Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 929 (MP)

State of M. P. v. Mangilal S/o. Ganeshji

2011-08-12

A.K.SHRIVASTAVA

body2011
ORDER A.K. Shrivastava, J. 1. This appeal has been filed by defendant-State Government assailing the judgment of reversal passed by learned First Appellate Court allowing the appeal of plaintiff and thereby reversing the judgment and decree passed by learned trial Court dismissing his suit. 2. In brief the suit of plaintiff is that the suit property which is agricultural land and the description whereof has been mentioned in the plaint and which is the subject-matter of the suit is in possession of plaintiff since 1935-36 i.e. for last 50-51 years prior to the date of filing of the suit which was filed on 20-1-1986. According to the plaintiff after putting hard labour by flowing his sweat he made the land in question cultivable and his possession is hostile against the State and he has acquired Bhumiswami right by adverse possession. 3. Naib-Tehsildar Ratlam, issued a notice under section 248(1) of the M.P. Land Revenue Code, 1959 (in short the Code) to the plaintiff which he replied on 10-2-1975 but de hors to the law on 13-8-1975 said Naib-Tehsildar imposed a fine of Rs. 1,500/- on plaintiff and by passing further an order to remove the possession over the suit property. Hence, the present suit has been filed by the plaintiff. 4. By amending his plaint it has been pleaded by the plaintiff that Thakur Narendra Singhji entered into an agreement of sale with plaintiff ' Rs. 500/- per bigha agreed to sell 5 bighas land for a consideration of Rs. 2500/- on Akshay Tritiya in the year 1935-36. A sum of Rs. 500/- was obtained as advance by said Thakur Narendra Singh and thereafter he delivered the possession of the suit property to the plaintiff. For the balance amount of consideration Rs. 2,000/- it was agreed between the parties that it shall be paid by the plaintiff in 15 instalments ' Rs. 135/- per year. A document to that effect Ex.P/1 was executed by said Narendra Singh in favour of plaintiff. Hence, it has been prayed by the plaintiff that he is entitled for the declaration that he has acquired Bhumiswami right by adverse possession and the order passed by Naib-Tehsildar Ratlam, dated 13-8-1975 is ineffective. A decree of permanent injunction has also been sought that defendant shall not interfere in the possession of plaintiff on the suit property. 5. Hence, it has been prayed by the plaintiff that he is entitled for the declaration that he has acquired Bhumiswami right by adverse possession and the order passed by Naib-Tehsildar Ratlam, dated 13-8-1975 is ineffective. A decree of permanent injunction has also been sought that defendant shall not interfere in the possession of plaintiff on the suit property. 5. The State Government by filing written statement refuted the plaint averments. Although it has been specifically admitted by him that for last 12 years the plaintiff is possessing the suit property. In the written statement it has been prayed that the suit be dismissed. 6. The learned trial Court on the basis of the averments made in the plaint and denial in the written statement framed necessary issues and after recording the evidence of the parties dismissed it. 7. The plaintiff assailed the judgment of learned trial Court dismissing his suit by filing first appeal. The learned First Appellate Court by the impugned judgment allowed the appeal of plaintiff by passing a decree of injunction. 8. In this manner this second appeal has been filed by the defendant-State Government. 8A. This Court on 7-10-1999 admitted this second appeal on the following substantial question of law: Whether a decree for permanent injunction alone, was rightly granted by the Lower Appellate Court in favour of Respondent/ plaintiff? 2. Whether the findings recorded by Lower Appellate Court are illegal and perverse? 9. Shri. Mitha learned Government Advocate has submitted that learned First Appellate Court was not correct in passing the decree of injunction and the findings of learned Appellate Court are illegal and perverse. 10. None has put appearance on behalf of respondent though served. 11. Having heard learned Government Advocate and after perusing the record I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No. 1. 12. On bare perusal of the findings recorded by learned First Appellate Court from para 5 onwards this Court finds that defendant-State Government has admitted the possession of plaintiff for 12 years prior to the date of the filing of the suit which was filed on 20-1-1986. I have also gone through the written statement and on bare perusal of para 4 of it, this Court finds that specifically the possession of plaintiff for last 12 years as trespasser has been admitted by the defendant-State Government. I have also gone through the written statement and on bare perusal of para 4 of it, this Court finds that specifically the possession of plaintiff for last 12 years as trespasser has been admitted by the defendant-State Government. The learned First Appellate Court on scanning the oral and documentary evidence in para 7 has recorded a finding that in Samvat 2020-21 i.e. 1963-64 the name of Thakur Narendra Singh is entered in the revenue record as Bhumiswami in the revenue record. Earlier to it in the year 1956-57 in the Khasra (revenue record) Ex.P/6 the name of Thakur Narendra Singh has been mentioned on the suit property. Thus, according to learned First Appellate Court from the record it is proved that from 1956-57 to 1963-64 the suit property has been recorded in the name of Thakur Narendra Singh, and when the suit property came in the ownership of State or when the Bhumiswami rights of Thakur Narendra Singh were extinguished, the defendant-State Government has not filed any document in this regard. According to me since the entire revenue record is in power and possession of the State Government therefore, it was bounden duty of the State Government to produce that record in the Court which could throw sufficient light on the controversy and the defendant-State Government cannot be heard to say, relying upon the abstract doctrine of onus of proof that it was no part of its duty to produce that record unless he was called upon to do so. In this context I may profitably place reliance on the decision of Supreme Court Hiralal and others vs. Badkulal and others, AIR 1953 SC 225 and also the judgment of T. S. Murugesam Pillai vs. M. D. Gnana Sambandha Pandara Sannadhi and others AIR 1917 PC 6. According to me if a party is in possession of best evidence which would throw sufficient light on the issue in controversy is withholding it the Court should draw an adverse inference against him notwithstanding that onus of proof does not lie on him. In this context I may profitably place reliance on the decision of Supreme Court Gopal Krishnaj Ketkar vs. Mohamed Haji Latif and others, 1969 MPLJ (SC) 271 : AIR 1968 SC 1413 . 