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2013 DIGILAW 1481 (MP)

Babulal v. Shivram

2013-11-28

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J. 1. Heard on the question of admission. This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 9.5.2007, passed in Civil Appeal No. 9-A/2006, by the II Additional District Judge (Fast Track) Ashta, District Sehore, arising out of judgment and decree dated 30.6.2005 passed in Civil Suit No. 24-A/1992 by the Court of Civil Judge Class-II, Ashta, District Sehore, by the defendants in the suit. 2. It is contended by the appellants/defendants that the respondent No. 1/plaintiff filed a suit for removal of the appellants/defendants from the disputed plot, delivery of the vacant possession of the land said to be encroached by the appellants/defendants as also for a permanent injunction. It was contended that the suit land was purchased by the respondent No. 1/plaintiff prior to the sale deed executed in favour of the appellants/defendants, in respect of the adjoining plot. When the construction was started by the appellants/defendants, apprehending that some part of the land purchased by the respondent No. 1/plaintiff might have been encroached, an application was made for demarcation of the land in the year 1990. The revenue authorities after giving notices to the parties concerned conducted a demarcation and it was found that the land belonging to the respondent No. 1/plaintiff measuring 1.5 meters x 12 meters was encroached by the appellants/defendants. Since the land of the respondent No. 1/plaintiff was illegally encroached by the appellants/defendants, the suit was required to be filed in the year 1992. During the pendency of the suit, the application for supply of the demarcation report was made by the respondent No. 1/plaintiff, but the concerned revenue authorities informed the respondent No. 1/plaintiff that the record of the demarcation proceeding was destroyed, therefore, the certified copy of the same could not be produced. It was, thus, contended that since the land of the respondent No. 1/plaintiff was illegally encroached by the appellants/defendants, the decree as referred to herein above be granted in his favour. 3. The suit was contested by the appellants/defendants by filing a written statement stating that they have not made any encroachment on the land purchased by the respondent No. 1/plaintiff. On the other hand, they said that the possession of the said property was with them even before the same was transferred in the name of the respondent No. 1/plaintiff. 3. The suit was contested by the appellants/defendants by filing a written statement stating that they have not made any encroachment on the land purchased by the respondent No. 1/plaintiff. On the other hand, they said that the possession of the said property was with them even before the same was transferred in the name of the respondent No. 1/plaintiff. It was contended that the demarcation proceeding was not done in accordance to law and, therefore, such a claim made by the respondent No. 1/plaintiff could not be granted. A plea was also raised that the suit was not filed within limitation, therefore, the same was liable to be dismissed. It was also contended that the appellants/defendants have not made the encroachment, on the other hand, some other person has made the encroachment. It was contended that there was a dispute between the respondent No. 1/plaintiff and other neighbours residing in the said area and in that matter, a compromise had entered into between the parties, therefore, no cause was available to the respondent No. 1/plaintiff to file the suit against the appellants/defendants claiming such relief. 4. The trial Court after framing the issues recorded the evidence, came to the conclusion that the respondent No. 1/plaintiff could not prove the ownership over the land bearing Survey No. 411/2/2, area 0.03 decimal. However, it was found on the basis of certain reports of demarcation that the part of the land belonging to the respondent No. 1/plaintiff was encroached by the appellants/defendants and to that extent a decree was granted. It was decreed that the appellants/defendants were required to deliver back the possession of the land encroached by them as mentioned in the decree to the respondent No. 1/plaintiff and the appellants/defendants were also restrained permanently to interfere in such possession on the land of the respondent No. 1/plaintiff. 5. Feeling aggrieved by the refusal to grant of a complete decree as claimed in the suit, the respondent No. 1/plaintiff and feeling aggrieved by the decree granted by the trial Court, the appellants/defendants both have filed appeals against the judgment and decree of the trial Court before the first appellate Court. 