Premnarayan Kirar vs Smt.Pushpa Bai Patel
2023 Latest Caselaw 1409 MP

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 24 th OF JANUARY, 2023
                                             SECOND APPEAL No. 837 of 2022

                          BETWEEN:-
                          1.    PREMNARAYAN KIRAR S/O NABBE PATEL, AGED
                                ABOUT    65   YEARS, OCCUPATION: FARMER
                                VILLAGE     KHULRI    TEHSIL   GADARWARA
                                DISTRICT    NARSINGHPUR     (MP)  (MADHYA
                                PRADESH)

                          2.    RAJESH KIRAR S/O SHRI PREMNARAYAN PATEL,
                                AGED ABOUT 43 YEARS, OCCUPATION: FARMER
                                R/O VILLAGE KHULRI, TEHSIL GADARWARA,
                                DISTRICT-NARSINGHPUR (MADHYA PRADESH)

                                                                                     .....APPELLANTS
                          (BY SHRI B.P. PATEL-ADVOCATE)

                          AND
                          1.    SMT.PUSHPA BAI PATEL W/O SHRI TODAL SINGH
                                PATEL KIRAR, AGED ABOUT 55 YEARS, R/O DEVRI
                                TESIL TENDUKHEDA DISTRICT NARSINGHPUR
                                (MP) (MADHYA PRADESH)

                          2.    THE STATE OF MADHYA PRADESH, THROUGH
                                THE COLLECTOR,      NARSINGHPUR DISTRICT-
                                NARSINGHPUR(M.P.) (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                          (BY SHRI A.K. MISHRA-ADVOCATE )

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

This second appeal has been preferred by defendants 1-2 challenging the judgment and decree dated 22-09-2021 passed by 1st District Judge

Signature Not Verified Gadarwara, District Narsinghpur in Civil Appeal No.86/2019, affirming the Signed by: SWETA SAHU Signing time: 1/25/2023 3:59:05 PM

judgment and decree dated 28.08.2019 passed by 1st Civil Judge Class I Gadarwada, District Narsinghpur in Civil Suit No.26-A/2017, whereby learned trial court decreed the suit of the respondent 1/plaintiff filed for declaration of title, restoration of possession and permanent injunction in respect of land khasra no.12/3 area 0.405 hectare situated in Mouja Khulri, District Narsinghpur and dismissed the counter claim filed by the appellants/defendants 1-2.

2. Learned counsel for the appellants submits that the plaintiff is not owner/bhoomiswami of the land in question but her husband was owner and there is no documentary evidence available on record to transfer the ownership by husband in favour of the plaintiff-Smt. Pushpa Bai Patel. He further submits

that the defendants are in possession of the land since the year 2002, therefore, the suit filed in the year 2017 is clearly barred by limitation and the defendants have acquired title by adverse possession. He further submits that in the aforesaid circumstances, the suit filed by the plaintiff ought to have been dismissed and the counter claim filed by defendants ought to have been decreed.

3. Learned counsel for the respondent 1 supports the impugned judgment and decree and submits that there is no illegality in the judgment and decree passed by learned courts below.

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

5. Learned courts below after having considered claims of rival parties and taking into consideration the documentary and oral evidence available on record have held that the plaintiff/respondent 1 is bhoomiswami of the disputed land and also held that the defendants 1-2/appellants have failed to prove their adverse possession over the land in question and resultantly decreed the suit Signature Not Verified Signed by: SWETA SAHU Signing time: 1/25/2023 3:59:05 PM

and dismissed the counter claim. Learned counsel for the appellants have failed to show any document recording their possession from the year 2002-2003 and have also failed to show that the land in question belongs to husband of plaintiff-Smt. Pushpa Bai Patel.

6. In view of the aforesaid and documentary evidence available on record showing the plaintiff-Smt Pushpa Bai Patel to be bhoomiswami of the land in question, it cannot be said that the plaintiff is not bhoomiswami but her husband Todal Singh was bhoomiswami or the defendants have acquired title by adverse possession.

7. Accordingly, no substantial question of law appears to be involved in the second appeal and the same is hereby dismissed in limine under Order 41 Rule 11 CPC.

8. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 1/25/2023 3:59:05 PM