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2011 DIGILAW 609 (MP)

Pratap Singh v. Mangal Khan

2011-05-18

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This second appeal has been filed at the instance of plaintiff against the reversing judgment of learned First Appellate Court allowing the appeal of defendants and setting aside the judgment and decree of learned Trial Court decreeing the suit of plaintiff. 2. The plaintiff-appellant filed suit for possession and injunction in respect of certain agricultural land which is the subject matter of the suit and the description whereof has been mentioned in the plaint. According to the plaintiff, he is the Bhumiswami of the suit property and the defendants who are father and son have encroached upon the suit property area 0.75 acres delineated in the map filed along with the plaint in Asad Samwat 2036 (June 1979). The suit has been filed on the basis of occupancy tenancy right which was conferred to plaintiff vide order dated 31.5.1974, passed by the Naib Tahsildar in Case No.7A/46/73-74 and it was directed that his name be entered as occupancy tenant in the revenue record. It is the further case of plaintiff that he submitted an application in the Revenue Court which was registered as Case No. 32A/12/1979-80 and the measurement of his land was made by the Revenue Court and it was found that defendants are illegally possessing 0.75 acres of land of which the plaintiff is the occupancy tenant. Despite the plaintiff served notice on the defendants they did not remove their illegal possession and hence, the suit has been filed for possession on the basis of title of occupancy tenancy right against the defendants who are strangers and trespassers according to the plaintiff 3. The defendants filed written statement and denied the plaint averments. According to them, the land was owned by one Harbans Singh who is residing for years together in Delhi and left the village Kanjiya. The inhabitants of the village have illegally taken possession of his land. The plaintiff and defendants have also encroached upon the land of said Harbans Singh. The defendants filed written statement and denied the plaint averments. According to them, the land was owned by one Harbans Singh who is residing for years together in Delhi and left the village Kanjiya. The inhabitants of the village have illegally taken possession of his land. The plaintiff and defendants have also encroached upon the land of said Harbans Singh. According to them, the Revenue Court wrongly found the plaintiff to be the occupancy tenant of said Harbans Singh and further that he is possessing that land as an occupancy tenant, The defendants further pleaded that they are possessing the suit property for last 25 years (the written statement was filed on 5.11.1981) and denied this fact that they encroached upon the suit property in June, 1979 (No Revenue record has been filed by them). A plea of adverse possession has also been set up by the defendants. Hence, it has been prayed that the suit be dismissed. 4. Learned Trial Court framed necessary issues and after recording the evidence of the parties came to hold that the plaintiff was possessing the suit property as occupancy tenant, however, the defendants have encroached upon the suit property and hence, decreed the suit. 5. The defendants filed first appeal before learned lower Appellate Court which has been allowed by the impugned judgment and decree and suit of plaintiff has been dismissed. However, learned First Appellate Court did not find that defendants have acquired the Bhumiswami right by way of adverse possession. 6. In this manner this appeal has been filed by the plaintiff. The defendants have not filed cross-objections claiming that they have acquired Bhumiswami right by adverse possession. Hence, the fact that they did not acquire the said right by adverse possession has attained finality. 7. This Court on 12.1.1988 admitted the appeal on the following substantial question of law:- Whether the document Ex. P-1 gives any or at least better title to the appellant as compared with the respondents and whether on that account the appellant is entitled to remain in possession of the suit lands?" 8. I have heard Shri J.L. Soni, learned counsel for the appellants and Shri Prashant Sapre, learned counsel for the respondents. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. 9. I have heard Shri J.L. Soni, learned counsel for the appellants and Shri Prashant Sapre, learned counsel for the respondents. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. 9. On bare perusal of the pleadings of plaintiff this Court finds that there is specific plea of the plaintiff in his plaint that he acquired occupancy tenancy right on Survey Nos. 251 area 0.344 acres, 252 area 0.328 acres, 253 area 0.368 acres, 254 area 0.242 acres, 255 area 0.385 acres, 256 area 0.146 acres, 257 area 178 acres, 260 area 0.321 acres and Survey No. 261 area 0.360 acres and there is an order dated 31.5.1974 of Naib Tahsildar, Khurai in this regard which is Ex. P-l holding that appellant is the occupancy tenant and is possessing these lands as occupancy tenant. On bare perusal of the certified copy of this order (Ex. P-l) this Court finds that on the basis of occupancy tenancy right the plaintiff claimed the said right and also prayed that his name be entered as occupancy tenant in the revenue record. Before passing this order the Naib Tahsildar issued the proclamation notice and invited objections but none of the inhabitants of the village including the defendants, although they are the residents of the same village, filed any objections. The Naib Tahsildar after adopting due procedure prescribed under the M.P. Land Revenue Code, 1959 (hereinafter referred to as "the Code") and also after calling the report of the Patwari found that the plaintiff is entitled to get his name entered as occupancy tenant since such right has been acquired by him and he is also possessing the lands in that capacity. The defendants did not assail the above said order of Naib Tahsildar before S.D.O. in appeal. 