Ajudhdhi vs Raghuraj
2022 Latest Caselaw 9806 MP

                                                     1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 18th OF JULY, 2022

                                         SECOND APPEAL No. 1511 of 2020

                             Between:-
                             AJUDHDHI S/O SHRI RAMA KACHCHI, AGED
                             ABOUT        47      YEARS, OCCUPATION:
                             AGRICULTURIST VILLAGE BARACHH TAHSIL
                             AND DISTT. PANNA (MADHYA PRADESH)

                                                                          .....APPELLANT
                             (BY SHRI D.S. BAGHEL-ADVOCATE)

                             AND

                        1.   RAGHURAJ S/O SHRI PUNNA KACHCHI, AGED
                             ABOUT 57 YEARS, VILLAGE BARACHH TAHSIL
                             AND DISTT. PANNA (MADHYA PRADESH)

                        2.   BADI BAHU (DEAD) THR. LRS. MST. KUSUM BAI
                             W/O SHRI PUSAUWA KACHCHI, AGED ABOUT 56
                             YEARS, VEERSINGHPUR TAH. PAWAI (MADHYA
                             PRADESH)

                        3.   SMT. RAJA BAI W/O SHRI ANARILAL
                             KUSHWAHA, AGED ABOUT 51 YEARS, VILLAGE
                             SIMRI TAH. AMANGANJ (MADHYA PRADESH)

                        4.   NONELAL S/O SHRI BAKSHA KACHCHI, AGED
                             ABOUT 64 YEARS, VILLAGE BARACHH TAH.
                             (MADHYA PRADESH)

                        5.   KURAIDI S/O SHRI BAKSHA KACHCHI, AGED
                             ABOUT 59 YEARS, VILLAGE BARACHH TAH.
                             (MADHYA PRADESH)

                        6.   INDRA BAI D/O SHRI BAKSHA KACHCHI, AGED
                             ABOUT    57   YEARS, GRAM KANTI TAH.
                             AMANGANJ (MADHYA PRADESH)

Signature Not           7.   SONA BAI D/O SHRI BAKSHA KACHCHI, AGED
 SAN
Verified                     ABOUT 52 YEARS, GRAM HATHKURI TAH.
                             PAWAI (MADHYA PRADESH)
Digitally signed by S
HUSHMAT
HUSSAIN
Date: 2022.07.21
10:55:53 IST
                                 2
8.         GUDDI BAI D/O SHRI BAKSHA KACHCHI, AGED
           ABOUT 49 YEARS, GRAM JAITPUR TAH.
           BIJAWAR (MADHYA PRADESH)

9.         STATE OF M.P. THR. COLLECTOR DISTT. PANNA
           (MADHYA PRADESH)

                                                                .....RESPONDENTS
           (BY SHRI J.L. SONI, ADVOCATE FOR RESPONDENT-1
           SHRI RAJI MATHAI, PANEL LAWYER FOR RESPONDENT 8/STATE
           )

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

This second appeal has been filed against the judgment and decree dated 24.08.2020 passed by Second Additional District Judge, Panna in Civil Appeal

No.900053A/2014 confirming the judgment and decree dated 29.09.2014 passed by the Third Additional Judge to the Court of First Civil Judge, Class-II Panna in Civil Suit No.17-A/2014 whereby the suit filed by the respondents/plaintiffs for declaration of title, restoration of possession and for permanent injunction as well as for mesne profit was decreed and at the same time, counter claim filed by the appellant/defendant-1 for declaration of title and permanent injunction on the basis of adverse possession was dismissed.

2. In short, facts of the case are that the plaintiffs/respondents claiming themselves to be Bhoomiswami of land survey no.3035 area 2 acre 73 decimal (new number 3039 area 1.06 hectare) situated in Village-Barachh, Tehsil-Panna, District-Panna instituted a suit for declaration of title and recovery of possession so also for mesne profits.

