Suresh vs Sanjay
2023 Latest Caselaw 22210 MP

Madhya Pradesh High Court

Suresh vs Sanjay on 22 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 22 nd OF DECEMBER, 2023
                                              SECOND APPEAL No. 341 of 2015

                           BETWEEN:-
                           SURESH S/O JAIRAM GAJBIYA, AGED ABOUT 42 YEARS,
                           GOVARI VADONA TEH. SAUSAR DISTT. CHHINDWARA
                           (MADHYA PRADESH)

                                                                                       .....APPELLANT
                           (BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)

                           AND
                           1.    SANJAY S/O SATYAPRAKASH TAMBI, AGED
                                 ABOUT 35 YEARS, BAJAJ NAGAR TUMSAR NORTH
                                 AMBAZARI ROAD       TEH.  TUMSAR    DISTT.
                                 BHANDARA (MAHARASHTRA)

                           2.    PRASHANT S/O GHANSHYAMDAS GUPTA, AGED
                                 ABOUT 33 YEARS, MAIN ROAD, KAMPTHI TAH.
                                 KAMPTHI NAGPUR (MAHARASHTRA)

                           3.    THE STATE OF MADHYA PRADESH, THROUGH
                                 COLLECTOR      CHHINDWARA CHHINDWARA
                                 (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           (MS. PURNIMA BHALERAO - ADVOCATE FOR RESPONDENTS 1-2 AND
                           SHRI SATISH PATERIYA - PANEL LAWYER FOR RESPONDENT 3/STATE )

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

This second appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dtd. 26.02.2015 passed by Second Additional District Judge, Chhindwara in civil appeal No.13-A/2012 affirming

the judgment and decree dtd. 20.12.2011 passed by Civil Judge Class-II, Sausar, Distt. Chhindwara in civil suit No.236-A/2011 whereby courts below have dismissed appellant/plaintiff's suit filed simplicitor for permanent injunction and decreed counter claim of defendants 1-2 filed for restoration of possession based on title/sale deed dtd. 29.02.2008 (Ex. D/1).

2. Learned counsel for the appellant/plaintiff submits that undisputedly the plaintiff is in possession of the suit land since prior to purchase of the land by defendants vide registered sale deed dtd. 29.02.2008 and although the defendants purchased the suit land from its previous owner, but he was not delivered possession on the land. Learned counsel further submits that the

defendants filed counter claim for restoration of possession on the basis of title/sale deed dtd. 29.02.2008 (Ex.D/1) but in the light of plea of adverse possession taken by the appellant/plaintiff, in the written statement to the counter claim, the defendants were required to seek declaration of title before seeking relief of restoration of possession and counter claim filed simplicitor for possession without seeking declaration is not maintainable in view of the provision contained in section 257(x) of the MP Land Revenue Code, 1959 (in short 'the MPLRC'). In support of his submissions he placed reliance on the decision in the case of Ramgopal Kanhaiyalal vs. Chetu Batte AIR 1976 MP 160 and Smt. Dhudo Bai vs. Bajirao and Anr. 2004(4) MPHT 235. With the aforesaid submissions, he prays for admission of the second appeal.

3. Heard learned counsel for the appellant/plaintiff and perused the record.

4. In the suit filed simplicitor for permanent injunction by the appellant/plaintiff, the defendants 1-2 claiming themselves to be bhoomiswami of the land in question on the basis of registered sale deed dtd. 29.02.2008 (Ex.

D/1) executed by previous owner of the land prayed for restoration of possession.

5. As against title shown by way of registered sale deed dtd. 29.02.2008, the plaintiff took plea of adverse possession, but failed to produce any documentary evidence showing his long possession over the land in question, therefore, learned courts below have concurrently held the plaintiff to be in possession of the land but negatived the plea of adverse possession taken by the plaintiff and consequently on the basis of proven title of the defendants 1-2 on the basis of registered sale deed dtd. 29.02.2008 (Ex.D/1) decreed the counter claim. After perusing the entire record, this Court does not find any illegality in the judgment and decree passed by learned courts below.

6. So far as the question of maintainability of suit in the light of provision contained in Section 257(x) of the Code is concerned, in the present case the defendants 1-2 in the suit filed simiplicitor for permanent injunction prayed for restoration of possession on the basis of registered sale deed dtd. 29.02.2008 and by filing written statement to the counter claim, the plaintiff claimed himself to be owner on the basis of adverse possession, therefore, in the present case the dispute about title between the parties was clearly involved, which could be resolved only by the civil court and not by the revenue court.

7. In view of the aforesaid the decisions relied upon by the counsel for

the appellant/plaintiff are not applicable to the present case.

8. Resultantly, this second appeal in absence of any substantial question of law fails and is hereby dismissed.

9. Pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE ss