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2023 DIGILAW 778 (MP)

Asharam v. Papuraja @ Raghvendra

2023-09-19

SUNITA YADAV

body2023
ORDER 1. Present second appeal under section 100 and 101 of CPC has been filed against the judgment and decree dated 22.2.2022 passed by Additional District Judge, Pichhore, District Shivpuri, (M.P.) in Civil Appeal No.27/2017 affirming the judgment and decree dated 8.12.2017 passed by the Civil Judge, Class-I, Khaniyadhana, District Shivpuri, in Civil Suit No.31-A/2015 by which the suit of appellants/plaintiffs was dismissed. The order relates to an application filed by the appellants/plaintiffs under Order 26 rule 9 of CPC. 2. Factual matrix of the case, in brief, are that the plaintiffs filed this suit stating therein that they are the owners of land in Village Aharwanpur, Tehsil Khaniyadhanna, District Shivpuri, bearing Survey No. 930, area 2.22 hectares . On this land 6 rooms are built. Three out of six rooms shown in the map annexed with the plaint, surrounded in red ink and the land on which the rooms are built is the disputed property/land. The said map annexed as 'A' is a part of the plaint. The said disputed property is adjacent to the Survey No.929 Area 0.50 Hectare which belongs to Defendant No. 1. The boundaries of both the survey numbers remained the same since the time of their ancestors and both the sides are in possession accordingly. The entire land of survey number 930 including the said disputed land is the ancestral property of plaintiffs and is under their possession. 3. The further pleading is that about a year ago, while constructing the said six rooms on the said disputed land for keeping the agricultural goods and crops etc. and for the security of the farm, the defendant no. 1-Pappu raja, got the demarcation done on the same spot. The construction was with the knowledge and consent of the said defendant. The plaintiffs have further pleaded in their plaint that after the construction, the defendant No.1 taking advantage of plaintiffs No. 1 to 4 being illiterate and belong to schedule caste grab the land under section 250 of M.P.L.R.C. in which after investigation, the unauthorized encroachment done by mistake on each other's land was removed from the spot and since there was no encroachment and therefore, matter was resolved vide order dated 9.9.2014. 4. 4. It is further pleaded that defendant No. 1 in collusion with Patwari again filed an application before the Tehsildar and proposed that the action should be taken against the plaintiffs for sending them to civil jail and in this regard, Sub Divisional Officer, issued a notice to plaintiffs for sending them to civil jail. Against which a writ appeal is pending. However the appellate authority is not deciding the appeal. Thereafter on 30.8.2015, the defendant No.1 came on the field and threatened the plaintiffs to evict from the disputed property. Thereafter, in the compelling circumstances, plaintiffs filed the present suit for declaration that the notice of revenue authority/S.D.O. for civil jail dated 23.9.2017 be declared as null and void and injunction against the defendant be granted to restrain them to evict the plaintiffs under the said notice. 5. That, defendant No. 1 filed his written statement denying all averments in the plaint and stated that all the old boundaries are altered by the plaintiffs and same has been gathered with proceeding initiated under section 250 of MPLCR therefore plaintiffs have no concerned with the disputed land therefore pray for dismissal of suit. 6. That, defendant No. 3 filed separate written statement and denied all the averments made in the plaint as all the proceeding concluded as per the provision of law therefore pray for dismissal of the suit. 7. On the basis of the aforesaid pleadings, the learned trial Court framed as many as eight issues in the matter and parties lead evidence to prove the said issues in their favour. The learned trial Court after appreciation of the evidence made available on record, vide its judgment and decree dated 8.12.2017 dismissed the suit filed by the appellants/plaintiffs. 8. Being aggrieved by the aforesaid judgment of the trial Court, the appellants/plaintiffs preferred First Civil Appeal No.27/2017 before the First Appellate Court who also dismissed the First appeal by affirming the judgment and decree passed by the trial Court, therefore, appellants/plaintiffs has occasion to file this second appeal under section 100 of C.P.C. 9. Assailing the findings recorded by the learned courts below, learned counsel for appellants/plaintiffs submits that the learned Courts below have committed grave error in disbelieving the the evidence lead by the appellants/plaintiffs. It was duty of the Courts below to appreciate the evidence properly which has not been done. Assailing the findings recorded by the learned courts below, learned counsel for appellants/plaintiffs submits that the learned Courts below have committed grave error in disbelieving the the evidence lead by the appellants/plaintiffs. It was duty of the Courts below to appreciate the evidence properly which has not been done. The learned appellate Court committed an error in not considering the facts that there is only boundaries disputes and same can be decided by issued commission even though filling of the application U/0 26 rule 9 therefore judgment and decree deserve to be set aside. 10. On the other hand, learned counsel for the respondents/plaintiffs supported the impugned judgment and decree passed by both the courts below and prayed for dismissal of the instant appeal being bereft of merit and substance. 