10. The stand of defendants in the written statement is that Harbans Singh was the Bhumiswami of the suit property and he started residing in Delhi, resultantly, the inhabitants of the village including the defendants have encroached upon the lands of Harbans Singh. Thus, the defendants themselves have stated that they are the tress-passers on the suit property. 11. Learned First Appellate Court in para-8 held that the plaintiff did not acquire occupancy tenancy right on the lands of Harbans Singh, Survey Nos. Thus, the defendants themselves have stated that they are the tress-passers on the suit property. 11. Learned First Appellate Court in para-8 held that the plaintiff did not acquire occupancy tenancy right on the lands of Harbans Singh, Survey Nos. 251 to 257, 260 and 261, the description of which is mentioned in the plaint (para-1) and also on the suit land (area 0.75 acres) which is the part of these lands. But, according to me, when the order of the Revenue Court was not challenged by the defendants and it became final and without challenging that order even by filing counter-claim in the Civil Court, learned First Appellate Court by misconstruing the order of Naib Tahsildar dated 31.5.1974 (Ex. P-1) has allowed the appeal of the defendants by dismissing the suit of plaintiff. 12. The order dated 31.5.1974 (Ex. P-1) was never challenged any where. It was not even challenged by Harbans Singh. Hence it became final and was also implemented by entering the name of the plaintiff in the Revenue record. In the said order it has been held that plaintiff is possessing the land as occupancy tenant. Thus, the plaintiff was having title of occupancy tenant which certainly is a better title than that of defendants who according to their own showing in the written statement, are the trespassers on the suit land. 13. The Supreme Court in Sundra Naicka Vadiyar (Dead) By LRs. and another v. Ramaswami Ayyar (Dead) By his LRs, AIR 1994 SC 532 has held that if a finding has been arrived at by ignoring an important document, High Court can interfere in the findings rendered by two Courts below. In the case of Sundra Naicka (supra) also there was an order of Revenue Court which was misinterpreted by the Courts below and therefore, High Court interfered in the judgment passed by learned two Courts below. The Supreme Court held that judgment of the High Court shows that there were good reasons for treating the finding on the question of possession recorded by the first two Courts to be vitiated. The Supreme Court held that judgment of the High Court shows that there were good reasons for treating the finding on the question of possession recorded by the first two Courts to be vitiated. The Supreme Court further held that if the finding has been arrived at by ignoring some of the documents which were vital for deciding the question of possession, the High Court rightly vitiated the finding on the question of possession recorded by Trial Court as well as First Appellate Court under section 100 C.P.C. The Apex Court affirmed the judgment of the High Court vitiating the said findings of two Courts below. 14. According to me, when the order of the Revenue Court (Ex. P-1) in favour of plaintiff became final and it was never challenged by the defendants either in the superior Revenue Court by filing the appeal under the Code or by filing counter-claim in the Civil Court praying to set aside the said order, the learned First Appellate Court was not justified in holding the said order is bad in law. 15. Admittedly in the order dated 31.5.1974 (Ex. P-1) the Naib Tahsildar held that plaintiff is possessing the lands mentioned in para-1 of the plaint (including the suit land) as occupancy tenant and thus, according to me the plaintiff is having better title than that of defendants who according to their own stand in the written statement are the trespassers. The Supreme Court in M. Kallappa Setty v. M. V. Lakshminarayana Rao, AIR 1977 SC 2299 has held that the plaintiff who is in possession of the suit property, on strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. According to me, same analogy can also be applied for suit for possession against a third person who is not having better title than that of plaintiff. 16. According to me, same analogy can also be applied for suit for possession against a third person who is not having better title than that of plaintiff. 16. A person who enters into peaceful possession of land claiming it as his own although he might not have any title to the land, can sue another person who has forcibly ousted him of possession and who has no better title to that land, because although he (in the present case the plaintiff) might not have any legal title, had at least possessory title and had commenced to prescribe for a legal title (see Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi Teli, AIR 1937 Nagpur 281). The case in hand is on better footings because in the instant case the plaintiff has been held to be the occupancy tenant on the lands (including suit land) by Naib Tahsildar vide its order dated 31.5.1974 (Ex. P-1) by holding further that he was possessing those lands in that capacity. Thus, the plaintiff was having better possessory title and when he has been dispossessed by the defendants (having no better title than him) he can sue for the restoration of possession. The learned trial Court has rightly decreed the suit for possession of the plaintiff. In this context it would be fruitful to place reliance on the decision of Supreme Court Nair Service Society Ltd. v. K. C. Alexander and others, AIR 1968 SC 1165 . 17. Thus, the substantial question of law is answered in favour of appellant and against the respondents and it is hereby held that appellant/plaintiff is having better title (occupancy tenant) as compared with the respondents on the basis of which he can retain the possession of the suit property. 18. This appeal is accordingly allowed. The impugned judgment and decree passed by learned First Appellate Court is hereby set aside and the decree passed by learned trial Court is hereby restored. The appellant shall be entitled for cost of this appeal Counsel fee of Rs.2,000/- if pre-certified.