Madhya Pradesh High Court
Man Singh vs Basanta Bai on 12 May, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 12th OF MAY, 2022
SECOND APPEAL No. 1584 of 2021
Between:-
1. MAN SINGH S/O LATE RAM CHARAN GOND,
AGED ABOUT 64 YEARS, OCCUPATION:
AGRICUTLURIST ARE VILL. LAMSARI P.S.
KARANPATHAR DIST. ANUPPUR MP (MADHYA
PRADESH)
2. MOHE LAL SINGH S/O LATE REVA SINGH, AGED
ABOUT 29 YEARS, OCCUPATION: AGRICULTURE
VILLAGE LAMSARI PS KARANPATHAR
(MADHYA PRADESH)
3. MOHAR SINGH S/O SUKH LAL GOND, AGED
ABOUT 51 YEARS, OCCUPATION: AGRICULTURE
VILLAGE LAMSARI PS KARANPATHAR
(MADHYA PRADESH)
4. CHHOTE LAL SINGH S/O SUDHWA GOND, AGED
ABOUT 53 YEARS, OCCUPATION: AGRICULTURE
VILLAGE LAMSARI PS KARANPATHAR
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI YOGESH SINGH BAGHEL, ADVOCATE )
AND
1. BASANTA BAI W/O BASORI GOND, AGED
ABOUT 74 YEARS, VILL. ADVAR P.S.
KARANPATHAR DIST. ANUPPUR MP (MADHYA
PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R DISTT. ANUPPUR (MADHYA
PRADESH)
.....RESPONDENTS
Signature
SAN Not
Verified (BY SHRI A.S. BAGHEL, DY. G.A. FOR THE STATE)
Digitally signed by
KUMARI PALLAVI Th is appeal coming on for hearing this day, the court passed the
SINHA
Date: 2022.05.14
13:26:02 IST
2
following:
ORDER
This second appeal has been filed by the appellants/plaintiffs challenging
the judgment and decree dated 16.08.2021 passed by Additional District Judge,
Rajendragram, Distt.-Anuppur in RCA No. 1-A/19 whereby the judgment and
decree dated 07.12.2018 passed by Civil Judge, Class-II Rajendragram Distt.-
Anuppur in Civil Suit No. 53-A/17 dismissing the suit of the
appellants/plaintiffs, has been confirmed.
The short facts arising out of this appeal are that the plaintiffs/appellants
had instituted a suit for declaration of title and restoration of possession with
regard to agricultural land survey No. 110 area 8.24 acre, 114 area 8.61 acre,
115 area 0.33 acre total area 17.18 acre situated in Village Arwar, Tehsil-
Puhsprajgarh, Distt.Anupur claiming themselves to be successors of their
ancestor Khojiha. The plaintiffs alleged that Khojiha was bhoomi swami of the
land in question and they are in possession of the land since the time of their
ancestor but in the month of ashadh 2016, the defendant No.1 Basanta Bai
dispossessed them and got a patta issued in her name. The plaintiffs came to
know about entry of the name of defendant No.1 after receiving certified copies
of the revenue record whereas ancestor of the plaintiffs never transferred the
land in question to the defendant No.1. On the aforesaid and interalia
allegations, the suit was filed.
Defendant No.1 filed written statement denying the allegations made in the
plaint and contended that since the year 1958-59 her husband Basori Gond is
bhoomi swami, who remained in possession till his lifetime and after his death
the defendant No.1 is in cultivating possession of the disputed land. The
plaintiffs have never been in possession of the land and no dispute/quarrel
among the defendant No.1 and plaintiffs took place in the month of Asadh
2016. On the aforesaid and interalia contentions , the suit was prayed to be
dismissed.
Defendant No.2-State did not file any written statement and was
proceeded ex-parte.
