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2013 Supreme(MP) 23
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds- JhokLro
A.K. Shrivastava, J.
vkse izdk’k rFkk ,d vU; fo- v’kksd dqekj rFkk ,d vU;
Om Prakash and another v. Ashok Kumar and another
izdh.kZ vihy Øekad 1061 lu~ 2003 ¼tcyiqj½( vij ftyk U;k;k/kh’k] lkxj] dSEi [kqjbZ }kjk flfoy vihy Øekad 140&,@2002 esa ikfjr fu.kZ; fnukad 12-3-2003 ds fo#)(
fu.khZr fnukad 4-1-2013A
Miscellaneous Appeal No. 1061 of 2003 (Jabalpur); against judgment dated 12-3-2003 passed in Civil Appeal No. 140-A/2002 by Additional District Judge, Sagar, Camp Khurai;
Decided on 4.1.2013.
eksgEen vyh rFkk fot; ‘kqDyk vihykFkhZx.k dh vksj ls( bf’r;kd gqlSu izR;FkhZ Ø- 1 dh vksj ls] jkgqy tSu] ljdkjh vf/koäk izR;FkhZ Øekad 2@jkT; dh vksj lsA
Mohd. Ali and Vijay Shukla for appellants, Ishtiaq Hussain for respondent No. 1; Rahul Jain, Government Advocate for respondent No. 2/State.
Headnote:¼1½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 250 rFkk 257 ¼Hk½ & dCts ds fy, flfoy okn & gd ;k HkwfeLokeh vf/kdkj ij vk/kkfjr & fdlh Hkh jhfr esa oftZr ugha & ,slk okn pykus ;ksX; gSA
oknh us ;g okn vius gd vFkkZr~ HkwfeLokeh vf/kdkj ds vk/kkj ij dCts ds fy, izLrqr fd;k gS ftls fdlh Hkh jhfr esa flfoy U;k;ky; esa oftZr gksuk ugha dgk tk ldrkA 1976 jk fu 146 ¾ 1976 ts ,y ts 278 voyafcrA 2000 jk fu 141 ¼mPpre U;k-½ rFkk ¼2005½ 10 ,l lh lh 124 vuqlfjrA 1989 ¼1½ e iz ohDyh uksV~l 84] 1998 jk fu 89] 2005 jk fu 70] 1979 ¼1½ e iz ohDyh uksV~l 237] 1980 ¼1½ e iz ohDyh uksV~l 204] 1985 e iz ohDyh uksV~l 224 RkFkk 1992 ¼2½ fof/k HkkLoj 84 fufnZ”VA ¼iSjk 9 rFkk 10
¼2½ flfoy ÁfØ;k lafgrk] 1908 & /kkjk 9 & O;kfIr & dCts ds fy, flfoy okn & gd ;k HkwfeLokeh vf/kdkj ij vk/kkfjr & pykus ;ksX; gSA ¼iSjk 9 rFkk 10
¼3½ flfoy ÁfØ;k lafgrk] 1908 & vk- 26 fu- 9 & O;kfIr & jktLo U;k;ky; }kjk iwoZ esa lhekadu & gd ij vk/kkfjr flfoy okn & Hkwfe dk lhekadu djus ds fya, jktLo vf/kdkjh dks U;k;ky; dfe’uj ds :i esa fu;qä djus ds fya, vkosnu & oftZr ugha & flfoy U;k;ky; uohu deh’ku tkjh dj ldrk gSA 2009 ¼2½ e iz ohDyh uksV~l 2 voyafcrA ¼iSjk 11
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 250 and 257 (x) -- civil suit for possession -- based on title or Bhumiswami right -- not barred in any manner -- such suit is maintainable.
