1987 Supreme(MP) 609

IN THE HIGH COURT OF MADHYA PRADESH
K. K. Varma, J.
Solya - Appellant
Vs.
Nemichand - Respondent
S. A. No. 181 of 1977 (G)
Decided On : 04-12-1987

Headnote:(1) Civil Procedure Code, 1908 – S.100 – findings of fact not perverse – cannot be interfered with in second appeal.

       (2) Specific Relief Act, 1963 – S.38 – plaintiff trespasser on date of suit – no decree of perpetual injunction can be granted.

        Short Note

       1. This is a plaintiff's appeal from the affirming decree dated 30 – 4 – 1977 of the Additional District Judge, Sheopur – Kalan in Civil Appeal No. 69 – A/1977, arising out of the decree dated 29 – 8 – 1974, passed by the Additional Civil Judge (Class – H), Sheopurkalan dismissing the plaintiff's suit.

       2. Held: There was evidence on which the Courts below could reach the findings they did. viz., that it was not appellant Solya but Nathibai who was the bhumiswami of the lands and that his possession over the suit lands commenced in Samvat 2006 as a bataidar, and thereafter as a trespasser. These are questions of fact on which the finding of the first appellate Court is final unless it can be shown that it is perverse. [See (1) Durga Chowohrain v. Jawahil Singh Chowohary 17 I.A. 122 (P.C.). (2) Ramchandra v. Ramlingam, AIR 1963 SC 302 (Para. 11). (3) Raruha Singh v. Achal Singh: AIR 1961 S.C. 1097 (Para. 8)].

       3. I am of the view that the findings recorded by the trial Court and affirmed by the first appellate Court cannot be regarded as perverse by any stretch of imagination. The findings are, therefore, binding in second appeal.

       4. The result is : the appellant gets no declaration of title to the suit lands because Smt. Nathibai was the bhumiswami thereof on the date of the suit.

       5. The appellant's learned counsel urged that the appellant was entitled to a permanent injunction to protect his possession from the defendants. Now. Solya's possession commenced in Samvat 2006 as Smt. Nathi's bataidar and it became, that of a trespasser in Samvat 2007, and was so at the date of the suit.

       6. The appellant's learned counsel has relied on' Bagdiram v Negoo, 1978 (11) MPWN Note 169. The facts were as follows: The plaintiff – respondent claimed that he was the owner and in possession of the suit lands and that the defendants were disturbing his possession. The defendants' claimed title to the suit lands under a registered sale – deed executed m their favour by the plaintiff's mother. The Court held that the plaintiff was in settled possession of the land. It was conceded before the Court that not even a true owner has a right to dispossess by force if the trespasser is in settled possession of the land.

       7. The ruling is clearly distinguishable on facts. First, appellant Solya had also claimed a declaration that he was the owner of the land in bhumiswami right, while in the reported ruling the plaintiff's suit was for a permanent injunction only. Second, appellant Solya's possession commenced as a bataidar of the real owner Nathibai in Samvat 2006, and it became that of a trespasser in Samvat 2007 in which the suit was filed, Hence, the appellant's possession cannot be regarded as settled possession.

       8. It was held in Nair Service Society Ltd. v. K. C. Alexander: AIR 1968 SC 1165 (paras 17 and 20) and in Somnath Berman v. S. P. Raju : AIR 1970 SC 846 (paras 9 and 10) that possessory title is no good as against the real owner. 17 IA 122 (PC), AIR 1963 SC 302 and AIR 1961 SC 1097 followed. 1978 (II) MPWN 169 distinguished. Appeal dismissed.