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2017 DIGILAW 1091 (MP)

Sumanbai v. Geetabai

2017-10-23

PRAKASH SHRIVASTAVA

body2017
JUDGMENT 1. Heard on the question of admission. 2. This second appeal under section 100 of the CPC is at the instance of the plaintiffs in the suit challenging the concurrent judgments of the two Courts below. Trial Court by the judgment dated 21.3.2016 had dismissed Civil Suit No.15-A/2015 and the first appellate Court by the judgment dated 3.10.2016 by dismissing the appeal, has affirmed the judgment of the trial Court. 3. The appellants had filed the suit for declaration, mutation and permanent injunction with the plea that the partition between the original plaintiff Girdharilal and original defendant No.1 Kailash and the remaining defendants had taken place in the year 1984-85 in the absence of the plaintiff Girdharilal. The suit properties were recorded in the name of the original defendant Kailash only for the namesake, whereas the appellants were in possession thereof. Since 1984-85 appellants had resisted the attempt of the respondents to take possession of the suit land and the Civil Suit No.9-A/1987 filed by the respondent Kailash was dismissed by the trial Court by the judgment dated 7.5.1997 affirming the possession of the appellant Girdharilal on the suit land. The respondents thereafter had initiated the proceedings before the Revenue Court under section 250 of the M.P. Land Revenue Code, hence the present suit was filed with the plea that the appellants had perfected their title by way of adverse possession. 4. The suit was opposed by the respondents by filing the written statement with the plea that Gopal had 3 sons namely Natthulal, Girdhari and Kailash. A partition had taken place in 1984 and the suit land had fallen in the share of Kailash and it was given to the appellant for share cultivation and the respondents were receiving the compensation and earlier suit was filed by the respondents for permanent injunction but the respondents could not prove their possession, therefore, it was dismissed. Trial Court had dismissed the suit finding that the appellants could not prove that the had perfected the title by way of adverse possession and they also could not prove that they have become Bhumiswami on the basis of being Moroshi Krishak. The first appellate Court has affirmed the finding of the trial Court. Trial Court had dismissed the suit finding that the appellants could not prove that the had perfected the title by way of adverse possession and they also could not prove that they have become Bhumiswami on the basis of being Moroshi Krishak. The first appellate Court has affirmed the finding of the trial Court. Learned counsel appearing for the appellants submits that the appellants are in possession of the suit property for last 40 years and at least from 1987 when the suit was filed by the other side, the possession of the appellants had become adverse. He further submits that the appellants have become the Bhumiswami on the basis of being the Moroshi Krishak and that there is an admission of the respondents that the suit land was given on lease to the appellants. 5. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that both the Courts below have elaborately examined oral as well as documentary evidence. Though the appellants have been found to be in possession of the suit property but they have failed to prove the plea of adverse possession. The Courts below have found that the appellants’ witnesses had admitted that name of the respondent is recorded in the revenue record as Bhumiswami. It has been found that the land was given by the respondent to the appellant for the purpose of cultivation and that the appellants could not prove as to when the possession of the appellants had become adverse. The earlier suit was filed by the respondents for possession wherein the issue of title was not involved, therefore, merely on filing the suit for possession it cannot be presumed that the possession of the appellants had become adverse from that date, because for establishing the plea of adverse possession the appellants are required to prove open and hostile possession denying the title of the lawful owner which they have failed to prove in the present case. That apart the Supreme Court in the matter of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, reported in (2014)1 SCC 669 , has held that the declaration of ownership of land on the basis of adverse possession cannot be sought by the plaintiff but such a claim can be made by way of defence when arrayed as defendant, in proceedings against him. Counsel for the appellant has placed reliance upon the judgment of the Supreme Court in the matter of Bondar Singh and others v. Nihal Singh and others, reported in (2003)4 SCC 161 , but in that case the question of entitlement to seek declaration of title on the basis of adverse possession has not been decided. So far as the plea of becoming Bhumiswami on the basis of being Moroshi Krishak is concerned, this issue has been examined in detail by the trial Court in Para 31 of the judgment and the finding in this regard is finding of fact. Before this Court also counsel for the appellants has not pointed out as to how Bhumiswami rights had accrued to the appellants. 6. Having regard to the concurrent finding of fact recorded by the two Courts below, I am of the opinion that the appeal does not involve any substantial question of law, which is accordingly dismissed in limine.