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2014 DIGILAW 1566 (MP)

Ramdhani v. State of M. P.

2014-12-01

U.C.MAHESHWARI

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Judgment U.C. Maheshwari, J.:- 1. Shri Nitin Agrawal, learned counsel for the appellant. Shri Amit Sharma, learned PL for respondent Nos. 1 to 3. This appeal of the year 2001 is taken to consider the question of admission. Heard. On behalf of the appellant-plaintiff this appeal is preferred under section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 24-1-2001 passed by the Additional District Judge, Maihar, district Satna in Civil Appeal No. 6-A/04 affirming the judgment and decree dated 31-1-1994 passed by the Civil Judge, Class-I, Maihar in COS No. 97-A/92, whereby the suit of the appellant filed against the respondents for declaration and perpetual injunction with respect of the suit land was dismissed. The facts giving rise to this appeal in short are that the appellant herein filed the impugned suit against the respondent Nos. 1 to 3, the State Authorities by impleading the respondent Nos. 4 and 5 as formal party stating them to be his family members and lessee for declaration and perpetual injunction with respect of the land being survey No. 2610, area 4 bighas, 9 biswa situated at Mauja Jariyari, tahsil, Maihar. In the plaint, it is stated that the appellant-plaintiff did not have any dispute with the respondent Nos. 4 and 5. As per further averments, suit is filed mainly against the State authorities, the respondent Nos. 1 to 3 contending that since long the land in dispute was remained in possession of the family of the appellant and the respondent Nos. 4 and 5 as "Kabij Kashtakar and in such premises, the respondent Nos. 1 to 3, the State authorities had no authority interest or right over such land. It is further stated that respondent Nos. 4 and 5 had also left their share of the land in favour of the appellant. The disputed land being known as "Talab" (Keraha Pond) land and is situated near to the pond, situated on survey No. 2612 area 9 beegha, 10 biswa and the land of Survey No. 2613 is known as catchment area of such pond. It is further stated that such pond was constructed by the forefather of the appellant and the respondent Nos. 4 and 5. They also carried out some plantations on the aforesaid disputed land. It is further stated that such pond was constructed by the forefather of the appellant and the respondent Nos. 4 and 5. They also carried out some plantations on the aforesaid disputed land. Earlier the aforesaid land was recorded in the name of Deenbandhu Sadhu and Panveshwar, the forefather of the appellant and respondent Nos. 4 and 5. Simultaneously, without giving any information or opportunity of hearing to the appellant, respondent Nos. 4 and 5 and their predecessor-in-title or their lessee, the name of the forefather of the appellant was deleted and scored out from the revenue record and the name of State of M. P. was recorded as Bhoomiswami over the disputed land. It is further stated that although the disputed land was remained recorded as Talab, (pond) but since last 50 years, the same was neither filled up with water nor was used for that purpose. The same is under cultivation of the appellant. As per further averments, on dated 18-9-1992, the appellant received a show cause notice from the Court of SDO, in which by showing the land bearing Survey No. 2610 to be the Government land, his possession was shown to be an encroacher and was asked, why he should not be sent to jail. On receiving such notice, he proceeded and filed the impugned suit for declaration to declare his title over the disputed land and for perpetual injunction to protect his possession from the authorities of respondent Nos. 1 to 3. 2. In spite service of the notice on the authorities of respondent Nos. 1 to 3, no one had appeared on their behalf before the trial Court on which the case was proceeded ex-parte against them while the respondent Nos. 4 and 5 filed their WS and admitted the averments of the plaint. After holding the trial, on recording the ex parte evidence of the appellant, on appreciation by holding that the appellant could not prove his title over the land and property in dispute with further finding that such pond was neither recorded in the name of appellant nor was remained in his possession, the suit was dismissed. 3. On challenging such judgment and decree of the trial Court before the subordinate appellate Court, on appreciation by affirming such judgment and decree the appeal was dismissed, on which the appellant has come to this Court with this appeal. 4. 3. On challenging such judgment and decree of the trial Court before the subordinate appellate Court, on appreciation by affirming such judgment and decree the appeal was dismissed, on which the appellant has come to this Court with this appeal. 