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2013 DIGILAW 736 (MP)

Devendra Kumar v. State of M. P.

2013-07-02

M.K.MUDGAL

body2013
JUDGMENT Mudgal, J. 1. The appellant/plaintiff has filed this appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 26.7.2004 passed by the Court of District Judge, Shivpuri (Smt. Renu Sharma) in Civil Suit No.18-A of 2003 dismissing the suit for declaration and permanent injunction. In this appeal, the appellant is referred as ‘plaintiff’ and respondent as ‘defendant’. 2. The facts in short giving rise to the filing of this present appeal are that the plaintiff instituted a suit for declaration of title and permanent injunction with respect to the agricultural land bearing Survey No. 52 area 0.55 Hectares (old No.67 and 69) situated in village Veeramkhedi Tehsil Kolaras District Shivpuri. It was alleged in the plaint that the plaintiff, his brother Ashok Kumar, Pramod Kumar and mother are Bhumiswami and in possession of the disputed land. It was further alleged that the plaintiff’s Grandfather and thereafter his father had been in possession of the suit land and had been cultivating the land for morethan 50 years. It was also alleged that on the basis of long possession, the plaintiff has acquired the right of Bhumiswami. The plaintiff’s forefathers prayed for allotment of the suit l and on patta but the defendant wrongly allotted 0.15 hectare land of the survey number in dispute to one Santosh Kumar Son of Shri Ratan Chand, even though on the basis of possession, the plaintiff had a preferential right to get the patta of the suit land. It was also pleaded that some other land of plaintiff’s ownership is situated adjacent to the suit land. On the above said submission, the suit for declaration of title and permanent injunction was filed by the plaintiff. 3. Denying the allegations made in the plaint, the defendant has submitted that the plaintiff or his forefathers have never been in possession of the disputed property for morethan 50 years as alleged in the plaint. The defendant has further submitted that the disputed property is of the ownership of the State Government. The plaintiff and his father encroached on the same. On the basis of encroachment, the plaintiff cannot acquire either Bhumiswami rights or any tenancy right. The defendant has further contended that the plaintiff is not entitled to get any relief as prayed for by him in the plaint. The plaintiff and his father encroached on the same. On the basis of encroachment, the plaintiff cannot acquire either Bhumiswami rights or any tenancy right. The defendant has further contended that the plaintiff is not entitled to get any relief as prayed for by him in the plaint. Moreover, the question related to the allotment of the land cannot be decided by a civil Court. Submitting the written statement, the defendant/State Government prayed for dismissal of the suit. 4. The following issues have cropped up for consideration in this appeal (I). Whether, the plaintiff has Bhumiswami rights in the disputed agricultural land? (ii). Whether, the plaintiff is entitled to get any relief in this case? (iii). Whether, the findings of impugned judgment and decree are not based on proper reasoning? 5. Learned counsel for the appellant has submitted that the plaintiff’s possession is admitted by the defendant in the written statement in spite of that decree for permanent injunction has not been granted in favour of the plaintiff. Learned counsel has further submitted that the findings recorded by the trial Court are not based on proper reasonings as the plaintiff is in settled possession for a long period and so the defendant State Government has no right to evict the plaintiff from the disputed land without following due process of law. 6. Learned counsel placing reliance on the judgment rendered in Second Appeal no.472 of 2003 Bhaiyalal v. State of M.P. Vide judgment dated 13.11.2006, Rame Gowda (D) by L.Rs v. M.Varadappa Naidu (D) by L.Rs and another 2004 (II) MPWN 25 = AIR 2004 SC 4609 and Shavaram alias Seva v. Deobai 2006 RN 245 = 2006 (2) MPLJ 450 has submitted that the decree for permanent injunction should be granted in favour of the plaintiff. 7. Refuting the arguments submitted by the appellant’s learned counsel, learned counsel for the defendant has submitted that the possession of the plaintiff is not settled possession on the disputed land. The status of plaintiff’s possession on the disputed land is simply to that of an encroacher who is not entitled to get either decree for permanent injunction or decree of Bhumiswami against true owner State as prayed by the plaintiff. The status of plaintiff’s possession on the disputed land is simply to that of an encroacher who is not entitled to get either decree for permanent injunction or decree of Bhumiswami against true owner State as prayed by the plaintiff. Learned counsel has further argued that the findings recorded by the trial Court are based on proper reasonings and no sufficient reason has been produced by the appellant/plaintiff to interfere in the impugned judgment and decree. 