Madhya Pradesh High Court
Purushottam Chaurasiya vs Murarilal Chaurasiya on 28 August, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL No. 913 of 2021
BETWEEN:-
1. PURUSHOTTAM CHAURASIYA S/O SHRI
NARAYAN PRASAD CHAURASIYA, AGED
ABOUT 70 YEARS
2. UMESH CHAURASIYA S/O
PURUSHOTTAM CHAURAIYA, AGED
ABOUT 26 YEARS
3. SUSHILA W/O PURUSHOTTAM
CHAURASIYA, AGED ABOUT 60 YEARS,
ALL R/O VILLAGE BILAOUA, TEHSIL
DABRA, DISTRICT GWALIOR (MADHYA
PRADESH)
........APPELLANTS
(BY SHRI SARVESH SHARMA - ADVOCATE )
AND
MURARILAL CHAURASIYA S/O SHRI
NARAYAN PRASAD CHAURASIYA, AGED
ABOUT 75 YEARS, R/O VILLAGE
BILAOUA, TEHSIL DABRA, DISTRICT
GWALIOR (MADHYA PRADESH)
........ RESPONDENTS
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Reserved on : 22.08.2023
Pronounced on : 28.08.2023
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This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
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Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
2
JUDGMENT
This second appeal under section 100 of Civil Procedure Code (for
brevity, CPC) arises out of judgment and decree dated 01/07/2021
passed by Fourth Additional District Judge, Dabra, District Gwalior
(M.P.) in Regular Civil Appeal No.49/2018 affirming the judgment and
decree dated 29/09/2018 passed in RCSA No.05/2017 by Second Civil
Judge, Class-II, Dabra, District Gwalior (M.P.).
2. Brief facts giving rise to the present appeal are that the respondent
/plaintiff filed a suit for a permanent injunction against the
appellants/defendants to the effect that the agricultural land bearing
Survey No.1447 Min 1 area 0.836 hectare situated at village Biloua,
Tehsil Dabra under the ownership and possession of the plaintiff. The
plaintiff after depositing the fee of Rs.165/- vide receipt no.2683/95,
dated 09.01.1973 in the office of Assistant Conservation Officer,
Gwalior Sub-Division Gwalior levelled the disputed land, made it more
fertile and after taking the loan from bank dug a Well and built Madaiya
(hut). The plaintiff has sown his own crop on the disputed land, which is
standing on the spot. By taking undue advantage of the old age of the
plaintiff, the defendants want to forcibly occupy the disputed land,
whereas the defendants have no interest in the disputed land.
3. The plaintiff has further pleaded in his plaint that he was taking
care of the crops standing of suit land on 31.12.2016. At that time, the
defendants came on the spot and defendants no.1 & 3 instigated
defendant no.2 to take possession of the disputed land. When the
plaintiff resisted, the defendants threatened him for dire consequences
and also threatened to take possession forcibly. Thus, the suit is filed.
4. After being made a formal party to State of M.P. and without
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
seeking any relief against State, the plaintiff requested to permanent
injunction be issued against the defendants no.1 to 3 with the intention
that the defendants should not interfere in the possession of the plaintiff
on the disputed land and should not evict the plaintiff from the disputed
land further they don't damage the bean crop sown by the plaintiff, don't
cut it forcefully, don't get it cut by anyone and don't get it destroyed.
5. Appellants/defendants no.1 to 3 filed their written statement and
denied the averments mentioned in plaint by contending that neither the
Land Conservation Officer never nor the plaintiff got the disputed land
levelled. From the letter and receipt presented by the plaintiff in this
case, it appears that the Officer had instructed Brijmendra Singh to do
the work, but the plaintiff has not submitted any panchnama report
regarding levelling of land. The plaintiff has not mentioned in his plaint
that on what date and in how many area, the bean crop was sown. The
defendant no.1 is in continuous possession of the land for 40 years and
he has been sowing and yielding the crops of bean and Paan. The
plaintiff is well aware of this fact. The plaintiff was posted as an
accountant in the Betnari Hospital. The plaintiff and defendant no.1
remained in jail for a period of 8 years, 7 months & 16 days of a murder
case in the year 1976. Thereafter, by order of Governor, they were
released and since then the defendants were in possession of the
disputed land. The plaintiff alongwith his family is a permanent resident
of Lalitpur Colony. Plaintiff is not having any house in Bilaoua. The
plaintiff is not entitled to obtain decree of permanent injunction in
respect of the disputed land and in the absence of possession against the
defendants, nor he is entitled to receive litigation costs from the
defendants.
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
6. The appellants/defendants by denying the averments mentioned in
plaint further contended that there is a Madhaiya (hut) of plaintiff on the
disputed land on which a tin-shed is installed, and there is a boring with
a hand pump, near a garden of mangoes and Khinni trees is also built
about an area of land of 15 Viswa. The disputed Madhaiya (hut) is
situated at ward no.7 house no.119/1 of Nagar Panchayat Biloua.
Defendant no.1 has deposited Rs.120/- for consolidated tax of the said
building in the year 2015-2016. The encroachment of plaintiff over the
disputed land is void in the eyes of law because the defendant no.1 has
been in continuous possession on the land in disputed for 40 years. The
plaintiff has not filed any application for possession of disputed land
and the defendant no.1 is in adverse possession since 25.12.1985
therefore, the civil suit filed by the plaintiff may be dismissed.
7. The defendant no.4 by submitting written statement contended
that the plaintiff is not entitled to get any relief against him, therefore,
the suit filed by the plaintiff may be dismissed with cost. It is further
contended that the defendant no.4 has been made as a formal party by
the plaintiff and no relief has been sought against him.
