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2010 Supreme(MP) 689
2011 jk fu 347 2011 RN 347
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ;w-lh- ekgs‘ojh
U.C. Maheshwari, J.
pafnzdk izlkn frokjh fo- e-iz- jkT;
Chandrika Prasad Tiwari
v.
State of M.P.
f}rh; vihy dzekad 1166 lu~ 2008( ¼tcyiqj½( prqFkZ vij ftyk U;k;k/kh‘k] jhok }kjk flfoy vihy dz- 78,@07 esa ikfjr fu.kZ; ,oa fMdzh ds fo:)( fu.khZr fnukad 17-9-2010A
Second Appeal No. 1166 of 2008 (Jabalpur); against judgment and decree passed by IVth Additional District Judge, Rewa in Civil Appeal No. 78A/07;
Decided on: 17.9.2010
Advocates appeared:
Himanshu Dwivedi for appellant.
Headnote:¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 117 && [kljk ds fVIi.kh ds LraHk esa fdlh l{ke izkf/kdkjh ds vkns‘k ds fcuk dCtk dh izfof"V;k¡ && dh mi/kkj.kk && ;g fu"d"kZ ugha fudkyk tk ldrk fd dCtk fof/kd gSA ¼iSjk 6½
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 158 && iokbZ Hkwfe dk dCtk/kkjh gksus ds vk/kkj ij HkwfeLokeh vf/kdkjksa dh ?kks"k.kk ds fy, nkok && izfrdwy dCtk dk Hkh nkok fd;k x;k && [kljk ds fVIi.kh ds LraHk esa fdlh l{ke vf/kdkjh ds vkns‘k ds fcuk dCtk dh izfof"V;k¡ && iokbZnkj }kjk dc dCtk fn;k x;k lkfcr ugha && izfrdwy dCtk ds la?kVd lkfcr ugha && HkwfeLokeh ds vf/kdkj izksn~Hkwr ugha gksrsA ¼iSjk 2 rFkk 6½
¼3½ ifjlhek vf/kfu;e] 1963 && /kkjk 27 rFkk vuq- 65 && izfrdwy dCtk ds vk/kkj ij gd dh ?kks"k.kk rFkk ‘kk‘or O;kns‘k ds fy, okn && [kljk ds fVIi.kh ds LraHk esa fdlh l{ke izkf/kdkjh ds vkns‘k ds fcuk dCtk dh izfof"V;k¡ && izfrdwy dCtk ds la?kVd lkfcr ugha && iV~Vk iznku fd, tkus ds fy, vkosnu Hkh [kkfjt fd;k x;k && okn Bhd&gh [kkfjt fd;k x;kA ¼iSjk 6½
¼4½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && dh O;kfIr && [kljk izfof"V;ksa ds laca/k esa nksuksa fupys U;k;ky;ksa ds ,d gh fu"d"kZ && f}rh; vihy esa gLr{ksi ugha fd;k tk ldrkA , vkb vkj 1989 ,l lh 1809 vuqlfjrA ¼iSjk 7½
¼5½ flfoy izfdz;k lafgrk] 1908 && vk- 39 fu- 1 rFkk 2 && fof/kd gd rFkk dCtk lkfcr ugha && varfjr fu"ks/kkKk iznku ugha dh tk ldrhA , vkb vkj 1983 ,l lh 742 vuqlfjrA 1986 ¼1½ e-iz- ohDyh uksV~l 116 voyafcrA ¼iSjk 8½
(1) Land Revenue Code, 1959 (M.P.) -- S. 117 -- without any order of competent authority entries of possession in remarks column of Khasra -- presumption of -- no inference can be drawn that possession is legal. [Para 6]
(2) Land Revenue Code, 1959 (M.P.) -- S. 158 -- claim for declaration of Bhumiswami rights being possession holder of Pawai land -- claim of fadverse possession also made -- entries of possession in remarks column of Khasra without any order of competent authority -- when possession was given by Pawaidar not proved -- ingredients of adverse possession not proved -- rights of Bhumiswami not accrued. [Paras 2 and 6]
(3) Limitation Act, 1963 -- S. 27 and Art. 65 -- suit for declaration of title and perpetual injunction on basis of adverse possession -- entries of possession in remarks column of Khasra without any order of competent authority -- ingredients of adverse possession not proved -- application for granting patta also rejected -- suit rightly by rejected. [Para 6]
(4) Civil P.C., 1908 -- S. 100 -- scope of -- concurrent findings of Courts below regarding khasra entries -- such findings are findings of facts -- interference cannot be made in second appeal. AIR 1989 SC 1809 followed. [Para 7]
(5) Civil P.C., 1908 -- O. 39 Rr. 1 and 2 -- legal title and possession not proved -- interim injunction cannot be granted. AIR 1983 SC 742 followed. 1986 (I) MPWN 116 relied on. [Para 8]
