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2016 DIGILAW 847 (MP)

Kudrat Noor (Deceased) through LRs v. Mangilal

2016-09-21

ASHOK KUMAR JOSHI

body2016
ORDER 1. The appellants/original plaintiffs have preferred this appeal under section 100 of the CPC being aggrieved by the judgment and decree dated 19.9.2013 passed by the Second Additional District Judge, Ashta, District Sehore in regular Civil Appeal No.9-A/2012 reversing the judgment and decree dated 19.12.2006 passed by the Civil Judge Class-I, Ashta, District Sehore in Civil Suit No.32-A/2003, whereby the plaintiffs suit was partially decreed and it was ordered to the defendants for removing their encroachment on 30 decimals land of Survey No.21 and the respondents No.1 to 3 were perpetually restrained from interfering in plaintiffs agricultural work over the disputed land of way. 2. The facts giving rise to this appeal in short are that the present appellants herein filed the above mentioned suit contending that each of them is Bhumiswami of different agricultural lands of Village Bhagwanpura, Tahsil Ashta, District Sehore. Ashta town is situated in the western side adjacent to their agricultural lands. On the land bearing Survey No.21 of same village, a Government way exists, which was being used by the plaintiffs from the time of their ancestors to take their oxen-carts, cattle and to transport their crops from their agricultural fields. The defendants No.1 to 3 had constructed a house over 0.30 acre part of the above mentioned land of Government path and thus were creating obstruction in using the way by the plaintiffs. In a demarcation proceeding in compliance to order of the Naib Tahsildar, Ashta, the Superintendent of Land Records after spot inspection on 21.5.1998 also found encroachment of the defendants over the land of the path and prepared a panchnama and reported the matter to the Revenue Court. Thus, by plaint, reliefs of mandatory injunction to order about removal of the constructed house on land of the Government path and for prohibitory injunction in relation to prevent the defendants from doing agricultural work on the path to the plaintiffs, were prayed. 3. The defendants No.1 to 3 filed joint written statement before the trial Court and denied the pleadings of the plaint. According to the pleadings of the above defendants, some co-owners of the agricultural lands owned by the plaintiffs had not been made party to the suit. 3. The defendants No.1 to 3 filed joint written statement before the trial Court and denied the pleadings of the plaint. According to the pleadings of the above defendants, some co-owners of the agricultural lands owned by the plaintiffs had not been made party to the suit. It was admitted that in revenue record, the disputed survey No.21 is recorded as Government path but before more than last 40 years, from the lands of defendants, Ashta-Kannod Damar Road has been built, which is being used by all the parties to the suit and other villagers for going to their agricultural lands and Bhagwanpura. After construction of damar road, survey No.21 is not being used as way, thus at present no any way exists on the land of survey No.21. The plaintiffs themselves have constructed a well upon the land of survey No.21. The defendants have not made any encroachment in any manner. On the road which is being used as a way since more than last 40 years, the defendants have not made construction of house. On the spot, pakka dammar road is available to plaintiffs and other agriculturists of village Bhagwanpura. The plaintiffs are not having any right to file the suit for removal of alleged encroachment over the Government land. The lands of defendants are situated in eastern direction of the land of survey No.21. The plaintiffs suit is not legally sustainable. Thus, the dismissal of the suit was prayed. 4. The defendant No.4 State of M.P. did not file any written statement before the trial Court. 5. After recording the evidence, the trial Court of Civil Judge Class-I, Ashta recorded findings that the defendants have encroached over the land of Government way situated between town Ashta to Bhagwanpura, the plaintiffs are entitled for prayed injunction, the suit is not having any fault of non-joinder of parties, thus the plaintiffs' suit was partially decreed. 6. Present respondents No.1 to 3 filed an appeal against the judgment and decree passed by the trial Court before the appellate Court. The appellate Court by above mentioned judgment and decree had allowed the appeal of the original defendants No.1 to 3 and dismissed the suit of the present appellants. 7. 6. Present respondents No.1 to 3 filed an appeal against the judgment and decree passed by the trial Court before the appellate Court. The appellate Court by above mentioned judgment and decree had allowed the appeal of the original defendants No.1 to 3 and dismissed the suit of the present appellants. 7. The learned counsel for the appellants after taking me through the records of the Courts below contended that from the oral evidence of retired Superintendent of Land Record, T.C.Vinodiya (PW2) and his previous report (Ex.P-6), trace map (Ex.P-7), field book (Ex.P-8) and panchnama (Ex.P-3), it was proved that the respondent No.1 Mangilal had encroached over 0.30 acre land of Survey No.21, which is recorded as Government way. It has been argued that from above documentary evidence, the evidence given by Mohd. Israr (PW1) finds support and thus the trial Court has rightly decreed the appellants' suit, but the first appellate Court had committed legal error in allowing the defendants' appeal and in dismissing the appellants' suit as it is undisputed that the disputed Survey No.21 is recorded as land of Government way. 8. The appellate Court recorded the findings in its judgment that previously in revenue papers in Survey No.21, Government path is recorded but it was proved that the previous way is not being used for last more than 40 years, because a damar road has been constructed, which is being used by the plaintiffs and the defendants both and the plaintiffs are not having any right to file the suit for removal of alleged encroachment made by the concerned defendants and only State could proceed for removal of encroachment. Instead of alleged previous path, a Pakka damar road is available which is being used by the plaintiffs for reaching their fields and it was established from evidence that now no any way exists on the land of Survey No.21. Thus, no any legal right was available to the plaintiffs for filing any suit and after allowing the appeal, the trial Court's decree was set aside. 