8. On the basis of the aforesaid pleadings, the learned Trial Court
framed as many as three issues in the matter and directed the parties to
lead evidence to prove the said issues in their favour.
9. In support of the plaint, plaintiff examined himself as PW-2 and
also examined (PW-1) Keshav Kushwaha, (PW-3) Naresh Chourasiya
and filed documentary evidence Khasra Panchsala of the year 2014-15
Exh.P/1, Receipt issued by Assistant Soil Conservation Officer, Sub-
Division Gwalior dated, 09.01.1973 Exh.P/2, the letter of Land
Conservation Officer dated, 09.01.1973 Exh.P/3, Notice in respect to
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
installment of agricultural loan Exh.P/4, State Bank pass-book of
agricultural loan Exh.P/5, Panchnama in respect to possession dated
29.03.1973 Exh.P/6, Loan Notice of State Bank of India Exh.P/7,
Khasra Exh.P/8, Land Rights Loan Book Exh.P/9, Receipt Bahi
Exh.P/10 in support of his case and they have corroborated the
statement of plaintiff that the possession over the suit land is under
possession of plaintiff/respondent.
10. Appellants/defendants have examined Ramswaroop (DW-1),
Maan Singh (DW-2), Kamlesh (DW-3), Narayan (DW-4), Kamla
Shankar (DW-5).
11. The learned Trial Court after appreciation of the evidence made
available on record, vide its judgment and decree dated 29.09.2018
allowed the Suit filed by the plaintiff/respondent in RCSA No.05/2017.
12. Being aggrieved by the judgment and decree passed by trial
Court, the appellants preferred an appeal before the appellate court.
Learned first appellate Court affirming the judgment and decree of trial
Court dismissed the appeal filed by the appellants vide judgment and
decree dated 01/07/2021 passed by Fourth Additional District Judge,
Dabra, District Gwalior (M.P.) in Regular Civil Appeal No.49/2018,
therefore, appellants/defendants have occasion to file this second appeal
under Section 100 of C.P.C.
13. Assailing the findings recorded by the learned courts below,
learned counsel for appellants/defendants submits that the learned
courts below have committed grave error in disbelieving the evidence
lead by the appellants. Further argument is that it was duty of the courts
below to appreciate the evidence properly which has not been done.
Hence, the findings recorded by both the courts below are perverse,
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
against the settled principles of law.
14. Heard learned counsel for the appellants and perused the materials
available on record.
15. The appellants have also filed I.A. No.2273/2022, an application
under Order 41 Rule 27 of CPC for taking documents as additional
evidence on record.
16. The documents are orders of Revenue Authorities.
For ready and reference and convenience Order 41, Rule 27 of
CPC reads as below;
27. Production of additional evidence in Appellate Court.-(1)
The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But
if--
(a) the court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an
Appellate Court, the court shall record the reason for its admission.
17. On perusal of record reveals that both the parties have filed their
evidence in respect to ownership and possession over the suit property.
The documents annexed with the application are not necessary for
disposal of this appeal as it reveals the factum of possession after
judgment and decree of trial Court. It does not reveal the status of
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
possession at the time of filing of suit. Therefore, the documents are not
required to enable this Court to pronounce the judgment.
Consequently, I.A. No.2273/2022 is dismissed.
18. The perusal of records reveal that upon due appreciation of
evidence available on record, the learned trial Court recorded a finding
that the plaintiff has successfully proved his case. The learned first
Appellate Court has also after due appreciation re-appreciated the entire
evidence and discussed the same in para 13 to 35 of its judgment and
found no illegality committed by the learned trial Court while decreeing
the suit.
19. In this case, appellants/defendants have claimed his ownership
over suit property on the basis of adverse possession and tried to prove
the fact by adducing evidence of witnesses as mentioned above. The
appellants/defendants in their written statements pleaded that they are in
possession of suit property for more than 40 years and
respondent/plaintiff had not filed the suit within 12 years of their
possession, therefore, the suit is time barred. Thus, during trial before
Civil Judge, Class-II, Dabra, defendants claimed their title on the basis
of adverse possession. However, in appeal, they tried to make a totally
different case by arguing that the suit property belong to Joint Hindu
Family and Patta was issued in favour of plaintiff as a member of joint
family. Thus, it is clear that appellants/defendants are taking two
contradictory grounds to prove ownership as well as possession over the
suit property which cannot be accepted. Therefore, learned First
Appellate Court has rightly dismissed the appeal.
20. In view of above discussion and on the basis of oral as well as
documentary evidence, learned trial Court as well as first appellate
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
Court have rightly found that the property in dispute is in possession of
respondent/plaintiff. The entries in revenue records also prove the case
of plaintiff.
21. It is well established principle of law that this Court in exercise of
powers under Section 100 of CPC cannot interfere with the findings of
fact unless and until they are perverse and contrary to the record.
Merely because a second view is possible, cannot be a ground to
interfere with the concurrent findings of fact.
22. In view of above and considering the submissions made by the
counsel for the appellant as well as upon perusal of both the judgments
and decree of Courts below, the appeal is found to be devoid of any
substance. Both the Courts have recorded impeccable findings based on
proper appreciation of the evidence on record. No question of law much
less substantial question of law arises warranting interference under
Section 100 of CPC.
23. Accordingly, the judgment and decree dated 01.07.2021 passed
by Fourth Additional District Judge, Dabra, District Gwalior (M.P.) in
Regular Civil Appeal No.49/2018 as well as the judgment and decree
dated 29/09/2018 passed in RCSA No.05/2017 by Second Civil Judge,
Class-II, Dabra, District Gwalior (M.P.). are hereby affirmed.
24. The appeal fails and is hereby dismissed in limine.
(SUNITA YADAV )
JUDGE
vpn/-
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 29-08-2023
01:12:46 PM