The plaintiff on the basis of his title i.e. Bhumiswami right has filed the present suit for possession which cannot be said to be barred in any manner in civil Court. 1976 RN 146 = 1976 JLJ 278 relied on. 2000 RN 141 (SC) and (2005) 10 SCC 124 followed. 1989 (1) MPWN 84, 1998 RN 89, 2005 RN 70, 1979 (1) MPWN 237, 1980 (1) MPWN 204, 1985 MPWN 224 and 1992 Vidhi Bhasvar 84 referred to. [Paras 9 and 10
(2) Civil P.C., 1908 -- S. 9 -- scope of -- suit for possession -- based on title or Bhumiswami right -- is maintainable. [Paras 9 and 10
(3) Civil P.C., 1908 -- O. 26 R. 9 -- scope of -- earlier demarcation by Revenue Court -- civil suit for possession based on title -- application for appointment of Revenue Officer as Court Commissioner to demarcate the land -- not barred -- civil Court can issue fresh Commission. 2009 (II) MPWN 2 relied on. [Para 11
1. This Misc. Appeal has been filed under Order 43 Rule 1 of the Code of Civil Procedure, 1908 against the judgment dated 12.3.2003 passed by learned Second Additional District Judge, Sagar, Camp Khurai in Civil Appeal No. 140-A/2002 whereby the appeal has been allowed and the case has been remanded back to learned trial Court to decide the suit on merits.
2. In brief the suit of plaintiff (respondent No. 1 herein this appeal) as pleaded in the plaint is that he is the Bhumiswami of the agricultural land in question, the description whereof has been mentioned in the plaint. According to the plaintiff, the defendants No. 1 and 2 are the members of the Joint Hindu Family. In the revenue record, Khasra No. 823 (old Khasra No. 468/1) area 1.73 hectares situated in Village Beena ltawa has been recorded in the name of first defendant Om Prakash (appellant No. 1 herein this appeal) while Khasra No. 824 (old Khasra No. 468/1), area 1.21 hectares has been recorded in the name of second defendant Ramesh Kumar (appellant No. 2 herein this appeal). At the spot, both the khasra numbers are in the form of ‘Maidh’ and the total area is 2.940 hectares upon which these two defendants are cultivating the land jointly. Further it has been pleaded by the plaintiff that on the basis of muscle power these two defendants are trying to grab the land owned by the plaintiff. First of all, in the year 1984 the second defendant Ramesh Kumar encroached upon certain part of land of which plaintiff is the Bhumiswami but on getting it demarcated, he delivered the possession of the encroached portion back to the plaintiff. Thereafter the defendant No. 1 Om Prakash by embedding the flag stones on plaintiff’s land bearing survey No. 829, area 1 acre illegally dispossessed the plaintiff. Eventually, on 1.7.1992 the demarcation and the measurement was made in Revenue Case No. 5-A/2012 Year 1991-92 wherein the illegal possession of first defendant was found upon the plaintiff’s land, area 0.42 hectares but he did not deliver the possession to the plaintiff, on the contrary on the basis on possession by showing him to be Bhumiswami submitted necessary application in the Revenue Court for correction of the map.Further, it has been pleaded that the first defendant is also cultivating the crop and thereby causing monetary loss @ Rs. 900/- per annum to the plaintiff and, therefore, the plaintiff is entitled for the decree of compensation @ Rs. 900/- per annum for three years. Hence, the present suit has been filed for possession of the disputed property on the basis of Bhumiswami right and also on the basis of the terms of the demarcation which was made in favour of plaintiff by the Revenue Court with a further relief that the defendants be directed to pay damages of Rs. 2,700/- and for mesne profit @ Rs. 900/- per annum.
3. The first and second defendants filed a joint written statement and denied the plaint averments. In a special plea, it has been pleaded that by mistake in the demarcation proceedings, the land of plaintiff was found but the settlement which was made in favour of plaintiff has been later on set aside. According to the defendants, their father bought the property in question vide registered sale deed although the land has been bought in the name of defendants. The State of M.P. however did not file any written statement.
4. The learned trial Court framed necessary issues and after recording evidence of the parties dismissed it on merit by further holding that in view of the Full Bench decision of this Court Ramgopal Vs. Chetu1976 RN 146=1976 JLJ 278, the suit for declaration of Bhumiswami right and possession, if it is filed, the same is maintainable in the civil Court under section 9 CPC, but since the plaintiff has not sought any relief of declaration of Bhumiswami right, therefore, the suit was held to be not maintainable.
5. Against the aforesaid judgment and decree of learned trial Court, the plaintiff-respondent No.1 filed First Appeal before
