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Madhya Pradesh High Court · body

2014 DIGILAW 682 (MP)

Surendra Singh v. State of M. P.

2014-06-19

J.K.MAHESHWARI

body2014
Judgment: J.K. Maheshwari, J. 1. Heard on the question of admission. 2. This appeal is filed by the plaintiff against the judgment and decree dated 24.4.2006 passed by District Judge Vidisha in Civil Appeal No. 7A of 2006 confirming the finding to dismiss the suit seeking declaration on the basis of adverse possession vide judgment dated 29.11.2005 passed by II Civil Judge Class II Vidisha in Civil Suit No. 109A of 2004. The appellate court while passing judgment directed that the defendant shall not dispossess the plaintiff without following the due process of law. 3. Being aggrieved by the judgment passed by two courts dismissing the suit seeking declaration on the basis of adverse possession, this appeal has been filed. 4. The plaintiff inter-alia contended that he is in possession of the agricultural land bearing Survey No. 226 area 0.679 Hectares out of the area 0.679 Hectares situated in village Availa Tehsil and District Vidisha. It was stated that the said land was given on patta by Zamindar Hamir Singh to Grandfather of the plaintiff Jhhunnulal. Thereafter, he continued to be in possession, on death through legal heirs. Thus plaintiff is in possession of the suit land since the time of abolition of Zamindari which is continuous and peaceful, therefore, the suit filed by him may be decreed. Permanent injunction was also sought to restrain the defendant from interfering in his possession. 5. The defendant by filing written statement has contested the claim on very many grounds inter alia pleading that the land in question is a government land and the plaintiff being encroacher acquired no right title on the basis of adverse possession. Therefore, the suit filed by the plaintiff may be dismissed. 6. The learned trial court as well as appellate court both dismissed the suit holding that the plaintiff has miserably failed to prove continuous, peaceful and uninterrupted possession hostile to the real owner, therefore, the relief with respect to declaration of title on the basis of adverse possession and permanent injunction also was refused. The appellate court while confirming the finding to dismiss the suit seeking declaration observed that the appellant is in possession of the suit property, however, his possession be not disturbed without following due procedure of law. Hence, this appeal was preferred. 7. The appellate court while confirming the finding to dismiss the suit seeking declaration observed that the appellant is in possession of the suit property, however, his possession be not disturbed without following due procedure of law. Hence, this appeal was preferred. 7. Shri Bansal learned counsel representing appellant has strenuously urged that courts below committed error to dismiss the suit seeking declaration though finding of his possession has been recorded by the appellate court and the decree seeking injunction has also been granted. In such circumstances, the substantial question of law arises for consideration in this appeal. Therefore, it may be admitted for final hearing. 8. Per contra, Shri R.P. Rathi learned counsel representing defendant/state submits that the possession of the appellant was found as encroacher by the trial court which cannot be protected, and the finding of fact refusing decree of declaration concurrently recorded by two courts below do not warrant any interference in this appeal. 9. After hearing learned counsel for the parties and on perusal of record, it is not in dispute that the suit land whereupon, the appellant is in possession throughout as encroacher, is a government land. However, plea regarding grant of patta and of continuous, peaceful and uninterrupted possession has not been established by the cogent evidence. On the point of possession, finding has been recorded by two courts against the plaintiff which do not appear to be perverse warranting interference in this appeal. On the point of injunction, the appellate court referring various Khasra entries observed that on the date of filing of the suit, the appellant was in possession, however, his possession be protected and be not disturbed without following due procedure of law. The said finding of fact is also based on due appreciation of evidence. 10. In view of the foregoing, the judgment and decree passed by two courts below is hereby upheld and this appeal being devoid of substance is hereby dismissed on the admission stage.