Madhya Pradesh High Court
Kailash vs Aliram on 14 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 14 th OF DECEMBER, 2023
SECOND APPEAL No. 1135 of 2016
BETWEEN:-
KAILASH (DEAD ) THR. LRS.
1(A) ARJUN S/O KAILASH RAJOLA, AGED ABOUT 27
YE A R S , R/O BOKAMUKASA, DISTT. CHHINDWARA
(MADHYA PRADESH)
1(B) BHEEM CHANDRAWANSHI S/O KAILASH
CHANDRAWANSHI, AGED ABOUT 26 YEARS, R/O
RAJOLA BANKA, RAJOLA, DISTT. CHHINDWARA
MUKSA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI M.R. VERMA - ADVOCATE)
AND
1. ALIRAM S/O SHRI DAYALAL GAULI, AGED ABOUT
50 YEARS, RAJOLA AMARWARA TAH
AMARWARA, DISTT. CHHINDWARA (MADHYA
PRADESH)
2. SMT. PREMA BAI W/O ALIRAM GAULI, AGED
ABOUT 50 YEARS, RAJOLA AMARWARA, TAH
AMARWARA, CHHINDWARA (MADHYA PRADESH)
3. COLLECTOR CHHINDWARA THE STATE OF
MADHYA PRADESH OFFICE OF COLLECTOR
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRAVESH NAVERIYA - ADVOCATE FOR RESPONDENTS 1-2 AND
MS. GARIMA TIWARI - PANEL LAWYER FOR RESPONDENT 3/STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on IA Nos.6267/23, 6319/23 and 6265/23.
2. The aforesaid applications have been filed for substitution of legal
representatives of sole appellant-Kailash.
3. Learned counsel for the appellant submits that the legal representatives
were not aware about pendency of appeal and also were not aware about the
law of substitution of legal representatives.
4. As there is no counter to the applications, the same are allowed with
the direction to learned counsel for the appellant to carry out necessary
amendment in the memo of appeal today itself.
5 . Accordingly IA Nos.6267/23, 6319/23 and 6265/23 are disposed
off/closed.
6. Also heard on the question of admission.
7. This appeal has been preferred by the appellant/plaintiff- Kailash (now
dead thr. LRs) challenging the judgment and decree dtd. 16.08.2016 passed by
Additional District Judge, Amarwada, Distt. Chhindwara in civil appeal No.23-
A/13 affirming the judgment and decree dtd. 31.07.2013 passed by Additional
Judge to the Court of Civil Judge Class-I, Amarwada, Distt. Chhindwara in civil
suit No.76-A/2011, whereby appellant/plaintiff's suit for declaration of title and
permanent injunction in respect of agricultural land khasra No.117/19-20 area
1.915 hect. situated in village Rajola, has been dismissed.
8. Learned counsel for the appellant/plaintiff submits that the defendant
1-Aliram/bhoomiswami of the land, had by executing agreement dtd. 15.07.1991
transferred the land after receiving entire consideration of Rs.28,000/- and
handed over possession to the plaintiff and since thereafter the plaintiff is in
cultivating possession of the land. As after execution of agreement, no action
was taken by the defendant to obtain possession from the plaintiff, therefore, he
has acquired title by adverse possession. He submits that learned courts below
have without taking into consideration the oral evidence regarding proof of the
said agreement, committed illegality in dismissing the suit. With the aforesaid
submissions he prays for admission of the second appeal.
9. Learned counsel appearing for respondents 1-2 supports the
impugned judgment and decree passed by courts below and prays for dismissal
of the second appeal.
10. Heard learned counsel for the parties and perused the record.
11. Undisputedly the land in question belonged to defendant 1-Aliram,
who is said to have executed agreement in question dtd. 15.07.1991 (Ex.P/1) in
favour of the plaintiff, whereby the plaintiff claims himself to be
owner/bhoomiswami and in possession and on that basis he has filed the suit
for declaration of title and permanent injunction on the basis of adverse
possession and he never tried to file the suit for specific performance on the
basis of agreement of sale, which has not been found proved.
12. In view of the aforesaid it is clear that alleged entry of the plaintiff
over the land in question was in the capacity of owner and with a view to prove
possession, the plaintiff has not filed any documentary evidence viz. khasra
entry etc. therefore, learned courts below upon due consideration of oral
evidence of the parties, have come to conclusion that plaintiff has failed to
prove possession on the suit land.
13. It is well settled that finding on the question of possession is a pure
finding of fact and is not liable to be interfered with in the limited scope of
second appeal under Section 100 CPC. As such, second appeal does not
involve any substantial question of law.
14. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
15. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
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