9. It would be significant to mention here that in para No.4 of the appeal memo relating to this second appeal, it has been mentioned that the plaintiffs had got diverted their above described agricultural lands, thus it is clear that the relating agricultural lands of the ownership of present appellants/plaintiffs is not now agricultural land. 9. It would be significant to mention here that in para No.4 of the appeal memo relating to this second appeal, it has been mentioned that the plaintiffs had got diverted their above described agricultural lands, thus it is clear that the relating agricultural lands of the ownership of present appellants/plaintiffs is not now agricultural land. Thus, there is no any question of use of alleged Government path recorded in the disputed land of Survey No.21 by the present appellants for agricultural purposes. 10. Original plaintiff No.1 Kudrat Noor had died during the pendency of the first appeal and thus his LRs were substituted before the first appellate Court. 11. It has not been disputed by the present respondents that land of Survey No.21 of Village Bhagwanpura is recorded as Government way, but it is the case of the respondents that as a new Pakka damar road had been constructed 40 years before filing of the suit, thus the alleged way of Survey No.21 is not being used by anyone. One of the plaintiff Mohd. Israr (PW1) deposed in his examination-in-chief that due to encroachment of defendants over the land of Government way, their path for reaching their agricultural land has been obstructed, but he had clearly admitted in cross-examination (Para 8) that all the people are now using Ashta-Kannod damar road for bringing their crops from their fields. He also deposed in Para 9 that now all the people are using the Ashta Kannod damar road. He has clearly admitted in Para 6 that the land of Survey No.21 is adjacent to the Ashta-Kannod road on the western side. He clearly admitted in Para 17 that since the creation of Ashta-Kannod damar road, afterwards that road is being used by all the people for agricultural work. 12. The retired Land Superintendent T.C. Vinodia (PW2) had also clearly admitted in his cross-examination (Para 5) that the path of Survey No.21 had closed after formation of Ashta Kannod damar road and all the people, who are having agricultural lands nearby the damar road are now using damar road only and the plaintiffs and defendants all are using Ashta-Kannod damar road to reach their fields. 13. 13. Thus, from above mentioned clear admissions of the plaintiffs’ witnesses, the evidence given by the defendants' witnesses Mangilal (DW1), Nandkishore (DW3) and Shivcharan (DW4) received support on the point that the previous Government path recorded over the land of Survey No.21 had ended about 40 years before filing of the suit by the present appellants. In these circumstances, the plaintiffs were not having any cause of action in relation to the extinguished previous path of Survey No.21 after formation of Ashta Kannod damar road. 14. Much emphasis has been given by the appellants' counsel on the fact that in the Panchnama (Ex.P-3) and report (Ex.P-4) given by the above mentioned T.C.Vinodiya (PW2), it is clearly mentioned that on 0.30 acre area of Survey No.21, the encroachment by defendants Mangilal, Bapulal and Badrilal was found, but even in these documents, no any house of any defendant has been mentioned on the encroached land of Survey No.21. It appears from the documentary evidence filed by both of the parties that each party got demarcation of its agricultural land. From certified copies of other demarcation proceedings (Ex.D-11 and Ex.D-13) dated 14.6.2001 given by the Revenue Inspector to the Tahsildar, it is clear that original plaintiff No.1 Kudrat Noor, plaintiff No.2 Rauoof Khan and brother of plaintiff No.3, Manzoor Khan and Hameed Khan have also encroached over some different parts of the land bearing Survey No.21 of Bhagwanpura. In total, encroachment of different 12 persons with relating area has clearly been mentioned in Ex.D-11 and Ex.D-13. It also indicates that after extinguishment of old Government way of Survey No.21, present appellants and their relatives have also encroached over portions of the land of Survey No.21. It is clear that the appellants are also encroachers. In above mentioned established facts, one encroacher cannot object about encroachment made by the other. 15. The trial Judge had totally ignored the substantial and material admissions made by the plaintiffs' witnesses. Thus, it appears that the judgment and decree of the trial Court was perverse and against the evidence available on record and thus, it is clear that the appellate Court had not committed any mistake or illegality in reversing the judgment and decree passed by the trial Court. 16. Thus, it appears that the judgment and decree of the trial Court was perverse and against the evidence available on record and thus, it is clear that the appellate Court had not committed any mistake or illegality in reversing the judgment and decree passed by the trial Court. 16. In view of the aforesaid discussion, I have not found any substance or the circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merit deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.