Mahavir Singh And Another vs Domar Singh And Others
2022 Latest Caselaw 7618 Chatt

                                              1

                                                                                  NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                                    SA No. 326 of 2008

        1. Mahavir Singh, S/o Chitgovind Kshatriya, Aged About 56 years,

        2. Dharamraj Singh, S/o Chitgovind Kshatriya, aged about 33 years,

           Both are R/o Village Kotiya, Tahsil Belha, District Bilaspur (C.G.)l

                                                                ---- Appellants/plaintiffs

                                           Versus

        1. Domar Singh, S/o Dalpat Singh, aged about 57 years, R/o Village Mohtara,
           Tahsil Belha, District Bilaspur (C.G.)

        2. Mahendra Kumar, S/o Awadh Ram Patel, aged about 28 years, R/o Village
           Khamhardih, Tahsil Belha, District Bilaspur (C.G.)

        3. State of Chhattisgarh, Through the Collector, Bilaspur, District Bilaspur
           (C.G.)

                                                  ---- Respondents/defendants

For Appellants :Shri Ashok Kumar Shukla appears along with Ms. Rashi Jain, Advocate For Respondents 1 & 2 :Shri Vinod Kumar Sharma, Advocate. For Respondent 3/State :Shri Ravipal Maheshwari, P.L.

Hon'ble Shri Justice Sanjay S. Agrawal

Judgment/Order On Board 16.12.2022

1. This appeal has been preferred by the plaintiffs under Section 100 of the

Code of Civil Procedure, 1908, questioning the legality and propriety of the

judgment and decree dated 18.08.2008 passed by the 8 th Additional District

Judge, Fast Track Court, Bilaspur (C.G.) in Civil Appeal No. 14-A/2008, whereby,

the lower appellate Court, while reversing the judgment and decree dated

15.11.2007 passed by the 2nd Civil Judge, Class-1, Bilaspur in Civil Suit No. 103-

A/2007, has dismissed the plaintiffs' claim. Parties to this appeal shall be referred

hereinafter as per their descriptions before the trial Court.

2. Briefly stated the facts of the case are that the plaintiffs instituted a suit

claiming declaration of title, injunction and also for seeking relief to the effect that

the registered deed of sale dated 13.04.2006 executed by defendant No.1 -

Domar Singh in favour of defendant No.2 - Mahendra Kumar be declared as null

and void. According to the plaintiffs, they are in possession over the property in

question bearing Kh.No. 555 admeasuring 3.10 acres situated village

Khamhardih, Tahsil Belha, District Bilaspur for over more than 50 years and have

prescribed their right, title and interest by way of adverse possession. It is

pleaded further that defendant No.1, without any authority, has moved an

application for correction of the record with regard to the suit land before the

Tahsildar, Belha, who in turn, vide order dated 30.03.2006, has directed for

correction of the record and, thereafter the said defendant sold the property in

question to defendant No.2 under the said registered deed of sale, therefore, the

plaintiffs have been constrained to institute the suit in the instant nature, instituted

on 26.06.2006.

3. While denying the aforesaid plea of adverse possession, the defendants

No.1 & 2 have contested the claim by submitting, inter alia, that the property in

question was owned by his (defendant No.1 - Domar Singh) grandfather, namely,

Ajab Singh and after his death, it was inherited by his father, namely, Dalmat

Singh and, upon his death, he inherited the same and is in possession thereof.

It is pleaded further that in the entire claim, it has not been stated by the plaintiffs

that who is the owner of the property in question and how they came in

possession over it, therefore, the claim as made by the plaintiffs seeking

declaration of ownership on the basis of adverse possession deserves to be

dismissed.

4. After considering the evidence led by the parties, the trial Court, vide

judgment and decree dated 15.11.2007, arrived at a conclusion that since the

plaintiffs are in possession over the property in question, therefore, they are the

owner of the same and, accordingly, the registered deed of sale, executed by

defendant No.1 - Domar Singh in favour of defendant No.2 - Mahendra Kumar

on 13.04.2006 has been declared to be null and void. The plaintiffs' claim has,

thus, been decreed.