11. Heard. 12. The plain reading of the plaint filed by the appellants/plaintiffs indicates cause of action has been stated to be arise on 6.3.2014 when the plaintiffs received a show cause notice of the Revenue Officer/S.D.O. under the proceedings of section 250 of MPLRC in respect to showing cause as to why not they be sent to jail. Plaintiffs have sought the reliefs that the notice of revenue authority/S.D.O. for civil jail dated 23.9.2017 be declared as null and void and injunction against the defendant be granted to restrain them to evict the plaintiffs under the said notice. At this juncture the provisions of section 257 of M.P. Land Revenue Code, 1959 are relevant which provides as below:- "257. Exclusive jurisdiction of revenue authoritiesExcept as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters :-" "*** "(x) any decision regarding reinstatement of a Bhumiswami improperly dispossessed and confinement in civil prison under section 250". ***" Thus in view of the above provision while examining this case it is apparent that an appeal against the order of S.D.O. Passed under section 250 of MPLRC was pending before the competent revenue appellate authority. ***" Thus in view of the above provision while examining this case it is apparent that an appeal against the order of S.D.O. Passed under section 250 of MPLRC was pending before the competent revenue appellate authority. Therefore, learned courts below rightly observed that the suit is barred by law in the light of provision of section 257 of MPLRC. 13. Counsel for the appellants/plaintiffs argued that learned first appellate Court has erred in dismissing the application of appellants filed under Order 26 rule 9 CPC for appointment of commissioner. To buttress his arguments, counsel for the appellants/plaintiffs has relied upon the judgment passed by this Court in the cases of Jaswant v. Deen Dayal, reported in 2011(2) M.P.L.J 576 and Prembai v. Ghanshyam, reported in 2010(3) M.P.L.J 345 . However, the facts and circumstances of the present case is totally different from aforementioned judgment relied by the appellants. In this case both appellants/plaintiffs and respondent have adduced oral as well as documentary evidence to prove their possession over the land in question so also the boundaries of disputed land. Learned Courts below have appreciated their evidence in accordance with law and found that the rooms are build on the land of plaintiffs having khasra No. 930. It is well settled that the scope of Order 26 rule 9 of CPC is very limited and under Order 26 rule 9 of C.P.C., no commissioner report can be called in order to ascertain the fact that who is in possession in a particular property. The parties are required to prove their case by way of evidence, therefore, it is the duty of the appellants/plaintiffs to first give evidence in support of their case. In this case both plaintiffs and defendant already adduced evidence in respect to possession of the suit land, therefore, first appellate Court has not committed error in dismissing the application under Order 26 rule 9 of C.P.C.. 14. The apex Court in the case of Navaneethammal v. Arjuna Chetty, reported in (1996) 6 SCC 166 held that if findings of the Courts below were based on appreciation of evidence, the High Court should not interfere. 15. The perusal of records reveals that the learned trial Court, upon due appreciation of evidence on record, recorded the findings that plaintiffs have failed to prove its case. 16. 15. The perusal of records reveals that the learned trial Court, upon due appreciation of evidence on record, recorded the findings that plaintiffs have failed to prove its case. 16. The learned first Appellate Court has also after due appreciation reconsidered the entire evidence and discussed the same for its judgment from para 5 to 37 and found that no illegality has been committed by the learned trial Court while dismissing the suit. 17. This Court in exercise of power under section 100 of CPC cannot interfere with the findings of fact unless and until they are perverse and without any record and while deciding the second appeal under section 100 CPC, the High Court is not required to re appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the courts below when the findings recorded by both the courts below were on appreciation of evidence. 18. In this case as discussed above, both the Courts below have recorded impeccable findings based on proper appreciation of evidence on record. Upon perusal of the judgment and decree of the Courts below and the arguments advanced, the appeal is found to be devoid of any substance because in the opinion of this Court, entire gamut of the matter is in the realm of facts of the case. No question of law much less substantial question of law arises warranting interference under section 100 of CPC. In the case of Apparaju Malhar Rao v. Tula Venkataiah @ Venkat Rao (dead), 2018 (1) MPLJ 567 it is held that in absence of any substantial question of law arising in appeal, appeal merits dismissal in limine. 19. Consequently, the judgment and decree dated 22.2.2022 passed by the Additional District Judge, Pichhore, District Shivpuri in Regular Civil Appeal No.27 of 2017 as well as the judgment and decree dated 8.12.2017 passed by Civil Judge, Class-I, Khaniyadana, District Shivpuri in Civil Suit No.31-A/2015 are hereby affirmed. 20. The Appeal fails and is hereby dismissed in limine.