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2020 DIGILAW 292 (MP)

Maganlal v. Modi Co-operative Society Ltd.

2020-02-25

ANJULI PALO

body2020
JUDGMENT 1. This appeal under Section 96 of the Code of Civil Procedure has been preferred by the appellants/defendants being aggrieved by the judgment and decree dated 28.02.2006 passed by the XII Additional District Judge, Fast Track Court, Jabalpur in Civil Suit No. 53-A/2003, whereby learned Court below passed the decree against the present appellants/defendants to deliver vacant possession of the suit land to the respondent/plaintiffs. 2. In brief, the case filed by the respondent is that the respondent/plaintiff is a registered co-operative society working through its President. The suit land bearing Khasra No. 44 was purchased by the Society to establish a school. Remaining land was sold to different shareholders after plotting the area. The appellants/defendants encroached some part of the disputed land which is shown in the suit map. They are not ready to vacate the land. The appellants/defendants denied the claim of the respondent/plaintiff and pleaded that the suit land was granted to them by Late Ishwari Prasad with the consent of his father. Their names have been mutated in the year 1984-1985. They have not encroached upon the suit land. They are in possession of the suit property since the year 1976 and this fact was in knowledge of the respondent/plaintiff, hence the respondent/plaintiff is not entitled for any relief. 3. After considering the evidence produced by both the parties, learned trial Court came to the conclusion that the respondent/plaintiff is the owner of the suit property bearing Khasra No. 44. In the suit map, the area shown as B and C admeasuring 962 sq. ft. have been illegally encroached upon by the appellants/defendants. Thus, the suit was partly decreed by the trial Court in favour of the respondents/plaintiffs. The appellants/defendants were directed to deliver vacant possession of the suit property to the respondent/plaintiffs and also bear the cost of suit. 4. The aforesaid finding is challenged by the appellants/defendants before this Court mainly on the ground that the respondent/plaintiff has failed to prove that the suit property was encroached by the appellants/defendants and that the trial Court has not considered the fact that the appellants/defendants were in possession of the suit property since the 1976 with ownership rights. 5. The appellants also contended that the learned trial Court wrongly held that the cause of action arose since 05.11.1998. Learned trial Court has wrongly held that the suit filed by the respondent/plaintiff is within time. 6. 5. The appellants also contended that the learned trial Court wrongly held that the cause of action arose since 05.11.1998. Learned trial Court has wrongly held that the suit filed by the respondent/plaintiff is within time. 6. During the argument, learned counsel for the appellant drew the attention of this Court towards the pleadings of the plaint and stated that the respondent/plaintiff has not pleaded material facts in his plaint. The evidence has been pleaded which is against the provisions of Order 6 Rule 4 of CPC. The case of the respondent/plaintiff is also affected adversely in the light of Order 7 Rule 1(e) of CPC. 7. Heard learned counsel for the parties. Perused the record. 8. It is not in dispute that the respondent/plaintiff is a registered society. The society has sale deed Ex. P/1 which proved that the suit land was purchased by the society in the year 1972. In support of aforesaid sale deed, testimony of Surendra Pillai (PW-1) was found unrebutted. After considering the finding of learned trial Court, this Court is not inclined to disbelieve his testimony which is duly supported by other evidence. There is a map (Ex.P/2) which was passed by the Town and Country Planning Department after execution of the sale deed (Ex.P/1) in favour of the respondent/plaintiff which proved that the suit property was purchased for building of a school. This fact has also been supported by the testimony of T.R.Verma (PW-2) which is unchallenged by the appellants in his crossexamination. On the contrary Maganlal did not claim that the suit property bearing Khasra No. 44 was his own property, nor he filed any document to rebut the evidence produced by the respondent to establish their ownership over the suit property. In the saledeed (Ex. P/1), it is specifically mentioned that after purchasing the property, respondent/plaintiff took over the possession of the suit land. 9. The appellants/defendants filed receipts Ex. D/1, D/2, D/4 and D/5 which establish that the appellants were in possession of the suit property after the execution of the sale deed however, they failed to produce any evidence to establish that they have legally acquired title over the suit property. 