J U D G M E N T

( 10/04/2019 )

This first appeal is preferred under Section 96 of the Code of Civil Procedure 1908 , against the judgment and decree dated 30.7.2005 passed in Civil Suit No. 14A/1991 by Eighth Additional District Judge, Gwalior, whereby the suit of the plaintiffs/appellants was dismissed.

2. The facts in short are that the plaintiff Niranjan Singh and Janak Singh had filed a suit for declaration and permanent injunction against the defendants/respondents regarding suit land bearing survey No. 4076 area 23 bighas 8 biswas, situated at village Hurawali, Tahsil and District Gwalior. During pendency of the suit Niranjan Singh died and his legal heir, his wife Smt. Marjiya and son Brijmohan and daughter-in-law Smt. Santosh were brought on record, who are the present appellants. The plaintiffs alleged that their father Gappu Singh was in possession of the suit land before Samvat 2002 and the plaintiffs along with their father were cultivating the suit land as Bhumiswami and still cultivating it. Formerly it was Kadim land and father of the plaintiffs made the land cultivable and by spending Rs.5000/- constructed three pukka Chabutaras. After the death of father of plaintiffs, the land was cultivated as Bhumiswami and still the plaintiffs are in possession and cultivating the suit land. The Municipal Corporation was never in possession and the plaintiffs are continuously without any interruption and within the knowledge of the defendants cultivating the land since Samvat 2002 and have acquired the rights by virtue of adverse possession. During pendency of the suit, in February 2004 the defendants No.1 and 2 illegally and forcibly, in spite of the objection of the plaintiffs, allowed the MP Electricity Board to establish sub- station on 100x100 ft. land, out of the said land, hence challenging that act the plaintiffs claimed possession over the piece of land and mesne profit @ Rs.1000/- per month. It is also alleged that the defendants illegally want to allot the land to Adim Jati Kalyan Vibhag and in spite of the objection being filed by the plaintiffs, the defendants are taking action for transfer of the land to said department by passing the order dated 30.6.2004, which was also challenged by the plaintiff. On 6.7.2004 Joint Collector and Nazul Tahsildar came on the suit land and illegally fixed wire fencing and iron angles causing damage to the plaintiffs amounting Rs. 10,000/-. It is also alleged that the defendant No.1 has initiated proceeding under Section 168(4) of MP Land Revenue Code (for brevity, the 'Code') against the father of the plaintiffs Gappu Singh alleging that the suit land was given by the Municipal Corporation on lease to Gappu Singh and after the death of Gappu Singh, Janak Singh and Niranjan Singh, without renewal of lease, are cultivating the suit land, hence proceedings were instituted under Section 168 (4) of the Code, which were dismissed on 19.4.1988.

In these circumstances, without taking any action, for taking possession under Section 250 of the Code, the plaintiffs acquired the right of occupancy tenant under Section 169 of the Code. On the basis of above facts the suit was filed by the plaintiffs.

3. The defendants denied the pleadings of the plaint and defendant No.1 pleaded that the suit land belongs to defendant No.1 and the plaintiffs never cultivated the suit land and unauthorisedly constructed one room on it. It was also denied that any notice under Section 401 of the Municipal Corporation Act and under Section 80 of CPC was served on the defendants. One Civil Suit No. 48A/1968 was filed against Gajendra Prakash for the cancellation of sale deed, wherein Municipal Cor