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Madhya Pradesh High Court · body

2012 DIGILAW 86 (MP)

Mahesh Kumar v. M. P. Govt.

2012-01-18

N.K.MODY

body2012
JUDGMENT 1. The appeal was admitted by this Court on the following substantial question of law:- “Whether in the facts and circumstances of the case learned Courts below committed error of law in not granting the decree of permanent injunction in favour of appellant relating to the suit property?” 2. Being aggrieved by the judgment dated 30.3.2010 passed by Addl.District Judge, Susner in Civil First Appeal No. 6/2010, whereby the judgment dated 4.11.2009 passed by Civil Judge Class II, Nalkheda in Civil Suit No. 82-A/2008, whereby the suit filed by the appellant for declaration and permanent injunction was dismissed, was maintained, present appeal has been filed. 3. Short facts of the case are that the appellant filed a suit for declaration and permanent injunction on 27.9.2006 alleging that appellant be declared as owner of suit land measuring 0.65 acres of survey No. 352 situated at village Khelagaon, Tahsil Nalkheda, District Ujjain and respondents be restrained not to interfere into occupation of the appellant and also delete the name of Devasthan recorded in the revenue record. It was alleged that land bearing survey No. 352 was the ancestral property of the appellant. It was alleged that from the time of settlement in the year 2000 appellant is in occupation of the land. Prior to it Shivnarayan, father of the appellant was recorded as Bhumiswami alongwith his brothers. In Samvat 2007 the land was recorded in the name of Mohanlal S/o Rugnath and from Samvat 2008 name of Mohanlal was recorded as Pakka tenant. It was alleged that no part of survey No. 352 was recorded in the name of Maufi Devasthan or Mahadev Mandir. It was alleged that Zamindari Act came in force w.e.f.2.10.51. Thereafter name of Mohanlal was recorded as Bhumiswami, which continued. It was alleged that vide order dated 14.7.2006 passed by the Revenue Officer name of Devasthan Mahadev Mandir was recorded on the suit land and on that basis respondents are interfering into the possession of appellant. In the suit it was prayed that decree of declaration and permanent injunction as stated above be passed. 4. The suit was contested by the respondents by filing written statement, wherein plaint allegations were denied. It was denied that appellant is owner of the suit land. It was also denied that Mohanlal S/o Rugnath was recorded as Mourasi Kashtkar. In the suit it was prayed that decree of declaration and permanent injunction as stated above be passed. 4. The suit was contested by the respondents by filing written statement, wherein plaint allegations were denied. It was denied that appellant is owner of the suit land. It was also denied that Mohanlal S/o Rugnath was recorded as Mourasi Kashtkar. It was alleged that in the Samvat 2007 that suit land was recorded in the name of Milkiyat Sarkar Ehatnam Oqaf Department. It was alleged that this entry also continued in Samvat 2008. It was alleged that after enforcement of M.P. Land Revenue Code Mahant got no right in the suit property. It was alleged that prior to settlement old survey number of the suit land was 228 and in Sumvat 1966 the land was recorded in the name of Maufi Chabutara Shri Mahadevji and this entry continued upto 1952-53. It was alleged that Tehsildar issued a notice to the appellant, whereby appellant was asked to explain how name of appellant was recorded when the suit land was recorded in the name of Devasthan Mahadev Chabutara in the year 1966. It was alleged that since the appellant did not satisfy, therefore, Tahsildar corrected the entries accordingly. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court dismissed the suit against which appeal was filed, which was also dismissed, hence this appeal. 5. Learned counsel for the appellant argued at length and submits that judgments passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that since the name of appellant was recorded as Bhumiswami in the revenue record, therefore, both the Courts below committed error in not granting decree of permanent injunction when admittedly the appellant is in possession from the time of his predecessor-in-title. It is submitted that learned Courts below overlooked the principles of law laid down by the apex Court that a person in settled peaceful, effective and undisturbed possession cannot be evicted without following due process of law. It is submitted that right from the year 1950-51 appellant is in continuous, peaceful possession of the suit land. It is submitted that appeal be allowed and impugned judgment be set aside. 6. It is submitted that right from the year 1950-51 appellant is in continuous, peaceful possession of the suit land. It is submitted that appeal be allowed and impugned judgment be set aside. 6. Learned counsel for respondents submit that no illegality has been committed by the learned Court below in dismissing the suit filed by the appellant. It is submitted that the findings recorded are concurrent finding of facts, which requires no interference. It is submitted that appeal be dismissed. 