10. In paragraph 16 of the impugned judgment, learned trial Court specifically explained that the receipt issued by Nagar Nigam/Corporation were sufficient to prove that they belong to the suit property. 10. In paragraph 16 of the impugned judgment, learned trial Court specifically explained that the receipt issued by Nagar Nigam/Corporation were sufficient to prove that they belong to the suit property. Further that, Maganlal (DW-1) himself admitted that he has constructed a house over Khasra No. 44. He has also constructed kachchi bari without any proof of title over the suit property. He further admitted that in the year 1976, he constructed one room over the suit property and thereafter, constructed other rooms. 11. T.R.Verma (PW-2) stated that he filed several complaints against the appellants with regard to encroachment and use of electric connection before different forums. The complaints Ex. P/3 to P/5 are filed in support of his contentions. To find out whether the appellants encroached upon the suit land and constructed tapir and bari over it, the trial Court appointed Vishal Khare (PW-3) as a Commissioner for spot inspection who found that on the area shown in the site map (Ex. P/13) as A B C D, the appellants/defendants made construction over the suit land in about 962 sq.ft. The report of the Commissioner is also corroborated by mauka panchnama Ex. P/11. Both these documents shows that commission was executed in presence of the appellants. This fact is also admitted by Maganlal (DW-1) in his evidence. It is pertinent to note that on intimation (Ex. P/17), appellant Maganlal has admitted his signature which proves that intimation about the demarcation was given to him. 12. Learned counsel for the appellants further contended that the respondent failed to gave necessary particulars in the plaint. In the opinion of this Court, the appellants had opportunity to cross-examine the plaintiff witnesses on the said particulars. Further that he can claimed to provide such particulars before the trial Court. At this stage, on that ground judgment passed by learned trial Court cannot be interfered. 13. Learned counsel for the appellants placed reliance in the case of Narendra Prasad Soni vs. Manju Lata and others (2002) 3 CivilLJ 234 passed by the Co-ordinate Bench of this Court in S.A. No.64/2001, in which facts of the case are entirely different from the present case and principle laid down by the Co-ordinate Bench of this Court is not applicable in the present case. 14. 14. It is also alleged by learned counsel for the appellants that the suit of the respondent was time barred, which was discussed by the trial Court in issue no.4. The trial Court held that the respondent claiming right of adverse possession on the suit property. Thus, burden lies on them to prove, when their possession became adverse or hostile. In this regard, there is no evidence has been adduced by the appellants to establish that on which date their possession became adverse. 15. Apparently, this Court is not inclined to accept the contention of the appellants that Section 6 of specific relief fact is applicable in the case for the adverse possession under Article 65 of the Indian Limitation Act. Limitation is 12 years. Respondent filed the suit within 12 years. As per the respondent, the appellants encroached their land between year 1995 to 1998. Thus, the learned trial Court has rightly held that the suit filed by the respondent is within prescribed limitation. 16. Learned counsel for the respondent placed reliance in the case of Murlidhar and another vs. Board of Revenue and others 2013 RN 277 passed by the Co-ordinate Bench of this Court in W.P. No.18152/2012, in which it is held that :- 'The proceeding under Section 129 for demarcation was conducted by the Tahsildar and had attained finality. If the petitioners had any grievance with regard to the said order they were required to challenge the same in accordance to law by filing an appeal or revision against the said order by invoking the provisions of Section 44 or Section 50 of M.P. Land Revenue Code. If the petitioners felt that the order passed under Section 129 is without notice to them and without hearing them, they should have challenged the said order in accordance to law. Having not done so, the order becomes a final order and based on the same if the possession of the respondents are restored." 17. Thus, the learned trial Court duly appreciated all the evidence and considered all the aspects raised by the appellants before the trial Court. There is no perversity or illegality in the impugned judgment. In the opinion of this Court, appeal is liable to be dismissed. 18. Accordingly, this appeal is hereby dismissed .