On the basis of pleadings of the parties, learned trial Court framed as
many as 6 issues and recorded evidence of the parties. The plaintiffs in support
of their case produced Khasra of the year 1951-52 (Ex. P-1) as well as the
Khasra of the year 2016-17 (Ex. P-2) and examined Man Singh (PW-1) and
Amar Singh (PW-2). As against this, the defendant No.1 Basanta Bai examined
herself as DW-1 as well as Kundan Singh (DW-2) and produced family tree
(Ex. D-1), khatauni of the year 1958-59 (Ex. D-2) rashid bahi (Ex. D-3) &
Bhooadhikar and rin pustika (Ex. D-4).
After considering the material available on record, learned trial Court
while deciding the issue No.1 and 2 has categorically held that the plaintiffs are
n o t bhoomi swami of the suit land and that the defendant No.1 has not
dispossessed the plaintiffs from the suit land but the plaintiffs have never been
in possession of the land in question. Learned appellate Court has affirmed the
judgment and decree passed by learned trial Court.
Learned counsel for the appellants submits that the plaintiffs or their
ancestor have never transferred the suit land to the defendant No.1 and Khasra
Ex. P-1 shows that plaintiffs' ancestor Khojiha was recorded bhoomi swami of
the land in question. He further submits that it was for the defendant No.1 to
prove as to how her name was recorded in the khasra and the entry of her name
that too without any order of the competent authority is of no significance. By
showing the proposed substantial questions of law, the learned counsel for the
appellants submits that learned Court below has erred in holding that the khasra
Ex. P-1 does not prove title of plaintiffs' ancestor Khojiha and the learned
Courts have erred in interpreting the documents Ex. P-1 and P-2. He further
submits that in presence of the document filed alongwith application under
Order 41 Rule 27 of CPC and without there being any document of transfer of
the land in favour of the defendant No.1 the suit ought to have been decreed.
Accordingly, he prays for admission of the second appeal.
Heard learned counsel for the appellant and perused the record.
In support of the plea of ownership of Khojiha, the plaintiffs have
produced Khasra of the year 1951-52 (Ex.P/1), in column No.7 of which name
of Khojiha is there but at the same time in column No.8, the name of Basori
Gond (husband of defendant No.1) is appearing. Similarly, in the khasra of the
year 2016-17 (Ex.P/2), the name of defendant No.1 Basanta Bai wife of Basori
is appearing in column No.3. Similar are the entries in the documents produced
by the defendant No.1 which shows that the defendant No.1 is recorded
bhoomi swami and in possession of the land in question.
By way of application under Order 41 Rule 27 of CPC, the plaintiffs have
placed khatauni of the samwat 1983 on record showing the name of khojiha
but no entry has been filed after the year 1951-52 certainly upto the year 1959-
60, when the M.P. Land Revenue Code, 1959 came into force, which could
show the ownership of Khojiha or of the plaintiffs. However, both the learned
Courts below have taken into consideration the aforesaid entries and have come
to conclusion that the plaintiffs are not bhoomi swami of the land in question.
As regards dispossession of the plaintiffs by the defendant No.1-Basanta
Bai in the month of Asadh 2016, the plaintiffs have adduced oral evidence. Man
Singh (PW-1) in para 10 states and admits that prior to date of quarrel, he was
not cultivating the field. The learned Courts below have appreciated the oral and
documentary evidence with regard to the possession of the plaintiffs as well as
of defendant No.1 over the land in question and have come to conclusion that
the plaintiffs are not in possession of the land and have never been in
possession.
In view of the aforesaid concurrent findings of the fact with regard to title
and possession, no illegality or perversity is found to have been committed by
the learned Courts below in passing the impugned judgment and decree. Even
otherwise, the finding of possession recorded by learned Courts below is pure
finding of fact, which is not liable to be interfered with in the limited scope of
Section 100 of CPC and is not assailable in the second appeal as has been held
by Hon'ble the Apex Court in the case of Mohan Lal Vs. Nihal Singh
reported in (2001) 8 SCC 584.
Resultantly, the appeal is dismissed in limine having not found
involvement of any substantial question of law.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