7. From perusal of the record it is evident that to prove the case appellant has examined himself as PW-1, Shivnarayan father of the appellant as PW-2, Kailashchandra as PW-3, Kishanlal as PW-4, while respondents have examined Durga Prasad Patwari as DW-1, Apart from this appellant has filed the documents Ex.P/2 to P/19. Ex.P/1 is the order dated 14.7.2006 passed by Tahsildar, whereby name of appellant was ordered to be deleted from the revenue record. Ex.P/5 is the revenue record for Samvat 2007 i.e.1950-51, wherein name of Bhumiswami was recorded as Milkiyat Sarkar Ehatnam Oqaf Department, while the name of Mohanla S/o Rughnath was recorded as Pakka tenant. In Ex.P/6, which is the revenue record for the Samvat 2008 i.e.1950-51 name of Milkiyat Sarkar Ehatnam Oqaf Department Madhya Bharat Government is recorded as Bhumiswami and name of Mohanlala was recorded as Pakka tenant. Same position continued in Ex.P/7, which is for the year 2011 to 2020. Ex.P/9 is revenue record for Samvat 2021-2024, wherein name of Shivnarayan was recorded as Bhumiswami, which continued upto 2035, which is evident by Ex.P/10 and P/11. In Samvat 2032 name of Ramgopal was recorded as Bhumiswami as is evident from the revenue record Ex.P/12, which continued upto 1995 as is evident from Ex.P/13 to P/15. In the year 2000-2001 onwards name of appellant was recorded as Bhumiswami, which is evident from Ex.P/16, which continued upto 2004-2005. The documents, which has been filed by respondents are Ex.D/1 to D/6. As per Ex.D/1 name of Maufi Chabutara is recorded as Bhumiswami in Samvat 1966 i.e.year 1909-10. In Samvat 1981 name of Milkiyat Sarkar Ehatnam Oqaf Department was recorded and name of Ganpat was recorded as tenant. In Samvat 2007, which is the crucial year name of Milkiyat Sarkar Ehatnam Oqaf Department was recorded as Bhumiswami and name of Mohanlal was recorded as Morusi Kastkar. In Samvat 1981 name of Milkiyat Sarkar Ehatnam Oqaf Department was recorded and name of Ganpat was recorded as tenant. In Samvat 2007, which is the crucial year name of Milkiyat Sarkar Ehatnam Oqaf Department was recorded as Bhumiswami and name of Mohanlal was recorded as Morusi Kastkar. In samvat 2008 also the same position continued as is evident from Ex.D/4. Ex.D/5, which is the list of renumbering of survey numbers. Ex.D/6 shows that the name of appellant was recorded as Bhumiswami and by the order of Tahsildar name of Mandir Mahadevji as Bhumiswami and name of Collector is recorded as Manager. 8. From the evidence on record it is not clear that how the name of appellant was recorded for the first time in the year 2000-01 as is evident from ex.P/16. Prior to it, it was the name of Ramgopal and Goverdhandas was recorded as Bhumiswami. In the Samvat 2021 to 2024 name of Shivnarayan was recorded as Bhumiswami. No family tree was given by the appellant to demonstrate that the name of appellant was recorded being a legal representative. Since Shivnarayan is alive as he was examined as PW-2, therefore, in his presence how the name of appellant was recorded is a matter of surprise. From the document Ex.P/16 it is not evident that for recording name of appellant some order was passed by the Revenue Authorities. However, since the order Ex.P/1 has been passed by Tahsildar on a printed form, whereby it was directed that name of Mahadevji Mandir Platform be recorded and the record which was before the Tehsildar is not available before this Court. Therefore, in the facts and circumstances of the case this Court is of the view that learned Courts below were not justified in dismissing the suit filed by the appellant. Since the name of appellant was recorded in revenue record, therefore, learned Courts below were not justified in refusing the decree of permanent injunction. In view of this appeal filed by the appellant is allowed. Judgment and decree passed by learned Courts below is set aside. Substantial question is answered in favour of appellant. The impugned order Ex.P/1 passed by Tehsildar is set aside with a direction to the appellant to appear before respondent No.2 and explain his status and also explain how his name was recorded in Samvat 2000-01. Appellant is also to submit his family tree. Substantial question is answered in favour of appellant. The impugned order Ex.P/1 passed by Tehsildar is set aside with a direction to the appellant to appear before respondent No.2 and explain his status and also explain how his name was recorded in Samvat 2000-01. Appellant is also to submit his family tree. After submission of the reply and also after going through the entire record and also after recording of evidence if any respondent No.2 shall pass an appropriate order keeping in view the record for the relevant years and if the respondent No.2 is of the view that the name of the appellant was wrongly recorded as the property was belonging to temple, then the respondent No.2 shall proceed with the case for taking possession of the suit land in accordance with law. Appellant is directed to remain present before respondent No.2 on 8.4.2012. 9. With the aforesaid observations appeal stands disposed of. No order as to costs.