8. Heard learned counsels for the parties and perused the impugned judgment and evidence brought on record. 9. As alleged by the plaintiff in para 1 and 2 in the plaint, the disputed land bearing Survey No.52 area 0.55 Hectares (Old Survey No.67/69) has been in the possession of plaintiff for long I.e. morethan 50 years since the time of his father and Grandfather late Gulab Chand. The plaintiff has not made clear in the pleadings as to how, he got Bhumiswami rights in the disputed land whereas, admittedly, the land is recorded in Khasra as government land. Moreover, the plaintiff has not claimed that his ancestors have got the land on lease from the government as Bhumiswami rights. No source of origin of Bhumiswami rights has been pleaded by the plaintiff without which, no relief regarding Bhumiswami rights can be granted as prayed in the plaint. 10. The plaintiff has not produced any reliable and convincing document showing his possession for morethan 50 years on the disputed land since the time of his ancestors I.e. father and Grandfather. Ex. P/4 is the Khasra entries of the year 1971-72 to 1975-76 in which, name of plaintiff’s father Sualal is entered on the old Survey No. 69 in Column No. 12 as encroacher but no entry is made on the other Survey No. 67. Both survey numbers are shown as government land, on the basis of which, it is amply clear by Ex.P/1 that at first, the plaintiff’s father encroached on the land bearing Survey No. 69 only in the year 1972-73. Thereafter, plaintiff’s father encroached over the entire disputed land in the year 1989-90 to 1993-94 as shown in the Khasra Ex. P/2. No single document showing the possession of his Grandfather Gulab Chand has been produced on record by the plaintiff. The pleadings made by the plaintiff as regards more than 50 years old possession is totally baseless and hypothetical. Thereafter, plaintiff’s father encroached over the entire disputed land in the year 1989-90 to 1993-94 as shown in the Khasra Ex. P/2. No single document showing the possession of his Grandfather Gulab Chand has been produced on record by the plaintiff. The pleadings made by the plaintiff as regards more than 50 years old possession is totally baseless and hypothetical. Mere pleadings do not create any title, on the other hand, it should be proved by the cogent and credible evidence. In this case, the plaintiff has produced the document of Khasra entries Ex. P/2 to Ex. P/6 which are from 1972-73 onwards. First of all, the Khasra entries have not been produced in continuity which reflects that the possession of the plaintiff’s father or plaintiff himself has not been in continuation. Secondly, encroacher on the government land can never get Bhumiswami rights or any tenancy right against the true owner I.e State government. 11. In oral evidence, statement of plaintiff Devendra Kumar (PW 1), his brother Ashok Kumar (PW 2) and Purushottam Vaishya (PW 3) were got recorded. All the witnesses have deposed in their statements that the plaintiff and his ancestors have been in possession of the disputed land for more than 50 years but statements of the witnesses are not reliable as they could not have been witnessed as to what happened 50 years back. At the most, they can be the witnesses as to what happened some thirty or thirty five years back. Moreover, oral evidence can be easily fabricated against government or anyone. On behalf of the defendant, statements of Mohan Daulatani (DW 1) Tahsildar Kolaras District Shivpuri and Jagbhan Singh Patwari of the village concerned have been got recorded and documents Ex. D/1 to D/4 have been produced on record. Both the witnesses have deposed in their statements that the disputed land is the government land and plaintiff has no right in it. The plaintiff was only encroacher on the same. 12. Learned trial Court having discussed the oral and documentary evidence produced by the plaintiff as well as by the defendant in depth in paras 9 to 28 has discarded the plaintiff’s case and has recorded a finding that the status of the plaintiff is only to that of an encroacher on the government land and he has no Bhumiswami rights to the disputed land. 12. 12. The suit filed by the plaintiff herein is defective, as per para 5A of the plaint and entry of Khasra Ex.P/2 of the year 1989-90 to 1993-94 it becomes clear that a part of the area 0.15 Hectares of Survey No.52 was allotted by the competent authority to Santosh Kumar S/o Ratan Chand vide order dated 17.9.1989 in the case No. 312XA/88X89-19 but Santosh Kumar has not been made party in the suit whereas, he was party for the just decision of the case as Santosh Kumar has got Bhumi swami rights to a part of the land in the disputed survey number. Moreover, the plaintiff himself has stated in paras 1 and 2 of the plaint that the ownership of the disputed land belongs to him and his brother Ashok Kumar, Pramod Kumar and mother Smt. Laxmi Bai, they have not been made parties in the suit either as plaintiffs or as defendants. In such a situation, it is inferred that the plaintiff’s suit lacks the necessary parties of the subject matter. 