1. The appellant/plaintiff has directed this appeal under section 100 of the CPC being aggrieved by the judgment and decree dated 29.7.2008 passed by IVth Additional District Judge, Rewa, in Regular Civil Appeal No. 78-A/07 upholding the judgment and decree dated 30.4.07 passed by the IVth Civil Judge, Class II, Rewa in Civil Original Suit No. 172-A/2006, dismissing his suit for declaration and perpetual injunction filed against the respondent with respect of the revenue land bearing Survey No. 553 area 24 dismil situated in Village Chhijwar recorded in the name of respondent/State in the revenue record.
2. The facts giving rise to this appeal in short are that the appellant herein filed the above mentioned suit against the respondent contending that some partition took place between his fore-father and fore-father of Ram Prasad. In such partition, besides the other land, the aforesaid land bearing SN 553 area 24 dismil (old No. 446) was given in the share of his fore-father. As per further averments after abolition of Pavaidar rights vide dated 1.7.1954, such land was remained in cultivation of the appellant and on coming into force the M.P. Land Revenue Code in 1959, by virtue of section 158 of the same, he has become the Bhumi Swami of such land but in spite giving notice to the respondent, his name was not recorded as Bhumi Swami in the record of rights, on which, he has filed the impugned civil suit for declaration and perpetual injunction with respect of such land.
3. On behalf of the respondent, in spite the service of the notice neither appearance was given nor any written statement was filed, on which an ex parte evidence of the appellant was recorded in the matter. On appreciation of such evidence, the Trial Court after holding, that mere on the basis of entries in the remark column of Khasra showing the possession of the appellant over the disputed land, being made the same without any order of the Competent Revenue Officer, it could not be inferred that the appellant has perfected any right or title of Bhumiswami over such land, dismissed the suit.
4. On challenging such judgment and decree of the Trial Court before the appellate Court, on consideration, by affirming the same, the appeal has been dismissed, on which, the appellant has come forward to this Court with this appeal.
5. Shri Himanshu Dwivedi, learned counsel for the appellant after taking me through the pleadings of the plaint, evidence available on record and the exhibited papers, the khasra entries from Exh. P-3 to Exh. P-13 in which in the remark column possession of appellant is mentioned, argued that such material aspects have not been taken into consideration by the Courts below with proper approach and his suit has been dismissed under wrong premises. According to him he is coming in possession of the disputed land from the time of his fore-fathers and thereby he has perfected the title on it by adverse possession under the provision of the Limitation Act on completing the period of thirty years in possession of such land but both the Courts have not examined the matter with this approach and, prayed for admission of this appeal on the proposed substantial questions of law mentioned in Para 9 (a) to 9 (c) of the appeal memo.
6. Having heard the counsel, I have carefully gone through the record of the Courts below and also perused the impugned judgments. It is undisputed fact on record that the disputed land was always recorded in the name of State of M.P. and I have not found any document showing that at any point of time the disputed land was recorded in the name of the appellant or his forefathers. Besides this, no other document is available on the record showing that at any point of time the possession of the land was given to the appellant or his fore-fathers by any Pavaidar or any other Competent Authority. The entire argument of the appellant was based on Exhs. P-3 to P-13 the khasra of the disputed land from the year between the period 1
