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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Bhogiram & Others v. Sher Singh & Others
Second Appeal No. 466 of 2011 (Gwalior); against the judgment and decree dated 9.8.2011 passed by the First Additional District Judge, Guna in Civil Appeal No. 26A/2010; Decided on 22.8.2019.
¼1½ flfoy izfØ;k lafgrk] 1908 && èkkjk 11 rFkk 100 && iwoZ U;k; ds iz'u ij fopkj.k U;k;ky; dk fu"d"kZ && izR;FkhZx.k }kjk izFke vihy eas vk{ksfir ugha && ,slk iz'u f}rh; vihy esa ugha mBk;k tk ldrk && izR;FkhZx.k ,slk iz'u mBkus ls focaf?krA ¼iSjk 14
¼2½ lk{; vfèkfu;e] 1872 && èkkjk 115 && iwoZ U;k; dk fl)kar && ykxw gksuk && iwoZ U;k; ds iz'u ij fopkj.k U;k;ky; dk fu"d"kZ && izR;FkhZx.k }kjk izFke vihy esa vk{ksfir ugha && og f}rh; vihy eas ,slk iz'u mBkus ls fccafèkr gSaA
vfHkfuèkkZfjr % tc vihy U;k;ky; ds le{k] izR;FkhZx.k us iwoZ U;k; ds iz'u ij fopkj.k U;k;ky; ds fu"d"kks± dks vk{ksfir ugha djus dk fofu'p; fd;k Fkk rks vc og bl U;k;ky; ds le{k izFke ckj iwoZ U;k; dk iz'u mBkus ls focafèkr gSaA ¼iSjk 14
¼3½ flfoy izfØ;k lafgrk] 1908 && èkkjk 96 && izFke vihy U;k;ky; dk dÙkZO; && rF; ds iz'u ij vafre U;k;ky; gksus ls && rF;ksa ds iz'u ij foLr`r fopkj djuk pkfg, vkSj foLr`r fu.kZ; ikfjr djuk pkfg,A ¼iSjk 15
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && èkkjk 189 rFkk 190 && HkwfeLOkkeh vfèkdkjksa dk izksnHkwr gksuk && ekS#lh d`"kd }kjk èkkfjr Hkwfe && lafgrk ds izo`Ùk gksus ds fnukad ls ,d o"kZ ds Hkhrj iquZx`ghr ugha && ekS#lh d`"kd dks HkwfeLokeh vfèkdkj izksn~Hkwr gks x,A ¼iSjk 22
¼5½ flfoy izfØ;k lafgrk] 1908 && èkkjk 96 && lesfdr vihy && pykus ;ksX; gksuk && izfroknhx.k dk izfr nkok [kkfjt rFkk oknhx.k dk okn fMØh fd;k x;k && izfrnkos dh [kkfjth ds fo#) i`Fkd vihy ugha dh xbZ && mUgha rF;ksa ij lesfdr vihy izLrqr dh xbZ && izkFkZuk [kaM esa gd dh ?kks"k.kk pkgh xbZ && lesfdr vihy pykus ;ksX; && vihy pykus ;ksX; ugha gksus fo"k;d fuosnu [kkfjt fd;k x;kA ¼2015½ 2 ,l lh lh 682 fufnZ"VA ¼iSjk 26
¼6½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && èkkjk 185] 158 rFkk 190 && e-Hkk- Hkw&vkxe rFkk d`"kdkfèkdkj foèkku] 1950 && èkkjk 54 ¼lkr e-Hkk- tehankjh lekfIr foèkku] 1951 && èkkjk 38 && ekSlwlh d`"kd vFkok Øsrk && gd fdls izksn~Hkwr gksxk && lafgrk ds izo`Ùk gksus ds iwoZ && ewy HkwfeLokeh }kjk Hkwfe iV~Vs ij iznku dh xbZ && lafgrk ds izo`Ùk gksus ij iV~Vsnkj dks ekS#lh d`"kd ,oa HkwfeLokeh vfèkdkj izksn~Hkwr gks x, && ewy HkwfeLokeh }kjk 28-7-2008 dks mlh Hkwfe dk foØ; foys[k fu"ikfnr && ,sls foØ; foys[k ds vkèkkj ij Øsrkvksa dks dksbZ gd izksn~Hkwr ugha gqvk D;ksafd muds foØsrk dks dksbZ gd ugha FkkA
vfHkfuèkkZfjr % bl U;k;ky; dh lqfopkfjr jk; gS fd fupys U;k;ky; fofèk ds micaèkksa ds lkFk&lkFk bl rF; ij fopkj djus esa vlQy jgs fd iV~Vk foys[k izn'kZ Mh@7 ds izHkko ls vihykFkhZx.k@ izfroknhx.k ;k muds gd iwokZfèkdkjh o"kZ 1961 esa fookfnr Hkwfe ds dCtkèkkjh Fks blfy, mUgsa HkwfeLokeh vfèkdkj vftZr gks x, FksA ¼iSjk 28
