Shesh Mohammad (Erroneously ... vs Rayuf Mohammad
2022 Latest Caselaw 9101 MP

                                                     1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 8th OF JULY, 2022

                                         SECOND APPEAL No. 890 of 2021

                             Between:-
                             SHESH     MOHAMMAD       (ERRONEOUSLY
                             MENTIONED)    ACTUAL   NAME     SHEIKH
                             MOHAMMAD      S/O   SHRI    NAZIRUDDIN
                             MUSALMAN , AGED ABOUT 64 YEARS,
                             OCCUPATION: AGRICULTURIST R/O VILLAGE
                             GANIYARI, TEHSIL AND DISTT. (MADHYA
                             PRADESH)

                                                                         .....APPELLANT
                             (BY SHRI MOHAMMAD ADIL USMANI, ADVOCATE )

                             AND

                        1.   RAYUF MOHAMMAD S/O PEER MOHAMMAD ,
                             AGED ABOUT 61 YEARS, R/O VILL. WAIDHAN
                             TEH, AND DISTT.SINGRAULI M.P (MADHYA
                             PRADESH)

                        2.   SALEEM MOHAMMAD S/O PEER MOHAMMAD,
                             AGED ABOUT 58 YEARS, VILLAGE WAIDHAN
                             TH.AND DISTT.SINGRAULI (MADHYA PRADESH)

                        3.   HALEEM MOHAMMAD S/O PEER MOHAMMAD
                             , AGED ABOUT 56 YEARS, VILLAGE WAIDHAN
                             TH.AND DISTT.SINGRAULI (MADHYA PRADESH)

                        4.   SAKEER MOHAMMAD S/O PEER MOHAMMAD ,
                             AGED ABOUT 54 YEARS, VILLAGE WAIDHAN
                             TH.AND DISTT.SINGRAULI (MADHYA PRADESH)

                        5.   KALEEM MOHAMMAD S/O PEER MOHAMMAD
                             , AGED ABOUT 52 YEARS, VILLAGE WAIDHAN
                             TH.AND DISTT.SINGRAULI (MADHYA PRADESH)

                        6.   NASIBUNNISHA D/O PEER MOHAMMAD AGED
                             ABOUT 50 YEARS, VILLAGE WAIDHAN TH.AND
Signature Not
 SAN
Verified                     DISTT.SINGRAULI (MADHYA PRADESH)

Digitally signed by S
HUSHMAT                 7.   FAHIDUNNISHA D/O PEER      MOHAMMAD
HUSSAIN                      VILLAGE WAIDHAN TH.AND DISTT.SINGRAULI
Date: 2022.07.12
16:52:40 IST
                                      2
           (MADHYA PRADESH)

8.         SAHIDUNNISHA D/O PEER MOHAMMAD AGED
           ABOUT 62 YEARS, VILLAGE WAIDHAN TH.AND
           DISTT.SINGRAULI (MADHYA PRADESH)

9.         AYSA BEGUM D/O PEER MOHAMMAD VILLAGE
           WAIDHAN TH.AND DISTT.SINGRAULI (MADHYA
           PRADESH)

10.        STATE OF MADHYA PRADESH               THROUGH
           C O L L E C T O R DISTT.SINGRAULI      (MADHYA
           PRADESH)

                                                                .....RESPONDENTS
           (BY SHRI V.P. SHAH, ADVOCATE FOR RESPONDENTS 1-5 AND
           SHRI P.K. GAUTAM, ADVOCATE FOR RESPONDENT NO.10)

      This appeal coming on for admission this day, th e court passed the

following:
                                      ORDER

This second appeal has been filed by the defendant no.1 challenging the

judgment and decree dated 15.04.2021 passed by the 4th Additional District Judge, H.Q. Waidhan, District-Singrauli in Civil Appeal No.300002/2015 confirming the judgment and decree dated 16.12.2014 passed by the Second Civil Judge, Class-I, (H.Q. Waidhan) Singrauli in Civil Suit No.149-A/2013 (old no.13-A/2011) whereby the suit filed by respondent no.1 to 9/plaintiffs was decreed.