5. Feeling aggrieved by the refusal to grant of a complete decree as claimed in the suit, the respondent No. 1/plaintiff and feeling aggrieved by the decree granted by the trial Court, the appellants/defendants both have filed appeals against the judgment and decree of the trial Court before the first appellate Court. It will not be out of place to mention here that the issue with respect to the claim made by the appellants/defendants that the suit filed by the respondent No. 1/plaintiff was barred, was not considered nor any issue was made in that respect by the trial Court. At that stage, no steps were taken by the appellants/defendants to get the issue framed in that respect. No evidence to this effect was produced during the course of the trial. The first appellate Court after considering the rival submissions of the parties, reached to the conclusion that when the commission was directed by the trial Court on an application made by the respondent No. 1/plaintiff, only after grant of leave to him to that effect by this Court in a Writ Petition filed under Article 227 of the Constitution of India, the report was submitted categorically holding that the land in possession of the appellants/defendants was more than what was purchased by them under the sale deed. This particular commission report was never called in question nor was disputed by the appellants/defendants. As a result, believing on the said report, the learned lower appellate Court reached to the conclusion that unauthorisedly the land of the respondent No. 1/plaintiff was taken in possession by the appellants/defendants and if the trial Court has granted a decree of delivered of possession of the said land no wrong was committed. The learned lower appellate Court after marshaling the evidence available on record, reached to the conclusion that no error was committed by the trial Court in granting the decree partially in favour of the respondent No. 1/plaintiff and dismissing rest of the claim made in the plaint. On the basis of these findings, the learned lower appellate Court dismissed the appeal of the appellants/defendants as also the appeal filed by the respondent No. 1/plaintiff. 6. This second appeal is against the judgment and decree of the lower appellate Court passed in appeal filed by the appellants/defendants. On the basis of these findings, the learned lower appellate Court dismissed the appeal of the appellants/defendants as also the appeal filed by the respondent No. 1/plaintiff. 6. This second appeal is against the judgment and decree of the lower appellate Court passed in appeal filed by the appellants/defendants. It is, vehemently, contended by learned counsel for appellants that the fact relating to purchase of the land was never taken note of. It was never considered by the Courts below that the appellants/defendants were in possession of the land in dispute for a long period and even when this fact was within the knowledge of the respondent No. 1/plaintiff, no action was taken in that respect for claiming back the possession. Even the appellants/defendants have perfected their title over the land in dispute, on the basis of adverse possession, and as such, the decree of possession of land could not have been granted in favour of the respondent No. 1/plaintiff. It is further contended that since the issue No. 1 with respect to the title of the respondent No. 1/plaintiff over the land in suit was held against the respondent No. 1/plaintiff and the findings of the trial Court in this respect were concurred by the first appellate Court, there was no question of affirming the judgment and decree granted by the trial Court. In fact, the decree of the trial Court was liable to be set aside. 7. Such a submission of learned counsel for appellants is wholly misconceived. First of all, it is to be seen that though specific title was not held in respect of the land purchased by the respondent No. 1/plaintiff, but this fact was found proved that he was in continuous possession of the land described in the suit. A part of the said land was said to be encroached by the appellants/defendants. This particular aspect was also tested on the basis of evidence available on record and it was held that since dispossession of the respondent No. 1/plaintiff was subsequent, of which the notice was given to the appellants and immediately thereafter the suit was filed, the possession of respondent No. 1/plaintiff over the land in suit was to be restored. That being so, the findings of the two Courts below cannot be said to be perverse or bad in law. That being so, the findings of the two Courts below cannot be said to be perverse or bad in law. The other aspect is that if it was the claim made by the appellants/defendants that the suit was not filed within limitation or that the fact relating to dispossession of the respondent No. 1/plaintiff was well within the knowledge of the said respondent No. 1/plaintiff much prior to filing of the suit and despite this knowledge, the appellants/defendants have remained in possession of the suit property, it was necessary for them to get an issue framed in this respect and a trial on this basis should have been commenced. If despite the pleadings raised in the written statement, issue was not framed and no action was taken, no evidence to this effect was produced by the appellants/defendants, it has to be treated that such an objection or the plea was waived by the appellants/defendants and, therefore, on the principle of waiver, this plea was not to be considered by the first appellate Court nor by this Court in exercise of power under Section 100 of the Code of Civil Procedure. No substantial error of law is committed by the Courts below in passing the judgment and decree. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.