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2017 Supreme(MP) 43
IN THE HIGH COURT OF MADHYA PRADESH
Ved Prakash Sharma, J.
State of M.P. (Through Collector) v. Dev Gir and another
Second Appeal No.137 of 1999 (Indore); against judgment and decree passed by First Additional District Judge, Ujjain in Civil Appeal No.58-A/1997; Decided on 31.1.2017.
Sudhanshu Vyas for appellant/State;
B. I. Mehta with J. B. Mehta for respondents.
Headnote: ¼1½ flfoy izfØ;k lafgrk] 1908 & /kkjk 100 & fupys U;k;ky;ksa ds rF; ds ,d&gh fu"d"kZ & lk{; ij vk/kkfjr & gLr{ksi ugha fd;k tk ldrk & fdarq HkwfeLokeh vf/kdkj vtZu djus ds fo"k; esa rF; ds ,d&gh fu"d"kZ & vfHkys[k ij dh lk{; ds izfrdwy & ,sls fu"d"kZ foi;ZLr gSa & f}rh; vihy esa gLr{ksi fd;k tk ldrk gSA ¼2003½ 4 ,l lh lh 161 vuqlfjrA ¼2005½ 2 ,l lh lh 500 fufnZ"VA ¼iSjk 11] 12 ,oa 14½
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 101 & gd~ ?kks"k.kk ,oa O;kns'k ds fy, okn & jktLo vfHkys[k dh izfof"V;ksa ls lefFkZr ugha & ,slh izfof"V;k¡ xyr gksuk lkfcr djuk & izek.k Hkkj oknhx.k ij gS & og izfroknh dh fdlh detksjh dk Qk;nk ugha mBk ldrkA ¼iSjk 15½
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 57¼2½ & gd~ ?kks"k.kk rFkk O;kns'k ds fy, okn & foxr 200 o"kZ ds yacs le; ls dCtk ij vk/kkfjr & Hkwfe ^^nsoLFkku ekQh** ds :i esa vfHkfyf[kr & oknhx.k }kjk ;g izekf.kr ugha fd;k x;k fd ;s izfof"V;k¡ xyr Fkha & fupys U;k;ky;ksa ds fu"d"kZ & fd oknhx.k fujarj foxr 200 o"kZ ls 'kkafriw.kZ dCtk gS & vfHkys[k dh lk{; ds foijhr gksus ls & iw.kZr;k foi;ZLr gS & ogh fLFkj ugha j[kk tk ldrk vkSj vikLr fd;k x;kA ¼iSjk 16] 17 ,oa 28½
¼4½ ifjlhek vf/kfu;e] 1963 & /kkjk 27 rFkk vuq- 65 & izfrdwy dCtk }kjk gd~ dk vtZu & dc vuqKs; ugha & Hkwfe ^^ekQh nsoLFkku** ds :i esa vfHkfyf[kr & vlaxr vfHkopu & vFkkZr iwoZt ls vkSj izfrdwy dCtk ls gd~ dk vtZu & ,sls vlaxr vfHkopu ds vk/kkj ij & gd~ dk vtZu vuqKs; ughaA ¼iSjk 22½
¼5½ izfrdwy dCtk & gd~ dk vtZu & vko';d izdFku & dCtk dc izkIr fd;k] dc lgh Lokeh ds izfrdwy gqvk] ;g fujarj rFkk lgh Lokeh ds lkFk laiw.kZ fo'o dh tkudkjh esa fojks/kh Fkk & ,sls vko';d vfHkopu ds vHkko esa & izfrdwy dCtk ds vk/kkj ij HkwfeLokeh vf/kdkj iznku ugha fd, tk ldrs & fupys U;k;ky;ksa ds vkns'k vikLr fd, x,A ¼2004½ 10 ,l lh lh 779 rFkk ¼2004½ 1 ,l lh lh 371 vuqlfjrA 1997 jk fu 81 ¼mPpre U;k-½ rFkk 1980 ts ,y ts 879 ¼mPp U;k- & iw.kZ U;k;ihB½ fufnZ"VA ¼iSjk 18 ls 28½
(1) Civil P.C., 1908 -- S.100 -- concurrent finding of fact of Courts below -- based on evidence -- cannot be interfered -- but concurrent finding of fact about acquisition of Bhumiswami right -- contrary to evidence on record -- such findings are perverse -- interference can be made in second appeal. (2003)4 SCC 161 followed. (2005)2 SCC 500 referred to. [Paras 11, 12 & 14
(2) Evidence Act, 1872 -- S.101 -- suit for declaration of title and injunction -- not supported by entries of revenue record -- for proving such entries as wrong -- burden of proof is upon plaintiffs -- he cannot take benefit of any weakness of defendant. [Para 15
(3) Land Revenue Code, 1959 (M.P.) -- S.57(2) -- suit for declaration of title and injunction -- based on long time possession for past 200 years -- in revenue record -- land recorded as ‘Devsthan Muafi’ -- it is not proved by plaintiffs that these entries were wrong -- finding of Courts below -- that plaintiffs were in continuous and peaceful possession for past 200 years -- being against evidence on record -- is totally perverse -- same cannot be sustained and set aside. [Paras 16, 17 & 28
(4) Limitation Act, 1963 -- S.27 and Art.65 -- acquisition of title by adverse possession -- when not permissible -- land recorded as ‘Muafi Devsthan’ -- inconsistent pleading -- i.e. acquisition of title through fore-fathers and adverse possession -- on basis of such inconsistent pleading -- acquisition of title is impermissible. [Para 22
(5) Adverse Possession -- acquisition of title -- necessary averments -- when possession acquired, when became adverse to true owner, it was continuous and hostile to knowledge of entire world including true owner -- in absence of such necessary pleading -- Bhumiswami rights cannot be granted by adverse possession -- judgment of Courts below set aside. (2004)10 SCC 779 and (2004)1 SCC 371 followed. 1997 RN 81 (SC) and 1980 JLJ 879 (HC-FB) referred to. [Paras 18 to 28
