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2011 jk fu 411 2011 RN 411
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds- JhokLro
A.K. Shrivastava, J.
izrkiflag e`r }kjk fof/kd izfrfuf/kx.k fo- eaxy [kka rFkk ,d vU;
Pratap Singh (dead) through LRs.
v.
Mangal Khan and another
f}rh; vihy dzekad 375 lu~ 1967 ¼tcyiqj½( fu.khZr fnukad 18-5-2011A
Second Appeal No. 375 of 1987 (Jabalpur),
Decided on: 18.5.2011
vfHkfu/kkZfjr % tc jktLo U;k;ky; dk vkns‘k izn‘kZ ih&1 oknh ds i{k esa vafre gks x;k rFkk izfroknhx.k }kjk bls ;k rks lafgrk ds v/khu ofj"B jktLo U;k;ky; esa vihy izLrqr djrs gq;s ;k flfoy U;k;ky; esa izfrnkok izLrqr dj ml vkns‘k dks vikLr djus dh izkFkZuk djrs gq;s dHkh Hkh vk{ksfir ugha fd;k x;k] fo}ku izFke vihy U;k;ky; dks ml vkns‘k dks fof/k dh n`f"V ls nks"kiw.kZ vfHkfu/kkZfjr djuk U;k;kuqer ugha FkkA ¼iSjk 14½
Lohdkjr% vkns‘k fnukad 31-5-74 izn‘kZ ih&1 esa uk;c rglhynkj us ;g vfHkfu/kkZfjr fd;k gS fd okni= esa iSjk 1 esa mfYyf[kr Hkwfe;ksa okn Hkwfe lfEefyr djrs gq;s ij oknh dk dCtk ekS:lh d`"kd ds :i esa gS rFkk bl izdkj] esjs er esa oknh izfroknhx.k dh vis{kk csgrj gd j[krk gS tks fyf[kr dFku esa vius Lo;a ds vk/kkj vuqlkj vfrpkjh gSA , vkb vkj 1972 ,l lh 2299 vuqlfjrA ¼iSjk 15½
oknh csgrj dCtk gd j[krk Fkk rFkk tc izfroknhx.k ¼mldh vis{kk csgrj gd ugha j[krs½ }kjk mls csn[ky dj fn;k x;k rc og dCtk iqu% LFkkiu ds fy, okn pyk ldrk gSA fo}ku fopkj.k U;k;ky; }kjk oknh dk dCtk iqu% LFkkiu ds fy, okn lgh&gh fMdzh fd;k x;kA , vkb vkj 1968 ,l lh 1165 vuqlfjrA ¼iSjk 16½
¼2½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && izFke vihy U;k;ky; ds fu"d"kZ && uk;c rglhynkj jktLo U;k;ky; ds vkns‘k dk xyr fuoZpu && f}rh; vihy esa gLr{ksi fd;k tk ldrk gSA , vkb vkj 1994 ,l lh 532 vuqlfjrA ¼iSjk 11 ls 13½
¼3½ vfrpkjh && dh gSfl;r && ml O;fDr dh vis{kk csgrj gd ugha j[krk tks Hkwfe ij ‘kkafriw.kZ dCtk j[krk gS && ;|fi og Hkwfe ij dksbZ gd ugha j[krk && fQj Hkh og ml O;fDr ds fo:) okn pyk ldrk gS ftlus mls Hkwfe ij ls cyiwoZd csn[ky fd;k gSA , vkb vkj 1937 ukx- 281 voyafcrA ¼iSjk 16½
¼4½ flfoy izfdz;k lafgrk] 1908 && /kkjk 11 && vfrpkfj;ksa ds fo:) dCtk iqu%LFkkiu ds fy, flfoy okn && izfroknhx.k }kjk ;g nkok djrs gq;s izR;k{ksi ugha fd, x, fd mUgsa izfrdwy dCts }kjk HkwfeLokeh vf/kdkj vftZr gks x, gSa && izfrdwy dCts ds vfHkopu dks vafrerk izkIr gks xbZA ¼iSjk 6½
(1) Land Revenue Code, 1959 (M.P.) -- S. 250 -- civil suit for restoration of possession and injunction by occupancy tenant -- order of Revenue Court in respect of occupancy tenancy in favour of plaintiff -- order neither challenged in appeal nor counter claim made in civil suit for setting aside of such order -- order became final -- occupancy tenant has better title than that of trespassers -- suit rightly decreed -- First appellate Court was not justified in holding the said order is bad in law.
