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2016 DIGILAW 182 (MP)

Pukhraj Singh v. Jhumko Bai

2016-03-02

ROHIT ARYA

body2016
JUDGMENT : 1. This appeal under section 100 CPC by the defendant No.1 is directed against the confirming judgment and decree dated 18.1.2013 passed in Civil Appeal No.13A/2012 by Additional District Judge, Chachoda District Guna. Plaintiffs' suit for declaration, injunction and mesne profits has been decreed by Civil Judge, Class-I, Chachoda, District Guna in Civil Suit No.19-A/2011 vide the judgment and decree dated 6.2.2012. 2. Facts necessary for disposal of this appeal are in narrow compass: Suit for declaration, injunction and mesne profits has been filed inter alia contending that the suit land as described in paragraph 1 of the plaint was of the joint ownership of the plaintiffs' having succeeded to the same from Kailash, husband of plaintiff No.1 and father of plaintiffs No.2 and 3, who was granted the patta by the State Government in the year 1975-76 and thereafter in the year 1986, Bhumiswami rights were conferred upon him and accordingly, his name was mutated in the revenue record as Bhumiswami of the suit land. Defendant No.1 having no right, title and interest over the suit land had taken forcible possession from the plaintiffs' in the year 2011 and in collusion with the revenue authorities, got his name mutated substituting to that of late Kailash and the plaintiffs' without notice and without hearing the plaintiffs. Hence, the instant suit has been filed for declaration, recovery of possession and mesne profits. 3. Defendant No.1 filed written statement and denied plaint allegations. It is contended that the suit land was of the ownership of his father, Jagannath who died in the year 1990. Thereafter in the year 2006, the suit land was partitioned amongst his brothers'. Hence, the name of defendant continued in the revenue record as Bhumiswami and he is in possession thereof. However, the defendant has expressed ignorance as regards grant of patta in favour of Kailash, the entry in the revenue record in the name of Kailash and mutation of names of plaintiffs' after his death till the alleged claim of partition in the suit land. With the aforesaid submissions prayed for dismissal of the suit. 4. Trial Court, on aforesaid pleadings framed issues and allowed parties to lead evidence. Trial Court as regards title has framed issue No.1. While answering the aforesaid issue, the trial Court has dealt with entire evidence placed on record from paragraphs 8 to 15 of the judgment. With the aforesaid submissions prayed for dismissal of the suit. 4. Trial Court, on aforesaid pleadings framed issues and allowed parties to lead evidence. Trial Court as regards title has framed issue No.1. While answering the aforesaid issue, the trial Court has dealt with entire evidence placed on record from paragraphs 8 to 15 of the judgment. Upon perusal of the revenue record, it has been found that in khasra from Samvat 2035 (year 1978) to Samvat 2038 (year 1981), the suit land was recorded in the name of Kailash son of Nandudas as patta holder. Plaintiffs after having permitted to lead secondary evidence had exhibited photo copy of patta as Ex.P/5. On perusal whereof, it has been found that the patta was granted in favour of late Kailash in case No.123-A19/75-76. As such, by virtue of the patta granted and the corresponding revenue record (khasra panchshala), the trial Court concluded that the suit land is that of ownership of the plaintiffs. As regards issue No.2, whether the defendant No.1 is in unauthorized possession, the same has been answered in paragraph 16 where under it has been found that the defendant failed to establish his right to be in possession over the suit land by oral and documentary evidence. Therefore, the possession of defendant No.1 was found to be illegal and unauthorized in nature. Consequently, remaining issues on the basis of the material placed on record have been decided in favour of plaintiffs' and awarded mesne profits. Accordingly, the suit has been decreed. On appeal, the first appellate Court has reappreciated the entire oral and documentary evidence on record and affirming the findings so recorded by the trial Court has dismissed the appeal. 5. Learned counsel for the defendant/appellant at the first instance contended that there is no evidence on record as regards grant of patta in favour of late Kailash, the predecessor of plaintiffs, therefore, in the absence of any title document, both the Courts below have fallen in error declaring that the suit land is that of the ownership of the plaintiffs. Learned counsel for the defendant/appellant at the first instance contended that there is no evidence on record as regards grant of patta in favour of late Kailash, the predecessor of plaintiffs, therefore, in the absence of any title document, both the Courts below have fallen in error declaring that the suit land is that of the ownership of the plaintiffs. However, upon perusal of the material on record, it is clear that in paragraph No.2 of the plaint, it was specifically pleaded by the plaintiffs that originally suit land was Government lad which was allotted patta to late Kailash, husband of plaintiff No.1 and father of defendants No.2 and 3 in the year 1975-76 and his name has been recorded as patta holder and thereafter in the year 1986, Bhumiswami rights were conferred upon him and, accordingly, his name was mutated in the revenue record as Bhumiswami of the suit land. After death of Kailash, the suit land mutated in the names of plaintiffs being successors to his estate. Under such circumstances, the contention that the plaintiffs could not establish their right, title and ownership over the suit land is found to be without substance. As regards the alleged partition in the year 2006, in the opinion of this Court, such contention is also without any foundation. For invoking the provisions of section 178 of the Madhya Pradesh Land Revenue Code, 1959, parties must establish their pre-existing rights of Bhumiswami over the suit land after seeking partition. In the instant case, the defendant/appellant has failed to establish title to the suit land. Therefore, the alleged claim of partition is also found to be contrary to law and factually incorrect. Accordingly, the Courts below have not committed any illegality having held that the defendant No.1 is in unauthorized possession of the suit land. 6. Consequently, in the opinion of this Court, both the Courts below have recorded pure findings of fact based on proper appreciation of the evidence brought on record. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference under section 100 of the Code. 7. Appeal sans merit and is dismissed accordingly.