1. This is a second appeal by appellant/defendant (State) under section 100 of the Code of Criminal Procedure, 1973 (for short ‘The Code’) against judgment and decree rendered by First Additional District Judge, Ujjain in regular Civil Appeal No.58-A/1997, affirming the judgment and decree dated 30.6.1997 passed by the Court of Civil Judge, Class-I, Barnagar in Civil Suit No.74-A of 1984.
2. The civil suit was filed by Dev Gir – respondent No.1 and his brother Bihari Gir (since deceased), represented through his legal representatives, for declaration of ‘Bhumiswami’ rights and permanent injunction in respect of agricultural land bearing Survey Nos.2, 3, 4, 5, 6, 7, 12, 13, 15, 17, 18, 19, 20, 22, 23, 24, 28, 29, 30, 31, 32, 33, 34 and 211(in total 24) ad-measuring 11.768 hectare situated at village Narsinga, Tahsil Barnagar, District - Ujjain (herein after referred as 'The disputed land').
3. The respondents/plaintiffs averred that they in the capacity of owner are in continuous and uninterrupted possession of 'The disputed land' for past 200 years since the time of their fore-fathers and are carrying on agricultural operations over the same and also paying the land revenue. In alternate, it was averred that being in long, continuous and uninterrupted possession for more than 200 years, the respondents/plaintiffs have acquired ‘Bhumiswami’ rights over 'The disputed land' by adverse possession. It was further averred that though the appellant/defendant (State) has no right/title or interest over 'The disputed land', which neither belonged to any ‘Devasthan’ nor is a ‘Muafi’ land, still the appellant/defendant (State) is trying to interfere with the peaceful possession of the respondents/plaintiffs over 'The disputed land' and trying to auction and lease out the same in an unauthorized manner.
4. The appellant/defendant (State) resisted the suit Denying the averments made by the respondents/plaintiffs regarding their ‘Bhumiswami’ rights and continuous and uninterrupted possession over 'The disputed land' or acquisition of title by adverse possession. It was averred that ‘'The disputed land'’ belongs to ‘Devasthan’ and that the appellant/defendant (State) is holding the same in the capacity of Manager. Raising objection with regard to non-joinder of the ‘Devasthan’ as defendant, and non-maintainability of the suit under section 57(2) of M.P. Land Revenue Code, 1959, a prayer for dismissal of the suit was made.
5. The learned trial Court, vide judgment dated 30.6.1997, though did not find it proved that the respondents/plaintiffs are ‘Bhumiswami’ of 'The disputed land', however, it was found proved that they since the time of their fore-fathers, are in continuous and uninterrupted possession of 'The disputed land' and, therefore, have acquired title by way of adverse possession. Accordingly, a decree for declaration and injunction was passed in their favour.
6. The judgment passed by the learned trial Court was unsuccessfully challenged by the appellant/defendant (State) in first appeal, however, the appellate Court, vide the impugned judgment concurred with the findings arrived at by the learned trial Court as regards acquisition of title by adverse possession on account of long and uninterrupted possession. Feeling aggrieved, the appellant/defendant (State) preferred this appeal, which was admitted by this Court on 3.5.1999 on the following substantial questions of law:
“(1) Whether the judgment and decree passed by the Court below is inconsistent with the evidence on record ?
(2) Whether the judgment and decree passed by the Court below is against the provisions of law and, therefore, has become illegal and perverse ?”
7. It is contended by learned counsel for the appellant that issue No.1 with regard to title of the respondent/plaintiffs was not found proved by learned trial Court in their favour because 'The disputed land' as per various documents adduced in evidence by them was found recorded as ‘Muafi Bhumi’. It
