JUDGMENT : Jai Kumar Pillai, J. The appellants/defendants/Gulab and others have filed this Second Appeal against the judgment and decree dated 10/02/2023 passed in RCA No.73-A/2018 by the Vth District Judge, Dr. Ambedkar Nagar, Mhow, District-Indore whereby the learned first appellate Court has dismissed the appeal, challenging the judgment and decree dated 19/11/2018 passed by Vth Civil Judge, Class-II, Dr. Ambedkar Nagar, Mhow, District-Indore in Civil Suit No.26- A/2015 whereby the learned trial Court decreed the suit filed by the respondent No.1/plaintiff/Radheyshyam. Facts of the case, in short are as under :- 2. The plaintiff/respondent No.1 filed a suit for possession, declaration, injunction and mesne profit with respect to suit property i.e. agricultural land bearing survey No.119/1, 119/2, 119/3 having total area of 1.16 Acre i.e. 0.470 hectare, situated at Village-Awalipura, Tehsil-Mhow, District - Indore (M.P.) 3. It is admitted fact in the present case that the suit land has been recorded in the name of appellant No. 1 to 3 after the demise of their father Shri Thawar Singh. It is also admitted fact that plaintiff moved an application before Nayab Tehsildar on 10-11- 2006 for correction of entries in revenue record, which was dismissed and thereafter an application on 08-01-2013 was also preferred regarding interference by defendants in the possession of plaintiff at suit land, which was also dismissed, against which an appeal was preferred by plaintiff before learned Sub Divisional Officer, Mhow which was registered as Case No.52/Appeal/2013- 14 and the same was also dismissed vide order dated 26-06-2014. Thereafter suit land has been parted amongst appellant No.1 to 3 by the Revenue Officer and their name is mutated on their respective share and they are in the actual possession of the suit land. 4. The plaintiff pleaded in his plaint that, suit land is the ancestral land of plaintiff. The name of his father is Babulal and the name of his grandfather is Nanuram Sharma. Suit land was recorded in the name of his grandfather in the revenue record of the year 1958-59 to 1963-64. Thereafter, without any right, name of Thawar S/o Somu Bheel is mutated in the revenue record. Father and grandfather of plaintiff has died and he was not aware about the revenue records and therefore he never obtained the copies of revenue record from the department. Plaintiffs forefathers were having possession over the suit property.
Thereafter, without any right, name of Thawar S/o Somu Bheel is mutated in the revenue record. Father and grandfather of plaintiff has died and he was not aware about the revenue records and therefore he never obtained the copies of revenue record from the department. Plaintiffs forefathers were having possession over the suit property. In the year 2006, when a high-way was taking shape near the suit land, then he obtained the revenue record and found that the name of Thawar is recorded against the suit land in the revenue record. It is alleged by the plaintiff that during the proceedings before learned revenue courts, defendants took the possession over suit land by force, illegally in the year 2013. Therefore, it was essential to file the present suit before learned trial Court. Plaintiff also alleged that defendants are eager to sale the suit land to other purchaser. 5. Appellants/Defendants filed their written statement and contested the suit. Defendants denied the pleadings of plaintiff in toto and further pleaded that plaintiff has himself pleaded before revenue authorities that suit land was donated by his grandfather Nanuram on 15/07/1953 and he does not have any document to show that such donation was ever revoked. The defendant further pleaded that suit land was given to Thawar under Bhu Daan Yagna Act, 1968 as he was landless person and thereafter his name was mutated in revenue records. It is further pleaded by the defendant that merely name of Nanuram recorded in revenue records till 1966 i.e. even after donation of such land in the year 1953, does not create any right in favour of plaintiff or Nanuram. Suit land is in the exclusive possession and ownership of Thawar since 1953. Suit has been filed on frivolous grounds by the plaintiff. Suit land is purchased by Thawar and at the relevant point of time they were illiterate and were not having any knowledge of law, so no document was executed but his name was mutated in the revenue record as owner and possessor. 6. It was further contended by the appellants/defendents that a dmittedly the name of Thawar is recorded in revenue record without any hindrance since 1966 and thus as per Section 117 of M.P. Land Revenue Code, 1959 the possession of Thawar and defendants can only be presumed over suit land and no evidence in contradiction has been lead by plaintiff thereof.
It was further contended by the appellants/defendents that a dmittedly the name of Thawar is recorded in revenue record without any hindrance since 1966 and thus as per Section 117 of M.P. Land Revenue Code, 1959 the possession of Thawar and defendants can only be presumed over suit land and no evidence in contradiction has been lead by plaintiff thereof. Father or grandfather of plaintiff have never initiated any proceedings against defendants. Whereas, Father of plaintiff Babulal has himself admitted the possession of defendants on suit land, since long in his statement before revenue authorities in the year 2006-07 and in such case, the story of snatching of possession in 2013 by defendants from plaintiff itself is proved to be false, which shows that plaintiff has not came with clean hands and the suit filed by plaintiff is barred by limitation and in alternate the defendant has acquired the title by the virtue of adverse possession. 7. It has been further contended that t he plaintiff could not plead or establish that why mutation of his father was not carried after the death of his grandfather and who all are the legal heirs of his grandfather or father, which also attracts the bar of non-joinder of parties. The plaintiff has sought possession of the suit land but he has not valued his suit as per the market value of the land and thereby he has under valued the suit and has not paid proper Court- fees thereof. The suit of plaintiff could not be decreed by the learned trial Court on account of principle of estoppel as well as adverse possession. Plaintiff has to prove his own case and he has not rendered just and proper explanation of being silent since 1966 to 2013. Inspite of the fact that possession of defendants was in the knowledge of plaintiff and his father too, and the name of defendants were recorded in revenue record as Bhumiswami since 1966. 8. It has been further contended that t he plaintiff admits that suit land was given in donation by his grandfather in the year 1953 and most probably he died in the year 1954, and he does not have any knowledge that when and how suit land came back in their possession or ownership and he do not have any evidence in support thereof.
Plaintiff also admits that he is ignorant of the fact that whether the land once donated can be revoked or not. Whereas it is a settled principle of law that once the donation is done then the donor cannot revoke it. As the price of suit land has been inflated so plaintiff has filed the present suit against defendants due to greediness. 9. Thereafter, 8 (eight) issues were framed by the learned trial Court, which are as follows :- 10. Thus, the evidence was led by both the parties. Plaintiff examined himself (PW/1) and Banshidhar (PW/2) in support of plaint, whereas defendants has examined himself Gulab (DW/1), Radheshyam (DW/2) and Ghudiya (DW/3) as witnesses in support of his defence, before the learned trial Court. Thereafter hearing both the parties learned trial Court has decreed the suit filed by the plaintiff/respondent No.1. Being aggrieved by the aforesaid judgment and decree Civil Regular Appeal was preferred by the appellants/defendants, before learned first appellate Court which was registered as Civil Regular Appeal No.73-A/2018 and the same has been dismissed, by the learned Vth District Judge, Dr. Ambedkar Nagar, Mhow, Dist. Indore vide impugned judgment and decree dated 10-02-2023. Being aggrieved by which, the present appellants/defendants preferred the present appeal on the following substantial questions of law :- “1. Whether the learned first appellate Court was justified in affirming the decree passed by the learned trial Court which had allowed the suit filed by the respondent/plaintiff for possession, declaration and injunction ?