14. By way of amendment introduced by para 5A in the pleadings, the plaintiff has tried to state that on the basis of possession, the disputed land should be settled in his name in the same way, as a part of the land has been allotted to Santosh Kumar. These averments make it clear that the plaintiff himself admits that the land belongs to the State government. So far as allotment is concerned, the said relief cannot be granted by the civil Court. It is totally in the jurisdiction of revenue authority. 15. The learned counsel for the appellant has strenuously submitted that the decree for permanent injunction against the defendant not to evict the plaintiff from the disputed land without following due process of law ought to have been granted by the trial Court as the plaintiff has been in long possession of the disputed land and in support of his contention, learned counsel for the appellant has cited the judgments as mentioned earlier. 16. The contention raised by the plaintiff’s counsel has no relevance in this case as the plaintiff’s possession herein is of the nature of encroachment so his possession cannot be regarded as settled possession. 16. The contention raised by the plaintiff’s counsel has no relevance in this case as the plaintiff’s possession herein is of the nature of encroachment so his possession cannot be regarded as settled possession. Though learned counsel for the plaintiff on the basis of para 9 of the judgment rendered in Rame Gowda’s case (Supra) has tried to say that the possession of the plaintiff is to be treated as settled possession, yet the cited judgment does not help the plaintiff’s case. The verdict of the Hon’ble apex Court is related to a dispute between the private parties. In the aforesaid judgment, it has not been held that if a person unauthorizedly entered into possession of the land, his possession shall be treated as settled possession. In the instant case, State government is a party as defendant. Indisputably, the possession of the disputed property was not handed over by the State Government to the plaintiff or his ancestors. As discussed earlier, the plaintiff’s father encroached on the disputed survey No. 69 in the year 1972-73 as shown in Ex. P/4 and remaining Survey No. 67 was encroached on by him in the later years. In view of the facts, the unauthorized possession of the plaintiff cannot be held to be a settled possession. 17. Moreover, plaintiff Devendra Kumar (PW 1) has not deposed in his statement that he was being forcibly dispossessed by the defendant. In para 6 and 7, he has stated that he requested the officers of the defendant for allotment of the disputed land, but they denied the request on the ground that the land could only be allotted to a person belonging to the Schedule Tribe category but he has not specifically deposed in his statement that the defendant’s employee had tried to evict or threatened him to dispossess of the disputed land. On the same, other plaintiff’s witnesses Ashok Kumar (PW 2) and Purushottam (PW 3) have not deposed even a single word about threatening of forcible dispossession. In view of the facts, it can safely be inferred that the defendant has never tried to dispossess the plaintiff forcibly from the disputed land. Therefore, no question arises of granting a decree of permanent injunction in favour of the plaintiff as the status of the plaintiff is totally that of an encroacher on the disputed land. In view of the facts, it can safely be inferred that the defendant has never tried to dispossess the plaintiff forcibly from the disputed land. Therefore, no question arises of granting a decree of permanent injunction in favour of the plaintiff as the status of the plaintiff is totally that of an encroacher on the disputed land. Under section 248 of the M.P. Land Revenue Code, the State Government has full right to evict an encroacher from the government land and the said encroaching possession cannot be protected by perpetual injunction of civil Court as held in State of M.P. v. Ismail Khan 2006 Revenue Nirnay 271. Besides the plaintiff and his father got the possession of the disputed land unauthorizedly, therefore, the relief of perpetual injunction under section 41 of the Specific Relief Act cannot be granted in favour of the plaintiff to protect such an unauthorized possession. The cited judgment dated 13.11.2006 in Second Appeal No. 412 of 2003 does not help the plaintiff ‘s case as no law has been laid down in the judgment to this effect that the unauthorized possession should be protected by issuing perpetual injunction. Similarly, other cited judgment of Shavaram alias Seva (Supra) does not help the plaintiff’s case as the aforesaid case is related to the temporary injunction. 18. Having taken into account the recorded evidence, facts and circumstances of the case, it is concluded that the learned trial Court has not committed any error in dismissing the plaintiff’s suit. No flaw has been found in the findings of the impugned judgment to interfere with it. Consequently, the appeal filed by the plaintiff is found to be baseless, therefore, affirming the finding of impugned judgment, the appeal is dismissed with costs which is to be borne by the plaintiff. Decree be drawn up accordingly.