Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 116 (MP)

Ramlakhan v. Narayan Singh

2015-01-30

M.C.GARG

body2015
JUDGMENT : M.C. Garg, J. 1. This second appeal has been filed by the appellants who are aggrieved by the order passed in Civil Appeal bearing 29A/05 whereby, the judgment of the Civil Judge Class-II Bhind in Civil Suit No. 44-A/99 dated 31.3.04 was reversed. 2. In short, it is the case of the appellants that the appellants/plaintiffs are predecessor of Meghsingh who was the original plaintiff and who filed a suit for declaration of title and for removal of the construction over the suit land. He also claimed possession and mesne profit on the allegations that the land part of survey No.277 measuring 17 Biswa exclusively belonged to the plaintiff-Meghsingh. Plaintiff-Meghsingh received that land in partition from his property. It was also recorded in the revenue record. He also got the Bhu Adhikar Pustika, wherein it was recorded by the revenue authority that the land was received by the plaintiff in partition and was recorded as Bhumiswami. It was the case of the appellants that Meghsingh was in service as Security Guard in Rewa he came back on 5.8.1986 and found that in his absence the respondents/defendants have illegally constructed a room on the disputed land and has also kept Chapper. The plaintiff complained about the same alleging that it was unauthorized construction over the land of the appellants. 3. According to the respondents/defendants, it was pleaded that the plaintiff is not the exclusively owner of the suit property and that no partition had taken place and he did not receive the property in partition. It was also stated that the partition proceedings are pending in the SDO Court Bhind. Even though, it was admitted that the Tehsil court's mutation has been made in the name of the plaintiff-Meghsingh but it was alleged that it was recorded in connivance with Patwari by filing Fard Batwara which infact not taken place. It was also pleaded that respondents/defendants were in possession. The suit filed by the respondents/defendants was barred by limitation. During the pendency of the aforesaid suit, the appellants purchased the land belonging to Meghsingh and became a party to these proceedings. 4. The lower court while holding that the late Meghsingh was owner of the property of survey No.277 denied that the respondents acquired title by way of adverse possession. During the pendency of the aforesaid suit, the appellants purchased the land belonging to Meghsingh and became a party to these proceedings. 4. The lower court while holding that the late Meghsingh was owner of the property of survey No.277 denied that the respondents acquired title by way of adverse possession. It was also held that the appellants were entitled to get back the possession and thus the suit was decreed. However, the first appellate Court reversed the findings of the lower Court. It was held by the appellate Court that Meghsingh alone could not have sold the land because it was the joint property. It was also held that since last 20-25 years, the defendants are in possession and the appellants have no right to get the decree. It is against the aforesaid findings returned by the first appellate court, the present appeal has been filed. 5. According to the appellant, the decision given by the first appellate Court is not correct and is perverse. In view of the fact that Ex-P/7 which is an order dismissing the appeal filed by the respondents against the order of the Tehsildar holding that partition has taken place between the parties was not taken into consideration by the first appellate Court while delivering the judgment. 6. I have heard the learned counsel for the parties and have examined the record. The relevant observations made by the first appellate Court are as under:- 7. We have gone through the record of the lower court from where it can be inferred that the Tehsildar even though dealt with the issue of partition and wanted the partition to be affected between the partition of the suit land but, the order of the SDO was appeal by the respondents. It Is true that the appeal was dismissed for non prosecution but there is nothing on record to show that the order of the SDO directing the Patwari to go for partition was given effect too. The order of Tehsildar is available in the lower Court file shows that the Tehsildar directed the Patwari that as per Fard Batwara ledgers be opened and as per the decision, the partition fees be obtained and thereafter, the copy of the order be given to the parties. There is nothing on record to show that the order was implemented. The order of Tehsildar is available in the lower Court file shows that the Tehsildar directed the Patwari that as per Fard Batwara ledgers be opened and as per the decision, the partition fees be obtained and thereafter, the copy of the order be given to the parties. There is nothing on record to show that the order was implemented. In these circumstances while there cannot be a dispute that Meghsingh was co-owner of the property but the partition had not been affected in fact the first appellate Court therefore taking into consideration this aspect held that the plaintiff- Meghsingh was entitled to his share but after completion of getting partition affected. This order virtually not against the appellants as such. Therefore, I do not find any infirmity in the order of the first appellate Court. No substantial question of law arises in this appeal. Therefore, the appeal is hereby dismissed. No order as to the cost.