1995 Supreme(MP) 1117

IN THE HIGH COURT OF MADHYA PRADESH
R.D. Shukla, J.
Balu Singh - Appellant
Versus
Ranjeet - Respondent
S.A. No. 493 of 1978 (I)
Decided On : 28-09-1995

Headnote:(1) Civil Procedure Code, 1908 – – S. 100 – – important piece of evidence overlooked – – interference made.

       (2) Civil Procedure Code, 1908 – – O. 26 R. 9 – – question whether a well situates in the land of plaintiff or of defendant – – should be got decided by appointing Commissioner.

        Short Note

       1. The appeal is directed against the judgment and decree dated 4.9.78 of the IVth Addl. District Judge, Ujjain passed in Civil Appeal No. 26 – A/77 whereby while affirming the decree dated 21.10.74 of Civil Judge Class II, Khachrod passed in Civil Suit No. 225 – A/76, the defendant's appeal has been dismissed.

       2. The brief history of the case is that plaintiff – respondent filed a suit in the Court of Civil Judge Class II, Khachrod with the assertions that he is owner of land bearing Khasra No. 679 of village Lasudia – Khema and the defendant is the owner of land bearing Khasra No. 680. There is one open hind lying in between the two Khasras. The defendant has illegally constructed a well by trespassing over the land of plaintiff i.e. Khasra No. 679. The plaintiff objected to it but defendant refused to stop the work and, therefore, the plaintiff filed an application for demarcation. The same was done under the orders of Tehsildar. The demarcation Report discloses that the well situates in Khasra No. 679 and therefore the plaintiff sought a decree of declaration possession and injunction.

       3. Defendant denied the contention of the plaintiff and further submitted that he has constructed a well in the land of his ownership i.e. Khasra No. 680 and that he (defendant) has been in possession of this land for more than 12 years and, therefore he has acquired title by way of adverse possession.

       4. Learned trial Court of Civil Judge Class II, decreed the suit and further directed payment of compensation of Rs. 1,000/ – for the construction of well. The appeal filed against this by the defendant was dismissed. Hence, this second appeal.

       5. This Second Appeal was admitted on the following substantial questions of law: – –

       (i) Whether the judgment of the lower appellate Court is vitiated on account of misreading of evidence?

       (ii) Whether from the evidence on record applicant's adverse possession on the suit land is proved?

       (iii) Whether the finding of the Court below as regards limitation is perverse ?

       6. It would be proper to examine the third question first as to whether the finding of the two Courts below is perverse or based on rejection of some material evidence.

       7. The plaintiff has filed Ex. P/1, P/2 and P/3, the reports of demarcation. The defendant has also filed certain document disputing the demarcation.

       8. P.W. 1 Udesingh Patwari, P.W. 2 Dhannalal and P.W. 6 Aggarali have stated that the demarcation of the land was done under the orders of Tehsildar and on demarcation they found that the well situates in Khasra No. 679 owned by the plaintiff.

       9. The defendant has not examined any witness in rebuttal of the demarcation done by the Revenue Officers under the orders of Tehsildar.

       10. P.W. 3 Ranjeet (Plaintiff) has stated that the land lying fallow within Khasra No. 679 & 680 was in his possession and that he purchased this land by one Ambaram. The land earlier belonging to Ambaram has been admitted by defendant also. Ambaram who is appearing as P.W. 4 has stated that the fallow land lying between the two fields belonged to him and now belongs to the plaintiff as the possession stands transferred to plaintiff Ranjeet. But P.W. 5 has stated that defendant Balusingh has constructed a well in his own field. He has not been declared hostile. The plaintiff is bound by this statement. It appears that this statement has not been considered by the two Courts below.

       11. P.W. 1 Udesingh Patwari also could not say with all certainty [in para 2 of his statement] as to whether the well is situated within Khasra No. 679. Defendant's witnesses on the other hand have stated that the well has been constructed on the land of defendant. Document Ex. B/1 shows as if only the part of well falls in Khasra No. 679. Thus, from the evidence of the parties it is evident that there is a dispute of boundary. Both the parties claim the area to be of their own. In such cases it was necessary for the Court to have appointed a Commissioner for taking the measurement and the parties could have been given an opportunity of raising objection to the Commissioner.

       12. Learned counsel for appellant has submitted that the defendant – appellant is ready to bear the expenses of the Commissioner.

       13. Though the finding of two Courts below cannot be said to be perverse but one important piece of evidence has been over – looked which is as follows:

       14. P.W. 1 Udesingh Patwari was not sure as to actual position of the well i.e. whether it falls under Khasra No. 679 or Khasra No. 680. P.W. 5 himself has admitted that the well situates in the land of defendant Balusingh.

       15. Ex. P/2 Panchanama shows that the whole of the well situates within Khasra No. 679 while document Ex. D/1 shows that its only 15 Kadi and 5 Kadi in middle falling in the well comes within Khasra No. 679. Thus, it is clear that dispute about boundary has not been' considered by the two Courts below. In such a situation the finding of the two Courts below deserves to be reversed. It may not be perverse. But the very material piece of the evidence has not been considered by the two Courts below.

       16. Non – consideration of material piece of evidence itself raises a substantial question of law.

       17. So far as the point of adverse possession is concerned, it can be observed that in order to acquire a title on the basis of possession the person claiming adverse possession is required to prove possession of more than 12 years against the interest of the owner and to the knowledge of the owner. Mere possession, however, long will not amount to adverse possession and mere possession, however, long it may be cannot confer a title unless the same is brought within the definition of adverse possession. In such cases where boundary dispute exists there cannot be acquisition of title by adverse possession as the possession of a person may not be to the knowledge of other person and, therefore, in such a situation there cannot be acquisition of title by adverse possession.

       18. In view of discussion above, the case deserves to be remanded for appointment of a Commissioner who shall undertake measurement and demarcate Khasra No. 679 and 680 of village Lasudiya Khema and further give an opinion as to whether and on what Khasra No. the disputed well exists.

       19. As a result, appeal succeeds. The judgment and decree of the two Courts below are set – aside. The file is remanded back to the Court of C.J. Class II, Khachrod with a direction that the learned Judge shall appoint a Commissioner at the cost of defendant as offered, who shall take measurement and demarcate and further give opinion as to whether and in what Khasra No. the disputed well exists. The parties shall be given an opportunity of filing an objection and prove rebuttal of it.

       20. The parties are directed to appear before the C.J. Class II, Khachrod on 2.11.95. No further notice would be necessary. The defendant shall deposit the cost of Commissioner as directed by the C.J. Class II, Khachrod within 3 days thereafter.