D;ksafd o"kZ 1961 eas vihykFkhZx.k@izfroknhx.k ;k muds gkFk iwokZfèkdkfj;ksa dks HkwfeLokeh vfèkdkj vftZr gks x, Fks blfy, foØ; foys[k fnukad 28-7-2008 ds izHkko ls izR;FkhZx.k dksbZ vfèkdkj ;k gd izkIr ugha dj ldsaxsa D;ksafd muds foØsrk dk muesa dksbZ vfèkdkj ;k gd ugha FkkA ,rn~ }kjk ;g ?kksf"kr fd;k tkrk gS fd vihykFkhZx.k@izfroknhx.k fodflr Hkwfe ds LOkkeh ,oa dCtkèkkjh gSa] tks Øe'k% muds dCtk eas gSA 2010 jk-fu- 176 mPp U;k-] 2002 jk-fu-68 ¼mPp U;k-½ ¼2016½ 3 ,l lh lh 78 rFkk 2000 ¼3½ ,e ih ,p Vh 18 fufnZ"VA¼iSjk 29
(1) Civil P.C., 1908 -- Ss. 11 and 100 -- finding of trial Court on question of res-judicator -- not challenged in first appeal by respondents -- such question cannot be raised in second appeal -- respondents estopped from raising such question. [Paras 14
(2) Evidence Act, 1872 -- S.115 -- principle of res-judicator -- applicability -- finding of trial Court on question of res-judicator -- not challenged by respondents in first appeal -- they are estopped from raising such question in second appeal.
Held : when before the Appellate Court, the respondents had decided not to challenge the findings of the trial Court on the question of res-judicata, then, now they are estopped from raising the question of res-judicata for the first time, before this Court in the second appeal. [Paras 14
(3) Civil P.C., 1908 -- S.96 -- duty of first appellate Court -- being final Court on question of fact -- should consider question of facts in detail and should pass detailed judgment. [Paras 15
(4) Land Revenue Code, 1959 (M.P.) -- Ss. 189 and 190 -- accrual of rights of Bhumiswami -- land held by occupancy tenant -- not resumed within one year from date of commencement of Code -- rights of Bhumiswami accrued to occupancy tenant. [Paras 22
(5) Civil P.C., 1908 -- S.96 -- combined appeal -- maintainability -- counter claim of defendants rejected and suit of plaintiffs decreed -- no separate appeal filed against dismissal of counter- claim -- combined appeal filed on sme facts -- in prayer clause, declaration of till sought -- combined appeal maintainable -- submission about non maintainability of appeal rejected. (2015) 2 SCC 682 referred to. [Paras 26
(6) Land Revenue Code, 1959 (M.P.) -- Ss. 185, 158 and 190 -- M.B. Land Revenue and Tenancy Act, 1950 -- S.54 (vii) -- M.B. Zamindari abolition Act, 1951 -- S.38 -- occupancy tenant or purchaser -- to when title wil accrued prior to enforcement of Code -- land granted on lease by original Bhumiswami -- rights of occupancy tenant and Bhumiswami accrued to lessee on enforcement of code -- on 28.7.2008 sale deed same land executed by original Bhumiswami -- on basis of such sale deed, no title accrued to purchasers as their seller had no title.
