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2013 DIGILAW 202 (MP)

Pahalwan Singh v. Swaroop @ Ramswaroop

2013-02-15

U.C.Maheshwari

body2013
JUDGMENT 1. In view of listing the case IA No. 534/13, respondent’s application for early hearing does not require any further consideration, hence the same is hereby disposed of. 2. Appellant’s counsel is heard on the question of admission. 3. The appellants/defendants have preferred this appeal under section 100 of CPC challenging the sustainability of the impugned judgment dated 19.1.2011 passed by the Additional Judge to the Court of 1st Additional District Judge, Sironj in Civil Regular Appeal No. 46-A of 2010 affirming the judgment and decree dated 16.9.2008 passed by the Civil Judge, Class-1 Lateri in COS No. 5-A/06 whereby the suit of the respondents filed against the appellants for perpetual injunction with respect of the land described in the plaint has been decreed. 4. The facts giving rese to this appeal in short are that the respondents No. 1 and 2 herein were granted Patta on Government land bearing survey No. 6/1/8 area 1.000 hectare situated at village Sayeed Nagar by the competent authority of the State vide dated 22.5.2002. Pursuant to such Patta the possession of the land was also handed over to the respondent No. 1 on 18.8.2003 and since then they are coming in possession of the same. On creating hindrance by the appellants herein then the impugned suit for perpetual injunction restraining the appellants to interfere in the possession of the respondents with respect of the disputed land was filed. 5. In the written statement of the appellants by denying the right of the respondents No. 1 and 2, so also the proceeding regarding allotment of Patta in their favour, it is stated that initially the land of survey No. 6 area 17 hectare was allotted by the Tahsildar to various personal, against grant of such Patta some appeal was filed before the SDO, in which allotment order of the Tahsildar was set aside. In addition to it, it is also stated that they are in possession since last 40 years and they could not be dispossessed from their settled possession either by the respondent or any other authorities. With these submissions the prayer for dismissal of the suit was made. 6. In addition to it, it is also stated that they are in possession since last 40 years and they could not be dispossessed from their settled possession either by the respondent or any other authorities. With these submissions the prayer for dismissal of the suit was made. 6. In the light of the pleadings of the parties the issues were framed and evidence were recorded, on appreciation of the same by holding respondents No. 1 and 2 the patta holder of the disputed land from the respondent No. 3, their suit for perpetual injunction was decreed against the appellant. Being dissatisfied with such decree the appellants herein filed the appeal under section 96 of CPC before the District Court. On consideration by affirming such judgment and decree of the trial Court the same was dismissed, accordingly the respondents No. 1 and 2 were concurrently held in possession of the disputed land. Such concurrent findings of the Courts below are under challenged before this Court. 7. While arguing the case on admission the learned counsel of the appellant after taking me through the records of the Courts below along with the impugned judgment argued that the appellants being in settled possession of disputed land since last 40 years, their possession could not be disturbed or interfered either by the respondent No. 3 State or under its authority by respondents No. 1 and 2 on the basis of the Patta unless they are dispossessed by following the prescribed procedure of law. In continuation, he said that merely on the basis of the alleged Patta issued to the respondents No. 1 and 2 such respondents could not be deemed or presumed to be in possession of the same. In such premises there is sufficient circumstance to frame the substantial question of law in the matter and prayed to admit this appeal on the proposed substantial question of law mentioned in the appeal memo. 8. Having heard keeping in view the agruments, i have carefully gone through the record of the Courts below along with the impugned order so also the substantial question of law proposed by the appellants. 9. 8. Having heard keeping in view the agruments, i have carefully gone through the record of the Courts below along with the impugned order so also the substantial question of law proposed by the appellants. 9. It is apparent fact that from the isitial stage of the impunged suit till today no documentary evidence has been produced or proved by the appellants on record to show that from which source or on the basis of which document they have come in the possession of the disputed land. It is also apparent on record that in any of the Khasra entries in which the name of the appellants or any of them was recorded in column of Bhoomiswami or in kafiat as possession holder, is neither produced nor proved on record. So in the lack of such documentary evidence in support of the present appellants it could not be said that at any point of time the appellants remained in possession of the disputed land or any part of it. It is undisputed fact in the matter that initially the disputed land was belonging to the respondent No. 3 and under some provision of RBC the same was allotted to the respondents No. 1 and 2 as mentioned above and pursuant to such allotment the possession of the land was also handed over to them, the relevant documents in this regard were not only produced on record but the same have been proved by them. So in view of such admissible document of respondents No. 1 and 2, only by relying the oral testimonies of the appellants the Court below could not have held the possession of the appellants over the disputed land. In such premises the approach of the Courts below appears to be based on sound appreciation of the evidence as well as the legal position. I have also not found any circumstance to frame the question of law rather than substantial question of law under section 100 of CPC. 10. In such premises the approach of the Courts below appears to be based on sound appreciation of the evidence as well as the legal position. I have also not found any circumstance to frame the question of law rather than substantial question of law under section 100 of CPC. 10. So far the question of law proposed by the appellants’ counsel on the basis of section 248 of M.P. Land Revenue Code is concerned, such provision is very different and could be invoked by the State Authority for taking the possession of the Government land from the encroacher, which is not the subject matter of the impugned suit and therefore, there is no circumstance to frame such substantial question of law in the matter. 11. Apart from the above, the concurrent finding of the Courts below on the question of possession in favour of the respondents No. 1 and 2 being finding of fact could not be interfered under section 100 of CPC in the light of the dictum of the Apex Court in the matter of Kishanlal v. Ram Rao reported in AIR 1981 SC 1183 , in which it was held as under: “We feel that it may not be necessary to go to that extent because the amendment, if liberally construed, as indicated above includes the possession by plaintiff No. 1 and therefore there was no error of law in the finding of the Court below so as to invoke the second appellate jurisdiction of the High Court. We might mention hereby that the trial Court had given a categorical finding that defendant No. 2 had no title to the land in question nor was he in possession of it and that plaintiff No. 1 was in possession of the property at the date of the suit. In this connection, the trial Court observed as follows: “Thus on the whole, it is difficult to hold that defendant No. 2 was in possession and that too as owner or adversely to the plaintiffs and Radhabai. Hence, for this, and for reasons already noted, it is more probable that the plaintiff No. 1 was in possession of the property at the date of suit.” On arising the occasion aforesaid dictum is further followed by this Court in the matter of Ram Manohar Patel Vs. Ram Prasad Patel and others reported in 2010(2) MPLJ 636 . Hence, for this, and for reasons already noted, it is more probable that the plaintiff No. 1 was in possession of the property at the date of suit.” On arising the occasion aforesaid dictum is further followed by this Court in the matter of Ram Manohar Patel Vs. Ram Prasad Patel and others reported in 2010(2) MPLJ 636 . In view of the aforesaid discussion and position, I have not found any substance or situation in the matter giving rise to any question of law rather than substantial question of law, consequently this appeal being devoid of any merits is hereby dismissed at the stage of motion hearing.