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Madhya Pradesh High Court · body

2016 DIGILAW 27 (MP)

Tarabai v. Onkar (deceased) Through LRs.

2016-01-07

ROHIT ARYA

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JUDGMENT 1. Heard on admission. 2. Appeal is admitted on the following substantial question of law :- “Whether first appellate Court was justified having reversed the finding of trial Court on encroachment based upon demarcation report (Ex.P-9) dated 4.9.1980.” With consent of parties, appeal is heard finally. 3. This appeal, by plaintiff, is against the reversing judgment and decree dated 5.10.2006 passed by II ADJ (Fast Track Court), Mungawali, District Guna in Civil Appeal No.11-A/2006, whereby judgment and decree dated 13.7.2005 passed by Civil Judge Class I, Mungawali in Civil Suit No.4-A/1983 were set aside. 4. Subject matter of dispute between the parties is to the effect as to whether defendants having adjacent land in survey No.465 have encroached upon the area of 0.470 hectares out of 1.359 hectares falling in survey No.463 which is undisputedly of the title and ownership of plaintiff. The trial Court decreed the suit on the basis of demarcation report dated 4.9.1980, wherein it has been found that the aforesaid land has since been encroached, hence plaintiff is entitled for recovery of possession. 5. On appeal, the first appellate Court reversed the aforesaid finding recorded by the trial Court and judgment and decree based thereupon, on the premise that plaintiff had failed to prove the aforesaid document through Government officials veracity whereof was required to be established with original document. The first appellate Court further found that the said report was not prepared in presence of defendants. Defendants had also not signed it. That apart, while discussing the evidence of plaintiff and her witnesses namely Hargovind (PW2) and Rammurti (PW3), the first appellate Court found that plaintiff was also not present on the spot at the time of measurement and demarcation. Plaintiff is not aware about the area of land of survey No.463 and that of 465. Therefore, her statement was found to be not worthy of credence. Further, it was found that plaintiff's witnesses Hargovind (PW2) and Rammurti (PW3) were oblivious of the contents of panchnama. They were not aware of land alleged to have been measured and encroached upon by the defendants. The land of defendants falling in survey No.465 was also not measured. Thus, upon evaluation of the oral and documentary evidence, the first appellate Court held that the fact of encroachment by defendants is not proved. They were not aware of land alleged to have been measured and encroached upon by the defendants. The land of defendants falling in survey No.465 was also not measured. Thus, upon evaluation of the oral and documentary evidence, the first appellate Court held that the fact of encroachment by defendants is not proved. For the said reasons, the first appellate Court set aside the judgment and decree passed by the trial Court and held that defendants have not encroached upon the land of plaintiff. 6. Heard, counsel for the parties. 7. Admittedly, plaintiff holds the title of land admeasuring 1.359 hectares in survey No.463 duly recorded in revenue records. Besides, plaintiff's land in survey No.463 and that of defendants in survey No.465 are adjacent to each other. If, on one hand in the demarcation report it has been found that plainitff's land has been encroached by defendants, and on on the other hand, first appellate Court found fault with the quality of evidence led by the plaintiff and held that demarcation report has not been proved by revenue record through revenue officials; defendants, though noticed, yet did not remain present and for the said reasons did not agree with the findings of the trial Court that there was encroachment, then in the opinion of this Court, complaint of encroachment is definitely required to be addressed by the competent Court to ascertain factual existence of area of 1.359 hectares on spot, as undisputedly plaintiff is the owner of land admeasuring 1.359 hectares falling in survey No.463. 8. Since the controversy remains unsettled, ends of justice shall be sub-served, if respondent No.2 is directed to ensure proper demarcation and measurement of survey Nos.463 and 465 and other adjacent survey number, if any, situated at Village Dudher. Accordingly, the judgments and decrees passed by the Courts below are set aside with a direction to plaintiff to appear before Collector, Ashoknagar, within one month, by filing an application for demarcation and measurement afresh of the area of lands falling in survey Nos.463 and 465 situated at Village Dudher. Accordingly, the judgments and decrees passed by the Courts below are set aside with a direction to plaintiff to appear before Collector, Ashoknagar, within one month, by filing an application for demarcation and measurement afresh of the area of lands falling in survey Nos.463 and 465 situated at Village Dudher. Upon receipt of such application, the Collector himself, or through any other competent Officer, shall ensure completion of the aforesaid exercise within next two months after service of notice to all concerned and as per the provisions of section 129(2) of the M.P. Land Revenue Code and rules framed thereunder and if land of plaintiff is found to have been encroached upon, the same shall be restored back to the plaintiff. Meanwhile, parties are directed to maintain status quo. With the aforesaid, this appeal stands disposed of.