Held: When the order of the Revenue Court (Ex. P-1) in favour of plaintiff became final and it was never challenged by the defendants either in the superior Revenue Court by filing the appeal under the Code or by filing counter claim in the civil Court praying to set aside the said order, the learned First Appellate Court was not justified in holding the said order is bad in law. [Para 14
Admittedly in the order dated 31.5.1974 (Ex. P-1) the Naib Tahsildar held that plaintiff is possessing the lands mentioned in para-1 of the plaint (including the suit land) as occupancy tenant and thus, according to me the plaintiff is having better title than that of defendants who according to their own stand in the written statement are the trespassers. AIR 1972 SC 2299 followed. [Para 15
The plaintiff was having better possessory title and when he has been dispossessed by the defendants (having no better title than him) he can sue for restoration of possession. The learned trial Court has rightly decreed the suit for possession of the plaintiff, AIR 1937 Nag. 281 relied on. AIR 1968 SC 1165 followed. [Para 16
(2) Civil P.C., 1908 -- S. 100 -- findings of first appellate Court -order of Naib Tahsildar/Revenue Court misinterpreted -- interference can be made in second appeal. AIR 1994 SC 532 followed. [Para 11 to 13
(3) Trespasser -- status of -- he has no better title than a person who enters into peaceful possession of land -- although he might not have any title to land -- Still he can sue against person who has forcibly dispossessed him from the land. AIR 1937 Nag. 281 relied on. [Paras 16
(4) Civil P.C., 1908 -- S. 11 -- civil suit for restoration of possession against trespassers -- cross-objections not filed by trespassers claiming that they have acquired Bhumiswami rights by adverse possession -- plea of adverse possession attained finality. [Para 6
1. This second appeal has been filed at the instance of plaintiff against the reversing judgment of learned First Appellate Court allowing the appeal of defendants and setting aside the judgment and decree of learned Trial Court decreeing the suit of plaintiff.
2. The plaintiff-appellant filed suit for possession and injunction in respect of certain agricultural land which is the subject matter of the suit and the description whereof has been mentioned in the plaint. According to the plaintiff, he is the Bhumiswami of the suit property and the defendants who are father and son have encroached upon the suit property area 0.75 acres delineated in the map filed along with the plaint in Asad Samwat 2036 (June 1979). The suit has been filed on the basis of occupancy tenancy right which was conferred to plaintiff vide order dated 31.5.1974, passed by the Naib Tahsildar in Case No.7A/46/73-74 and it was directed that his name be entered as occupancy tenant in the revenue record. It is the further case of plaintiff that he submitted an application in the Revenue Court which was registered as Case No. 32A/12/1979-80 and the measurement of his land was made by the Revenue Court and it was found that defendants are illegally possessing 0.75 acres of land of which the plaintiff is the occupancy tenant. Despite the plaintiff served notice on the defendants they did not remove their illegal possession and hence, the suit has been filed for possession on the basis of title of occupancy tenancy right against the defendants who are strangers and trespassers according to the plaintiff
3. The defendants filed written statement and denied the plaint averments. According to them, the land was owned by one Harbans Singh who is residing for years together in Delhi and left the village Kanjiya. The inhabitants of the village have illegally taken possession of his land. The plaintiff and defendants have also encroached upon the land of said Harbans Singh. According to them, the Revenue Court wrongly found the plaintiff to be the occupancy tenant of said Harbans Singh and further that he is possessing that land as an occupancy tenant, The defendants further pleaded that they are possessing the suit property for last 25 years (the written statement was filed on 5.11.1981) and denied this fact that they encroached upon the suit property in June, 1979 (No Revenue record has been filed by them). A plea of adverse possession has also been set up by the defendants. Hence, it has been prayed that the suit be dismissed.
4. Learned Trial Court framed necessary issues and after recording the evidence of the parties came to hold that the plaintiff was possessing the suit property as occupancy tenant, however, the defendants have encroached upon the suit property and hence, decreed the suit.
5. The defendants filed first appeal before learned lower Appellate Court which has been allowed by the impugned judgment and decree and suit of plaintiff has been dismissed. However, learned First Appellate Court did not find that defendants have acquired the Bhumiswami right by way of adverse possession.
6. In this manner this appeal has been filed by the plaintiff. The defendants have not filed cross-objections claiming that they have acquired Bhumiswami right by adverse possession. Hence, the fact that they did not acquire the said right by adverse possession has attained finality.
7. This Court on 12.1.1988 admitted the appeal on the following substantial question of law:-
Whether the document Ex. P-1 gives any or at least better title to the appellant as compared with the respondents and whether on that account the appellant is entitled to remain in possession of the suit lands?"
8. I have heard Shri J.L. Soni, learned counsel for the appellants and Shri Prashant Sapre, learned counsel for the respondents. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed.
9. On bare perusal of the pleadings of plaintiff this Court f
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