3. Upon service of notice, defendants 1 and 6 filed separate written statement(s) denying the plaint allegations and contended that the land in question belonged to Mst. Gudiya and previously the land was recorded in the

name of her husband Mangla Kachhi but mistakenly the name of Punna and Baksa was recorded. In fact Mangla and thereafter Gudiya being Bhoomiswami of the land in question, the Tehsildar on the basis of report of Patwari passed order on 23.06.1965 (Ex.D/5), on the basis of which name of Mst. Gudiya was recorded in the revenue papers. It was contended that the plaintiffs have never been in possession of the land and the land is in possession of the defendants since beginning. On inter alia contentions, the suit was prayed to be dismissed. Along with the written statement, defendant-1 also filed counter claim and taking the plea of adverse possession claimed that the defendant-1 being in possession of the land for a long period has acquired title by adverse possession and prayed for decree of declaration of title and permanent injunction.

4. The plaintiffs by filing written statement to the counter claim denied the contentions made in the counter claim and reiterated the same defence as was taken in the plaint and prayed for dismissal of the counter claim.

5. Learned trial Court on the basis of pleadings framed as many as nine issues and vide judgment and decree dated 29.09.2014 held the plaintiffs to be Bhoomiswami of the land in question and dismissed the counter claim filed by the defendant-1 and passed decree of restoration of possession along with mesne profit @ Rs.9,000/- per annum. Learned First Appellate Court vide its judgment and decree dated 24.08.2020 confirmed the judgment and decree of

trial Court and dismissed the appeal filed by the defendant-1/Ajudhdhi.

6. Learned counsel for the appellant submits that on the basis of order (Ex.D/5) passed by Tehsildar on 23.06.1965, name of Mst. Gudiya wife of Mangla was recorded in the revenue papers and till now this order is intact and plaintiffs despite having knowledge, had not challenged this order within appropriate time. He further submits that originally the land in question belonged

to Mangla and his ancestors regarding which he moved an application under Order 41 Rule 27 of CPC before First Appellate Court and submitted certain documents showing the entry of names of Mangla's ancestor, which has wrongly been rejected by learned First Appellate Court. He further submits that the defendant-1 is in possession of the land for a long period, therefore, he has also acquired title by adverse possession, which has not been considered properly by learned Court below while passing the impugned judgment and decree. Accordingly, he prays for admission of this second appeal.

7. Learned counsel for the respondent-1 supports the impugned judgment and decree passed by learned Courts below and prays for dismissal of the second appeal.

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

9. Except the order dated 23.06.1965 (Ex.D/5) passed by Tehsildar, there is no other document on record to show that name of Gudiya or her husband Mangla was recorded in the revenue record prior to 1956 or at anytime. This order dated 23.06.1965 was passed on the basis of some Patwari report, which has also not been placed on record. What was the material before the Tehsildar before passing the order dated 23.06.1965, has also not been placed on record, therefore, only on the basis of order dated 23.06.1965, it cannot be said that Mst. Gudiya or Mangla was Bhoomiswami of the land in question. On the contrary, plaintiffs have filed revenue record w.e.f. the year 1955-56 till 1965 and onwards, which shows that disputed land was recorded in the name of Punna and Baksa.

10. Learned Courts below after having considered the oral and documentary evidence available on record have come to conclusion that the

land in question belonged to Punna and Baksa and not to Mst. Gudiya or Mangla Kachhi or to the defendant-1 Ajudhdhi. In view of the documentary evidence available on record, no illegality or perversity is found in the judgment and decree passed by Courts below.

11. Even otherwise, by filing counter claim, defendant-1 Ajudhdhi has taken plea of adverse possession over the land in question. The plea of adverse possession taken by defendant-1 impliedly speaks about admission of title of the plaintiffs over the land in question, which has been found proved by learned Courts below. Accordingly, the learned Courts below have not committed any error in dismissing the counter claim also.

12. Hence, there being no involvement of substantial question of law in the present second appeal, the same deserves to be and is hereby dismissed without any order as to costs.

(DWARKA DHISH BANSAL) JUDGE sh