The plaintiff must prove her title and possession over the disputed property, and the failure to do so can lead to the dismissal of the suit.

JUDGMENT :

1. With consent, heard finally.

The instant first appeal under section 96 of Code of Civil Procedure has been preferred at the instance of appellant (hereinafter referred as “plaintiff”) being crestfallen by the judgment and decree dated 25-11-2002 passed by VI Additional District Judge, (Fast Track Court), Gwalior, whereby suit preferred by the appellant/plaintiff has been dismissed.

2. Precisely stated facts of the case are that appellant/plaintiff filed a suit against the respondents (hereinafter referred as “defendants”) for declaration of title, possession and permanent injunction in respect of suit property situate at Municipal Corporation bearing Nos. 32/752, 32/752/1 and 35/752/2. As per the pleadings, plaintiff purchased the first plot vide registered sale deed dated 3-10-1981 from Smt. Anuradha Pathak and Smt. Minakshi Sharma, second plot vide registered sale deed dated 12-4-1982 from Smt. Minakshi Sharma and third plot vide registered sale deed dated 12-11-1987 from Brij Kishore. At the time of purchase, they were the owners of the disputed suit property and their names were mentioned in Municipal Corporation, Gwalior as owners. It is further submitted that foundation had been laid over the property in question and one room had been constructed.

3. It is further pleaded the on 24-4-1989, employees of defendant No. 1 (State of M. P. through Collector) with the help of defendants No. 2 and 3 (Commissioner Municipal Corporation and Administrator Municipal Corporation, Gwalior) had tried to remove the construction and interfere in the peaceful possession. Some goods lying over the plot were also taken forcibly.

4. Through the amendment in the plaint, it was added by the plaintiff that defendants No. 2 and 3 (Commissioner and Administrator, Municipal Corporation, Gwalior) gave permission for construction vide permission letters dated 8-8-1989, 12-10-1990 and 20-1-1995, which demonstrate that property is under the domain of Municipal Corporation. Nazul Department had no relation what so ever with the property. Therefore, Nazul Department does not have any right to interfere in the suit property. With these pleadings, suit for declaration, title, possession and permanent injunction was preferred.

5. Defendant No. 1 filed the written statement and denied the claims of the plaintiff. It was the submission of the State Government that disputed property is not of ownership and possession of plaintiff, but is of State Government and plaintiff, in fact, has encroached upon the land which has been removed before 2-5-1989 and no possession of plaintiff exists over the suit property. It is further submitted that if plaintiff has taken permission for construction from Municipal Corporation, Gwalior in respect of the suit property, then it does not give any benefit to the plaintiff regarding her title. Since the plaintiff has indirectly accepted her encroachment, therefore, encroacher cannot be given any relief in the way she sought. The objection in respect of non-compliance of section 80 of Criminal Procedure Code was also raised.

6. Defendants No. 2 and 3 (Commissioner and Administrator, Municipal Corporation, Gwalior) also denied the allegations and raised the objection regarding non receipt of any notice prior to filing of suit.

7. Trial Court framed as many as 11 issues for adjudication on which the evidence had to be led by the parties. Issues No. 6 and 7 were regarding title of the plaintiff and plaintiff had to prove the said issues before establishing her claim over the suit property.

8. After evidence of the parties being led and arguments being advanced, trial Court came to the conclusion that plaintiff could not prove her case as well her title over the suit property and therefore, dismissed the suit with cost. Against the dismissal of suit, plaintiff as appellant preferred the instant civil regular appeal before this Court.

9. Learned Senior Counsel appearing on behalf of the appellant/plaintiff submits that plaintiff