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Madhya Pradesh High Court · body

2014 DIGILAW 1456 (MP)

Maharaj Singh v. Mahant Singh Chaturvedi

2014-11-11

M.C.GARG

body2014
Judgment M.C. Garg, J. 1. The appellants/plaintiffs have filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 3rd May, 2007 passed by I Additional District Judge, Bhind in Civil Appeal No. 17 of 2006 affirming the judgment and decree dated 29-11-2005 passed by II Civil Judge Class I, Bhind in Civil Suit No. 36A of 2005 whereby, the suit filed by the plaintiffs for declaration of title, correction of revenue entries and for recovery of possession was dismissed. The Appellants filed a suit in the trial Court seeking a declaration that the appellants were the owner of the disputed property. They also sought perpetual injunction seeking restrain order against the respondents for interfering into their possession. The basis of their claim was adverse possession. They also sought a declaration that sale deed executed by the respondent No. 2 in favour of the respondents No. 6 to 9 to be null and void as respondent No. 2 had no right in the property. Later on, a gift deed allegedly executed by the respondent No. 2 in view of the sale deed was also questioned. 2. The respondents denied adverse possession of the appellants. The trial Court held that the appellants were not able to establish their substantive title or adverse possession so as to complete his case of adverse possession. Therefore, dismissed the suit. 3. It is submitted by learned counsel for the appellants that in both the Courts below, possession of the appellants vide Ex.P/4 has been accepted. Ex.P/4 is an order passed by the revenue authorities under section 145 of Criminal Procedure Code. 4. Such orders are passed by SDM only for maintaining the law and order that is to say if a complaint is made to the SDM under section 145 of Criminal Procedure Code, the SDM is only required to see as to who was in possession of the property within two months next before the lodging of the said complaint. The order passed under section 145 of Criminal Procedure Code remains valid till the Civil Court decides the matter with respect to the title of the property by taking evidence by declaring that who has substantive possession of the suit property and who has a lawful right to have that property. The order passed under section 145 of Criminal Procedure Code remains valid till the Civil Court decides the matter with respect to the title of the property by taking evidence by declaring that who has substantive possession of the suit property and who has a lawful right to have that property. Merely because, an order Ex.P/4 is passed under section 145 of Criminal Procedure Code and appellants were found in possession of the property next before the two months of lodging of the complaint, it would not prove that the appellants were in adverse possession of the property or have perfected their title so as to claim a declaration by way of adverse possession. In these circumstances, two Courts below have not found the appellants having substantive possession of the suit property sufficient to hold that the appellants became owner by adverse possession and merely because, their possession has been found by SDM under section 145 of Criminal Procedure Code, they cannot say that an order was passed so as to restrain the respondents from dispossessing the appellants except in accordance with law. Such injunction if granted, would be based upon the triple principles as contained under Order 39, Rules 1 and 2 of Civil Procedure Code that if (i). Prima facie case, (ii). balance of convenience and (iii) principles of natural justice. The prima facie case in favour of the plaintiffs shall be only if the plaintiffs have substantive right in the suit property which is not a case before us. In these circumstances, the prayer made by the appellants cannot be accepted. Since there are consistent finding of facts by the two Courts below holding that the appellants were not able to establish that they became owner of the property by completing their plea of adverse possession, no substantial question of law is involved in this appeal. This appeal is therefore, dismissed. No order as to the costs.