4. The appellant's counsel after taking me through the records of both the Courts below along with the impugned judgments argued that the disputed land was coming in continuous uninterrupted possession since 1944-1945 in the family of the appellants and respondent Nos. 4 and 5 from the time of their forefather and in such premises, the appellant and his family members had perfected their right of Bhumiswami over the same under section 158 of M.P. Land Revenue Code. It is further stated in case, it is found that the appellant has not become the Bhoomiswami under section 158 of the aforesaid Code, then he being remained in uninterrupted possession of the land through his forefather since 1944-1945 till filing the suit, i.e. more than 30 years has perfected his title over the disputed land by adverse possession against the Authorities of the State. In this regard, by referring the record of the trial Court said that requisite ingredients of adverse possession have been pleaded and proved by the appellant. He also said that for the sake of arguments, if it is found that the appellant could not establish the source of his possession over the lands, even then on the basis of long possession, the appellant is entitled to get the declaratory decree of such land and pursuant to it, he is also entitled for the decree of perpetual injunction restraining the State authorities to interfere in his possession. He further said that the name of the State of M. P. was recorded in the record, on such land without extending any opportunity of hearing to the appellant and respondent Nos. 4 and 5 or their forefathers. Thus, such mutated entry is not binding against the appellant. Even otherwise, such entry being made without following the procedure and principles of natural justice is not sustainable under the law. In addition, it was argued that his suit has been dismissed by the Court below contrary to unrebutted pleadings and the evidence of the appellant and prayed to admit and allow this appeal by framing the substantial questions of law proposed in the memo of appeal. 5. In addition, it was argued that his suit has been dismissed by the Court below contrary to unrebutted pleadings and the evidence of the appellant and prayed to admit and allow this appeal by framing the substantial questions of law proposed in the memo of appeal. 5. Having heard the counsel on the question of admission, keeping in view the arguments, I have carefully gone through the records of both the Courts below as well as the impugned judgments. 6. On perusing such records, I have not found any material or the substance giving rise to any question of law rather than substantial questions of law in the matter, which requires any interference at this stage under section 100 of Civil Procedure Code. Thus, the appeal deserves to be dismissed. "(A) As per provision for section 158 of Land Revenue Code 1959 the person/party, who is claiming right of Bhoomiswami over the disputed land should be in any kind of possession described in such section on 2-10-1959, the date of the enforcement of such Code. In the case at hand, it is apparent that the appellant could not prove through any admissible documents or reliable evidence that on the enforcement of the aforesaid Code 1959, the appellant, respondent Nos. 2 to 5 or any of their forefathers was in any of kinds of possession of disputed land defined and described under such section 158 of M.P.L.R.C. from the time of erstwhile State. So in the lack of such evidence and documents, the Courts below have not committed any error in holding that the appellant did not acquire the right of Bhumiswami under section 158 of the M.P.L.R.C. on coming into force of such Code. (B) The appellant is also claiming the title of the disputed property on the basis of his long possession but as per available record, the source of possession of the appellant over the disputed land has not been found to be proved and as per settled proposition unless the legal source of obtaining the possession is established, the person like the appellant could not get the declaratory decree of the title of the disputed property mere on the basis of alleged possession, which is not the legal possession. So in such premises also the Courts below have not committed any error in dismissing the suit by holding the appellant was never remained in possession of the land. My such view is fully fortified by the decision of this Court in the matter of Kamal Singh v. Jairam Singh, reported in 1986 Vol. 1, M.P. Weekly Notes 116. The same is based on the decision of the Apex Court in the matter of Gangubai Bablya Choudhary and others v. Sitaram Bhalchandra Sukhtankar and others etc., AIR 1983 SC 742 . (C) So far the question of perfecting the right and title over the disputed land by adverse possession is concerned, on perusing the pleadings and the evidence adduced by the appellant, I have not found any admissible documents or the evidence showing that the appellant or respondent Nos. 4 to 5 or their forefathers had remained in possession of the disputed land by declaring themselves to be the owner or the Bhumiswami of such land in the knowledge of the State Authorities, the respondent Nos. 1, 2 and 3. So, in the lack of such material evidence, it could not be assumed that the appellant has perfected the right or the title over the land by adverse possession. It is settled proposition that in the lack of admissible evidence proving the