13-15. The defendant-State Government in its written statement is claiming the suit property its own. In this context I may profitably place reliance on the decision of Supreme Court Gopal Krishnaj Ketkar vs. Mohamed Haji Latif and others, 1969 MPLJ (SC) 271 : AIR 1968 SC 1413 . 13-15. The defendant-State Government in its written statement is claiming the suit property its own. Since it is borne out from the record that upto 1963-64 the land was recorded in the name of Thakur Narendra Singh as Bhumiswami in the revenue record, then how and in what manner and by which order it was recorded to be of the State Government later on in the revenue record. There is a complete procedure under the M. P. Land Revenue Code 1959 (in short the Code) that if a wrong or incorrect entry is made in the revenue records prepared under section 114 by an Officer subordinate to Tehsildar, the Tehsildar may direct necessary changes to be made in the revenue record in red ink after making such enquiry from the person concerned as he may deem fit after giving due written notice. In this context section 115 of the Code may be seen. The Division Bench of this Court in Shiv Narain vs. Tahsildar, Gwalior, 1961 MPLJ 963 : 1960 JLJ 1016 by analyzing section 50 of Madhya Bharat Land Revenue and Tenancy Act which is equivalent to the provision of section 115 of the present Code has held that without issuing any notice to the person aggrieved the revenue record cannot be corrected and an enquiry should have been held before passing any order. This Division Bench decision of Shiv Narain (supra) has been followed later on in several judgments of this Court. 16. The learned First Appellate Court in para 8 of the impugned judgment has rightly arrived at a finding that the possession of plaintiff is shown to be that of encroacher and the Tehsildar initiated enquiry under section 248 of the Code against him, but, how and in what manner and when the disputed land vested in the State, there is nothing on record, and because the defendant-State Government is having the entire record with it should have filed it in the Court. Hence, learned First Appellate Court rightly came to hold that the suit property is not a government land and the plaintiff cannot be held to be a trespasser against the State-Government. Hence, learned First Appellate Court rightly came to hold that the suit property is not a government land and the plaintiff cannot be held to be a trespasser against the State-Government. This finding of learned First Appellate Court is not required to be interfered with. 17. The learned First Appellate Court on the basis of evidence of plaintiff as well as from the revenue record which is on record, rightly came to hold that the land in question was taken by plaintiff from Bhumiswami Thakur Narendra Singh and whether it has been rightly obtained by him, it is the interse dispute between Thakur Narendra Singh and plaintiff but, the defendant-State Government has no role in between the interse dispute between them. Said Thakur Narendra Singh has not come forward to assert that plaintiff is not the Bhumiswami of the suit property or his possession is illegal but certainly the State Government has no authority holding the plaintiff to be an encroacher holding the suit property to be government land. The suit property is government land is not at all has been proved by the State Government. Although Thakur Narendra Singh was the Bhumiswami this has been found to be proved by learned First Appellate Court. The learned First Appellate Court on the basis of evidence placed on record rightly came to hold that with the permission of the Bhumiswami Thakur Narendra Singh the plaintiff is in possession of the suit property and this is so proved from the evidence placed on record as well as the document Ex.P/1 executed by Narendra Singh in favour of plaintiff. These findings are pure finding of fact which has been rightly arrived at by learned First Appellate Court after appreciating and marshalling the evidence and by considering the various provisions of law and which cannot be set aside in the second appeal since there is no perversity in it. 18. The substantial question of law No. 1 is thus answered in affirmative that learned First Appellate Court rightly granted the decree of permanent injunction in favour of respondent holding him not to be a trespasser on the government land. Regarding Substantial Question of law No. 2. 19. 18. The substantial question of law No. 1 is thus answered in affirmative that learned First Appellate Court rightly granted the decree of permanent injunction in favour of respondent holding him not to be a trespasser on the government land. Regarding Substantial Question of law No. 2. 19. Learned Government Advocate could not point out that how and in what manner the impugned judgment of learned First Appellate Court and the findings rendered therein are illegal and perverse and, therefore, this question is answered that findings recorded by learned First Appellate Court are not illegal and perverse. 20. Resultantly, this appeal fails and is, hereby, dismissed but with no order as to costs because no one has put appearance on behalf of respondent.