5. In appeal preferred by defendants No. 1 & 2, the aforesaid finding of the

trial Court has been reversed by the lower appellate Court vide its impugned

judgment and decree dated 18.08.2008 while placing reliance upon the 'Adhikar

Abhilekh Panji' (Ex.D.1) showing the name of grandfather of Domar Singh,

namely, Ajab Singh, based upon the 'Jamabandi' for the year 1954-55 and, held

that defendant No.1 has inherited the property in question upon the sad demise of

his predecessor-in-interest and, has rightly sold the same to defendant No.2 -

Mahendra Kumar under the registered deed of sale, dated 13.04.2006 (Ex.D.3).

It held further that although the plaintiffs have claimed their interest over the

property in question by way of adverse possession, but in the evidence, it was

stated by him (Dharmaraj Singh) that the suit property was held by his grandfather

and while taking note of the same, it was observed that the plea as made by the

plaintiffs while setting up their interest by way of adverse possession is contrary

to their averments, and therefore, it cannot be said that they have prescribed their

interest over the property in question as such. Accordingly, the judgment and

decree as passed by the trial Court has been reversed while dismissing the

plaintiffs' claim, which has been impugned by way of preferring this appeal by the

plaintiffs.

6. Learned counsel appearing for the appellants / plaintiffs submits that the

finding of the lower appellate Court while reversing the judgment and decree of

the trial Court by holding that the plaintiffs have failed to prescribe their right, title

and interest over the property in question by way of adverse possession is

apparently contrary to law and, the judgment and decree under appeal is,

therefore, liable to be set aside.

7. I have heard learned counsel appearing for the appellants/plaintiffs and

perused the entire record carefully.

8. From perusal of the averments made in the plaint, it appears that the entire

claim of the plaintiffs is based upon the adverse possession with regard to the

property in question bearing Kh.No. 555 admeasuring 3.10 acres situated at

village Khamhardih, Tahsil Belha, District Bilaspur. In order to establish the said

fact, the burden was heavily upon the plaintiffs to prove that they are in

possession over the same within the knowledge of its true owner while disowning

their interest. Thus, a specific plea of ouster was to be taken by the plaintiffs that

on which date, they came in possession over the suit land by disowning the

interest of its true owner. However, from perusal of the averments made in the

plaint, I do not find any specific plea to this effect. Pertinently to be noted here

that although the plaintiffs are trying to set up his interest by way of adverse

possession, but in evidence as reflected from the statement of P.W.1 (Dharmraj

Singh), a contrary statement has been made by saying that it was owned by his

forefathers. In view thereof, it cannot be said that they acquired their interest over

the property in question by way of adverse possession. Besides, a bare perusal

of the 'Adhikar Abhilekh Panji', marked as Ex.D.1, would reveal the fact that the

name of grandfather of defendant No.1, namely, Ajab Singh, son of Shivdatt was

recorded based upon 'Jamabandi' for the year 1954-55. It thus appears that after

the death of said Ajab Singh, it was inherited by the father of defendant No.1 -

Domar Singh and, thereafter he (Domar Singh) inherited the same and, after

correcting the revenue papers vide order dated 30.03.2006 passed in Revenue

Case No.12-A/6-A/2005-06, it was sold by him to defendant No.2 - Mahendra

Kumar under a registered deed of sale, dated 13.04.2006 (Ex.D.3).

9. In view of the aforesaid factual background, the lower appellate Court, after

due consideration of the evidence led by the parties, has not committed any

illegality in reversing the finding of the trial Court while dismissing the plaintiffs'

claim based upon the adverse possession.

10. Consequently, I do not find any question of law, much less, the substantial

questions of law, which arise for determination in this appeal. The appeal, being

devoid of merit is, thus, liable to be and is hereby dismissed.

No order as to costs.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani

HIGH COURT OF CHHATTISGARH, BILASPUR

Order Sheet, SA No. 326 of 2008 Mahavir Singh & Anr. Versus Domar Singh & Ors.

16.12.2022 Shri Ashok Kumar Shukla appears along with Ms. Rashi

Jain, counsel for the appellants.

Shri Vinod Kumar Sharma, counsel for respondents No. 1 &

2.

Shri Ravipal Maheshwari, P.L. for the State/respondent No.3.

Heard on admission.

Judgment/Order dictated in open Court. Signed and dated

separately.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani