continuation, it was said that the Courts below have committed error in holding that the appellants are being in permissive possession of the property and had not perfected their title by adverse possession. In continuation, it was said that the Courts below have committed error in holding that the appellants are being in permissive possession of the property and had not perfected their title by adverse possession. It was also argued that without considering the record of the local authority and the circumstances that all the requisite taxes were paid by the appellants or their predecessor, the suit has been dismissed contrary to such record. According to her the Courts below ought to have inferred the title of the appellant on the basis of the record of the local authority, the Municipal Corporation and prayed to admit this appeal on the proposed substantial questions of law mentioned the appeal memo. 7. Having heard the counsel, I have carefully examined the records of the Court below and perused the impugned judgments. It is apparent from the impugned judgment that after taking into consideration the deposition of Chandrika Prasad (DW 2), in which he stated that such property was purchased by his father from the predecessor in title of the respondents in consideration of Rs. 40/- but could not prove the same by any documentary or other admissible evidence by holding the possession of the appellants over the property to be permissive possession dismissed the suit. Apart this taking into consideration the circumstances 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 of 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 know ledge 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. Ram singh, 2000 (I) , JLJ 368 = 2000 (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 patties and such concurrent findings of the Court below on the question of adverse possession based on appreciation of evidence being finding of fact could not be interfered under section 100 of 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 RN 195. 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 at this stage. 8. So far arguments relating to the record of Municipal Corporation, Rewa in which the name of the predecessor of the appellant has been recorded is concerned, it is suffice to say that such record did/does not confer any right or title to the appellants in the property. Such record is maintained by the local authority only for fiscal purpose to pay the taxes, it is just like the revenue record, hence the same did/does not give any title to the appellants as laid down by the apex Court in the matter of Shambhu Prasad Singh v. Phool Kunwar reported in 1971 JLJ SN 95 = AIR 1971 SC 1337 . Even otherwise the concurrent findings of the Courts below with respect of the record of local authority which was kept only for fiscal purpose to fix the liability to pay the revenue in view of the decision of the apex Court in the matter of Corporation of the City of Bangalore v. M. Papaiah, reported in AIR 1989 SC 1809 being finding of fact could not be interfered at the stage of second appeal by invoking the provision of section 100 of Civil Procedure Code. So on this question also this appeal does not have any substantial question of law. 9. Besides the above, taking into consideration the long possession of the appellant over the property the limited perpetual injunction has been granted by the appellate Court in favour of the appellants restraining the respondents not to dispossess the appellants from the disputed property without following the prescribed procedure of law. 9. Besides the above, taking into consideration the long possession of the appellant over the property the limited perpetual injunction has been granted by the appellate Court in favour of the appellants restraining the respondents not to dispossess the appellants from the disputed property without following the prescribed procedure of law. Such approach also appears to be based on sound legal position as laid down by the apex Court in the matter of M. Kallappa Setty v. M. V. Lakshminarayana Rao, AIR 1972 SC 2299 . : 10. In such premises, I have not found any circumstance or substance ih the matter giving rise any question of law rather than the substantial question of law requiring any consideration at this stage under section 100 of Civil Procedure Code. Resultantly, this appeal being devoid of any such question is hereby dismissed at the stage of motion hearing. There shall be no order as to costs. 11. The appeal is dismissed as indicated above.