ingredient of adverse possession, the civil Court has no authority or right to give the declaratory decree mere on the prayer of the party like the appellant. In such premises, also the judgments of Courts below do not appear to be contrary to any law and settled proposition. (D) It is also settled proposition of law that a person like appellant claiming the title over the property on the strength of adverse possession has no right to file any declaratory suit to declare that he has perfected the right and title over the disputed property by adverse possession. The plea of adverse possession could be taken in defence as a shield, if the suit is filed by other party. But such plea could not be used as a sword to file the suit for declaration with perpetual injunction. In such premises, also appellant being plaintiff did not have any right to file the impugned suit for declaration and perpetual injunction on the strength of the plea of adverse possession. But such plea could not be used as a sword to file the suit for declaration with perpetual injunction. In such premises, also appellant being plaintiff did not have any right to file the impugned suit for declaration and perpetual injunction on the strength of the plea of adverse possession. My such view is fully fortified by the decision of the Apex Court in the matter of Gurdwara Sahib v. Gram Panchayat Village Sirthala, reported in 2014(3) MPLJ 36. (E) It is also apparent from the records that the appellant has filed the impugned suit after receiving the show cause notice issued by the SDO under the proceeding of section 248 of M.P. Land Revenue Code. Against such proceeding, the appellant had a remedy to defend the same before the Court of such SDO and on arising the occasion before the superior authority of the Revenue Sector under the concerning provisions of M.P. Land Revenue Code and if the appellant, plaintiff has filed the impugned suit without exhausting the remedy available against such show cause notice of section 248 of M.P. Land Revenue Code, then in view of availability of alternative efficacious forum to the appellant, the civil Court did not have authority to defeat the provision of the aforesaid other enactment in which jurisdiction to decide the matter was vested in the revenue authorities. (F) It is true that respondent Nos. 1 to 3 remained ex parte before the trial Court as well as before the appellate Court and in such premises, neither the pleadings nor the evidence adduced by the appellant was rebutted on behalf of such State Authorities, respondent Nos. 1, 2 and 3. But, it is apparent from the concurrent findings of the Courts below that on appreciation of evidence, it was found that the appellant had failed to prove his case by any admissible evidence. It is settled proposition of law that the suit could not be decreed by the civil Court in favour of the plaintiff on account of any weakness of the defendants. The plaintiff like the appellant is duty bound to build his own case on sound circumstance by admissible evidence and documents and if the plaintiff fails to discharge such duty and case is not built up on sound circumstances, then mere on account of any weakness of respondents- defendants, the suit have been decreed by the Courts below. The plaintiff like the appellant is duty bound to build his own case on sound circumstance by admissible evidence and documents and if the plaintiff fails to discharge such duty and case is not built up on sound circumstances, then mere on account of any weakness of respondents- defendants, the suit have been decreed by the Courts below. (G) So far the question raised by the appellant's counsel that mutation of the State was carried out in revenue records without extending any opportunity of hearing to the appellant, respondent Nos. 4, 5 and their forefather are concerned, such argument has not appealed me. In the available circumstances, according to which appellant has failed to prove the source from which he or his forefather have acquired the possession or title of the disputed property, then they could not dispute the mutation. As such, it appears from the impugned judgment that earlier this property was belonging to the then erstwhile State and after independence, the same has become the property of State and on reorganization of State of M. P. and after coming into force of M.P. Land Revenue Code, the same has become the property of the State authorities. In any case, it was never remained and recorded as Bhoomiswami in the name of the present appellant or his predecessor in revenue records. In such premises, it could not be said that the Courts below have committed any error in dismissing the suit. (H) In view of the aforesaid, I have not found any material substance or the circumstance in the matter giving rise to any question of law rather than substantial question of law which requires any interference at this stage under section 100 of Civil Procedure Code. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed. Pursuant to it, the interim order dated 16-5-2001 directing the parties to maintain the status quo has also come to an end." There shall be no order as to cost.