2. Facts of the case in short are that the plaintiffs instituted a suit with regard to land bearing Khasra No.952/3 area 2.428 hectare situated in Village-Ganiyari, Tehsil and District-Singrauli against the appellant/defendant no.1 impleading the State Government party as defendant no.2 with the allegations that the land in question was given on Patta to ancestor of plaintiffs namely Peer Mohammad and after his death, plaintiffs are owner/Bhoomiswami and in possession of the land in question and so recorded in the revenue

papers. In the year 1995-1996, with the consent of the plaintiffs, defendant no.1/appellant started residing in one room constructed on the land in question but thereafter, he did not leave possession of the room. On the aforesaid and inter alia allegations, the plaintiffs prayed for relief of declaration of title and permanent injunction with regard to land in question and also prayed for recovery of possession from the room as shown in the plaint map from green ink

3. Defendant no.1/appellant appeared and filed written statement denying the plaint allegations and contended that that the plaintiffs are not owner/Bhoomiswami or in possession of the land in question and as such are not entitled for any decree of declaration of title or for recovery of possession from the room in question. He contended that the defendant no.1 is not in possession of the land or room constructed over the land bearing Khasra No.952/3 but is in possession of Khasra No.952/5, which is Government land and so recorded in the revenue papers. Accordingly, he prayed for dismissal of the suit.

4. Learned counsel for the appellant/defendant no.1 submits that the plaintiffs have failed to prove the Patta (Ex.P/7) by adducing cogent evidence and the defendant no.1 was never given possession of the room in question by the plaintiffs but he is in possession of the room constructed on land bearing

Khasra No.952/5. He further submits that the learned Courts below have not considered the evidence available on record with regard to possession of defendant no.1 and only on the basis of presumption that the Patta is 30 years old document, presumed it to be a proven document and decreed the suit. He further submits that from the revenue entry (Ex.D/2 and D/3), it is clear that defendant no.1 is in possession of the land bearing Khasra No.952/5 and not in

possession of Khasra No.952/3. He further submits that in such circumstances, learned Courts below ought to have ordered for demarcation. Accordingly, he prays for admission of this second appeal.

5. Learned counsel for the respondents/plaintiffs supported the judgment and decree passed by learned Courts below.

6. Heard the learned counsel for the parties and perused the record.

7. It appears from the Patta (Ex.P/7) that the land in question bearing Khasra No.952/3 was granted to plaintiffs' ancestor namely Late Peer Mohammad and on that basis name of his wife Ayesha was recorded in the revenue papers available on record as Ex.P/2, P/3 and P/4. Despite being party, the State Government has not questioned grant of Patta (Ex.P/7) in favour of the plaintiffs. Learned Courts below have on the basis of documentary and oral evidence found that the plaintiffs are owner/Bhoomiswami and in possession of the land bearing Khasra No.952/3 area 6 acres and also found that the defendant no.1 was given permission by plaintiffs for residence in one room as shown in the plaint map from green ink. As the Patta is a public document, its genuineness has rightly been presumed by the learned Courts below in absence of any challenge by the State Government. Further, the defendant no.1/appellant is not owner of any property but he claims himself to be in possession of Government land that too without any right, therefore, it was not necessary to pass order of demarcation/spot inspection.

8. Accordingly, there being concurrent findings of fact with regard to ownership and possession over the land bearing Khasra No.952/3 area 6 acres so also with regard to the room shown in green ink in plaint map, no interference is called for in this second appeal in the limited scope of Section

100 of the CPC.

9. Resultantly, this Second Appeal fails and is hereby dismissed in limine under Order 41 Rule 11 of CPC.

(DWARKA DHISH BANSAL) JUDGE sh