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2016 DIGILAW 1157 (MP)

Ramsanehi v. Mst. Rajjuwa

2016-12-16

VIJAY KUMAR SHUKLA

body2016
ORDER : Vijay Kumar Shukla, J. The present appeal is filed under Section 100 (wrongly mentioned under Section 96 in the cause title) of Civil Procedure Code challenging the judgment and decree dated 03.03.2015 passed by the Upper District Judge, Sidhi to the Court of 1st Additional District Judge, Sidhi affirming the judgment and decree dated 08.09.2014 passed by the 4th Civil Judge Class-II dismissing the suit filed by the appellants/plaintiffs for declaration of the entries in the revenue record in favour of the defendant no.1 is null and void and also to grant permanent injunction. 2. The brief facts of the case are that the appellants filed a suit for declaration and injunction on the ground that the ancestors of respondent no.1/defendant no.1 had gifted certain property to the ancestors of the appellants/plaintiffs more than 50 years back and according to him the defendant's predecessors had relinquished their rights over the property. He has submitted that the ancestors of the plaintiffs constructed their house on the land gifted by the predecessors of the defendant no.1 and thereafter, they had been enjoying the said property. However, in the revenue records the name of defendant no.1 continued to be recorded in the records of the rights and his name was mutated. The appellant was asserted that they remain in the possession of the suit property since long. Claiming adverse possession the suit was filed. 3. Defendant no.1 denied the claim of the plaintiffs and submitted that he is sole Bhumi Swami and possession holder of the said land. He further pleaded that the disputed land was never transferred by his ancestors to the ancestors of the plaintiffs and there was no adverse possession or any relinquishment of right infavour of the plaintiffs. Considering the facts and the records, the trial Court vide judgment and decree dated 08.09.2014 dismissed the suit. 4. The trial Court recorded a finding that the plaintiffs could not perfected his title by way of adverse possession on the disputed land and the possession of the plaintiffs was also not found proved. Further the trial Court recorded a finding that there was no interference in the possession of the plaintiffs by the defendant no.1. 5. These findings were challenged before the Lower Appellate Court. Further the trial Court recorded a finding that there was no interference in the possession of the plaintiffs by the defendant no.1. 5. These findings were challenged before the Lower Appellate Court. The Lower Appellate Court in para 8 had considered the statement of the witness Ramsanehi Patel (PW-1) and found that there was possession of the plaintiff on the suit land but the eviction proceedings were taken against him before the Revenue Officer. The Court had also considered the statement of Rajmani Kol (PW-2) and Vanshgopal Patel (PW-3). These witnesses have admitted that the disputed land does not belongs to the plaintiffs and the same is on lease land of Ramaua. In para-11 the Lower Appellate Court recorded a finding that there is no document produced by the plaintiffs that on the what basis he had entered into possession of the suit land and how could he claim title over the suit land. The Trial Court had extensively considered the evidence and the documents and thereafter, recorded the finding that the appellant could not prove his title. 6. The suit of the plaintiff is based on adverse possession and the findings have been recorded by both the Courts against the plaintiffs that there was no adverse possession or continuous hostile and uninterrupted possession which are essential ingredients for the adverse possession. However, the plaintiffs can not based his case on the ground of the adverse possession. 7. The apex court has held in the case of Gurdwara Sahib v. Grampanchayat Village Sirthala and another (2014)1 SCC 669 that the plaintiffs could not seek decree of title on the basis of plea of adverse possession. The relevant para of the said judgment is as under:- "In so far as first issue is concerned, it was decided in favour of the plaintiff returning the findings that the appellant was in adverse possession of the suit property since 13.4.1952 as this fact had been proved by plethora of documentary evidence produced by the appellant. However, while deciding the second issue, the court opined that no declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield and not as a sword. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurudwara Sahib Sannuali v. State of Punjab and thus, decided the issue against the plaintiff. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurudwara Sahib Sannuali v. State of Punjab and thus, decided the issue against the plaintiff. Issue No.3 was also, in the same vein, decided against the appellant." 8. In the present case the appellant/plaintiff based his case on adverse possession which is not legally permissible to seek declaration of title as held by the Apex Court that no declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield and not as a sword. 9. In this view of the matter, I do not find any illegality or perversity in the concurrent findings recorded by both the Courts. This court is of the considered opinion that as the judgment of the trial Court and its findings have been duly affirmed by the Lower Appellate court which is not perverse and in view of the law laid down by the Apex Court in Gurudwara Sahib's case (Supra) as no substantial question of law involved. Hence, the question of interference by this Court does not arise under Section 100 of CPC and the appeal is accordingly dismissed. No order as to costs.