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Madhya Pradesh High Court · body

2014 DIGILAW 1580 (MP)

Ramesh Chandra v. State of M. P.

2014-12-03

ROHIT ARYA

body2014
JUDGMENT 1. Heard on the question of admission. 2. The instant appeal by appellants/plaintiffs under section 100 of CPC is directed against the concurring judgment and decree dated 8.8.2005 passed by First Additional District Judge, Gwalior to the Court of Special Judge (Atrocities) and First ADJ, Gwalior (M.P.) in Civil Appeal No.13-A/2004; confirming the judgment and decree dated 30.9.2003 passed by 9th Civil Judge, Class-I, Gwalior in Civil Suit No.149-A/1998. By the aforesaid judgment, the plaintiff's suit for declaration and permanent injunction has been dismissed. 3. Facts shorn of necessary details are to the effect that original plaintiff Smt. Prago Bai filed a suit for decoration and permanent injunction inter alia contending that the suit land ad-measuring 3 bigha 3 biswa falling in survey No.341, styling the same as ancestral property, is to be owned and possesses by her, who with the passage of time expired and present appellants were substituted for her as her legal heirs. 4. Defendants filed written statement and denied the plaint allegations. 5. On such pleadings trial Court framed issues and allowed parties to lead evidence and upon critical evaluation of evidence on record, trial Court dismissed the suit. However, while dismissing the suit and denying the relief to the plaintiffs as regards title of the suit property, it has been observed that plaintiffs are found to be in possession of a part of suit land ad-measuring 1 bigha 1 biswa. 6. On appeal, the first appellate Court again reappreciated the entire evidence on record and after appreciation of evidence on record, confirmed the findings of the trial Court while reiterating the aforesaid findings of trial Court in para 16 of the judgment that plaintiffs are found in possession of a part of suit land ad-measuring 1 bigha 1 biswa. 7. Questioning the sustainability of the impugned judgment and decree, learned counsel for the appellants submitted that the possession of Late Smt. Pragobai has been admitted by the Municipal Corporation (Defendant No.2) in the written statement and in the Khasra entries also the name of plaintiff Smt. Prago Bai was shown against the suit land and therefore, there is no reason or justification not to decree the suit declaring Smt. Prago Bai as owner of the suit land. 8. 8. However, having perused the judgments impugned, it appears that trial Court has rationalized the findings based upon the proper appreciation of evidence to the effect that for want of evidence that suit land is ancestral in nature and the fact that in Khasra Panchshala entries of three years produced before the trial Court there is glaring discrepancies and varience in the area shown to be in possession of plaintiff, trial Court held that plaintiff failed to prove the suit property being ancestral property and the possession over the suit land is that of plaintiff allegedly based upon the khasra entries which remain intact and impregnable as withstood the judicial scrutiny of the first appellate Court. 9. Having perused the judgments impugned, this Court is of the view that both the Courts below have recorded a concurrent finding of fact upon justifiable appreciation of evidence on record. The reasonings attributed by Courts below negating the claim of possession of plaintiff is found to be fully justified as once the claim is set up of title as regard suit property being ancestral in nature, unless the same was proved to be of that nature, no claim of title could be entertained. Besides, mere stray entry in khasra of few years by itself do not justify the claim of possession over the suit land. It is a settled law. Hence, no fault is found with the findings of the Courts below. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference of this Court under section 100 of CPC. However, as both the Courts below (first appellate Court in para 16 and trial Court in paras 11 and 12 of impugned judgments) have found that plaintiffs are in possession of part of suit land ad-measuring 1 bigha 1 biswa, in case the respondent/State wishes to evict the appellants from suit land, the same shall not be done except by taking recourse of due process of law as provided for under the relevant enactments. With the aforesaid observation, appeal stands dismissed.