Held : This Court is of the considered opinion, that the Courts below have failed to consider the provisions of law as well as the fact that since by virtue of lease deed, Ex.D/7, the appellants/defendants or their predecessor(s) in title were in possession of the land in dispute in the year 1961, therefore, they had acquired the Bhumiwami rights. [Paras 28
Since, the appellants/defendants or their predecessor(s) in title had acquired the rights of a Bhumiswami in the year 1961, therefore, the respondents would not get any right or title by virtue of sale deed dated 28-7-2008 Ex. P/4, as their sellers had no right or title in them. It is hereby declared that the appellants/defendants are the owners and in possession of the land in dispute which is in their possession respectively. 2010 RN 176 (HC), 2002 RN 68 (HC), (2016) 3 SCC 78 and 2000 (3) MPHT 18 referred to.
ORDER
1. This second appeal under section 100 of CPC has been filed against the judgment and decree dated 9.8.2011 passed by 1 st Additional District Judge, Guna in Civil Appeal No. 26A/2010, thereby affirming the judgment and decree dated 31.8.2010 passed by 1 st Civil Judge Class 1, Guna in Civil Suit No. 26A/2008.
2. The necessary facts for the disposal of the present appeal in short are that the plaintiffs/respondents No. 1 to 4 had filed a civil suit for declaration of title and permanent injunction on the ground that the plaintiffs No.1 and 2 are real brothers, whereas plaintiff No. 3 is their sister and Rambaran Singh is also their brother (Initially, Rambaran Singh had not filed the suit, but it appears that later on by order dated 13.3.2009, passed by the Trial Court, Rambaran Singh was impleaded as plaintiff). The plaintiff No.2 and 4 were working in Military whereas the husband of plaintiff No.3 was also in Military. It was pleaded that the plaintiff No.1 was looking after the lands of plaintiffs No. 2 to 4 and all the defendants are trying to take forcible possession of the lands.
3. It was pleaded that the plaintiffs are the owner and in possession of agricultural land bearing Survey No. 846/1 area 21.109 hectares situated in village Karod, Tahsil Guna, Distt. Guna. The plaintiffs have sown Soybean crop with the help of original owner. It was pleaded that the plaintiffs have purchased the said land by registered sale deed dated 28.7.2008 from its original owners Deenbandhu, Vijaybandhu, Alok Bandhu, Savita, Pratibha, Malti Devi, Vandana, Archana, Parmeshwaridayal, Ramesh, Laxmikant, Sarveshwari, Usha, Mithlesh, Umesh, Dinesh, and Urmila bai and the possession of the land in dispute was also handed over to the plaintiffs. The legal representatives of Govindrai etc., had filed filed a civil suit against Kunjbihari in the Court of 2nd Civil Judge Class 1, Guna for declaration of title and possession which was registered as C.S. No. 82A/1993, and the said suit was dismissed by judgment and decree dated 20.4.1999, by holding that Kunjbihari and others are the owners. An appeal was filed, which too was dismissed by Judgment and Decree dated 10.9.1995. Thereafter, Bhagwan Singh etc had filed an application before the Court of Naib Tahsildar for declaring them as a Bhumiswami and for recording their possession which was registered as 13A-74/84-85. The moment, Kunjbihari came to know about the order dated 19.8.1995, they immediately filed an appeal before the Court of S.D.O., Guna which was registered as 44/Appeal/87-88 and the order of Naib Tahsildar was set aside. It was further pleaded that the plaintiffs are in possession of the land in dispute, from the date of the sale deed executed by Deenbandhu and others. The plaint was amended and it was further pleaded that the family dispute between legal representatives of Govindrai, namely Krishnagopal Shrivastava and legal representative of Shri Niwasrai namely Kunj Biharilal and Brijbhushan has been settled and in the Civil Suit, it was held that the property in dispute is a joint property and it has held that the plaintiffs and defendants No. 1 and 2 (in earlier suit) are in joint possession, and it was held that the defendants No.1 to 17 were neither found in possession nor they were found to be the owners and the said findings has attained finality. Accordingly, the sellers after resolving their dispute have executed the sale deed in favor of the plaintiffs. It was further pleaded that the defendants No.1 to 17 cannot challenge the title of the appellants. Proceedings have been initiated for mutation of the name of the plaintiffs, and the plaintiff No.1 is cultivating the lands on behalf of all the plaintiffs. On 26.8.2008, the plaintiff No.1 was looking after his field, the defendants No. 1 to 17 came to the field and alleged that since, they had sown the soyabean c
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