Madhya Pradesh High Court
Basori vs Nathuva Alias Natthu on 5 January, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5 th OF JANUARY, 2023
SECOND APPEAL No. 943 of 2018
BETWEEN:-
1. BASORI S/O LATE BIJJU DHIMAR, AGED ABOUT
52 YEARS, R/O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
2. GABBU S/O LATE BIJJU DHIMAR, AGED ABOUT 42
Y E A R S , R / O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
3. SUIYA S/O LATE BIJJU DHIMAR, AGED ABOUT 37
YEARSR / O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
4. BHULLI S/O LATE DHILLA DHIMAR, AGED ABOUT
42 YEARS, R / O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
5. TANTU S/O LATE NATHUVA DHIMAR, AGED
ABOUT 27 YEARSR/O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
6. SANTU S/O LATE NATHUVA DHIMAR, AGED
ABOUT 27 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI JAGDISH PRASAD SINGROLE- ADVOCATE)
AND
1. NATHUVA ALIAS NATTHU S/O BANSHIYA
DHIMAR, AGED ABOUT 42 YEARS R / O VILLAGE
RAMPURA, TEHSIL KHARGAPUR, DISTRICT
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
2
TIKAMGARH (MADHYA PRADESH)
2. MUNNA S/O LATE BAN SHIYA DHIMAR, AGED
ABOUT 38 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
3. CHHOTELAL S/O LATE BANSHIYA DHIMAR, AGED
ABOUT 34 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
4. STATE OF MP THROUGH COLLECTOR
TIKAMGARH (MADHYA PRADESH)
5. SMT BHUNTI BAI D/O LATE BIJJU DHIMAR, AGED
ABOUT 48 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
6. BHURI BAI W/O LATE B I J J U DHIMAR, AGED
ABOUT 73 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
7. THALUA S/O RAMLA DHIMAR, AGED ABOUT 67
Y E A R S , R / O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
8. MALLA S/O RAMLA DHIMAR, AGED ABOUT 57
Y E A R S , R / O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
9. HAJJU DHIMAR S/O LATE GHANSHU DHIMAR,
AGED ABOUT 32 YEARS, R/O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
10. HALKE S/O LATE GHANSHU DHIMAR, AGED
ABOUT 30 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
11. MANNU S/O LATE JHALLA DHIMAR, AGED
ABOUT 30 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
3
12. MUNTAN S/O LATE JHALLA DHIMAR, AGED
ABOUT 32 YEARSR/O VILLAGE RAMPURA, TEHSIL
KHARGAPUR, DISTRICT TIKAMGARH (MADHYA
PRADESH)
13. MADHO S/O LATE JHALLA DHIMAR, AGED
ABOUT 28 YEARS, R / O VILLAGE RAMPURA,
TEHSIL KHARGAPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
The second appeal under Section 100 of CPC has been filed against the
judgement and decree dated 05.03.2018 passed by II Additional District Judge,
Tikamgarh, in Regular Civil Appeal No. 36/2017 thereby affirming the judgment
and decree dated 27.02.2017 passed by Civil Judge Class-II, Tikamgarh, in
Civil Suit No. 4A/2014 by which the suit filed by the respondents/plaintiffs for
declaration of title as well as for declaration of order dated 05.10.2012 passed
by Tehsildar and order dated 02.05.2013 passed by SDO, Baldeogarh, District
Tikamgarh as null and void, was decreed.
It is case of the plaintiffs/respondents that on 14.09.1959, SDO,
Tikamgarh granted patta of disputed agricultural land to the father of the
plaintiffs namely late Shri Banshiya as well as in favour of late Ramla Dhimar,
father of defendants No. 5 and 6 namely Thalua and Malla and grand father of
defendants No. 7 and 8 namely Hajju and Halke and, therefore, it was claimed
that the defendants No. 1 to 4 have no right or title over the land in question.
Without there being any order by the Competent Authority, the name of Dhilla,
father of defendant Nos. 1 and 2 namely Bijju and Bhulli and grandfather of
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
defendant No. 3 Tantu as well as defendant No. 4 Santu was recorded. The
said mistake was corrected, however, after the death of Dhilla, defendants No. 1
and 2 filed an application for mutation of their names, which was allowed. Being
aggrieved by the order passed by the Tehsildar, the plaintiffs preferred an
appeal which was dismissed by the SDO, Baldeogarh, District Tikamgarh, by
holding that the land in question was given to Dhilla and Ramla on lease
whereas, no such lease was executed in favour of the Dhilla. It was further
pleaded that the plaintiffs who are the representatives of branch of Banshiya are
in possession of the land in dispute whereas, the defendants No. 1 to 4 are not
in possession of the land in dispute, but they are making every efforts to
dispossess them and accordingly the suit was filed.
Defendants No. 1 to 11 filed their joint written statement. It was pleaded
that no lease deed was granted in favour of the plaintiffs. It was also denied that
the plaintiffs are in possession of the land in dispute, but it was claimed that
they have never cultivated the land. It was submitted by the defendants that the
land in dispute is the self acquired property of Dhilla and he remained in
cultivating possession of the same during his life time and after his death,
defendants No. 1 to 11 came in possession. From the year 1972-73 to 1975-76
and 1977-78 to 1981-82 the names of Dhilla, Shyamla, S/o Sukka Dhimar were
recorded in the revenue records. However, in the year 1987-88, names of the
defendants were wrongly deleted from the revenue records and accordingly
they filed an application under Section 115 and 116 of the MPLRC and by
order dated 05.10.2012 it was directed that the names of the defendants be also
recorded in the revenue records.
The trial Court after framing issues and recording evidence came to the
conclusion that the defendants have taken a self contradictory defence. On one
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
hand they have claimed that the land in question was the self acquired property
of Dhilla whereas, on the other hand they themselves had filed Khatoni Ex.-D-1
to show that the said land was given on lease to Dhilla and Shyamla. Further
more, the lease deed by which the lease of land in dispute was given to Dhilla
and Shyamla has also not been filed. Thus, the defendants have failed to prove
that the land in dispute was ever given to Dhilla and Shyamla on lease.
So far as mutation of name of Dhilla in the revenue records is concerned,
it was held that the mutation entry is merely for fiscal purposes and are not
documents of title. The trial Court also came to a conclusion that the plaintiffs
have proved that a lease deed was issued by order dated 14.09.1959 in favour
of Banshiya and Ramalla. Thus, the Trial Court below came to a conclusion
that the land in dispute was given on lease to Banshiya and Ramalla and Dhilla
has no right or title in the said land.
Being aggrieved by the judgment and decree passed by the trial Court,
the appellants preferred an appeal which too has been dismissed by the
impugned judgement and decree.
Accordingly, this appeal has been filed on the following substantial
question of law:
"(i) Whether the discrepancy in the documents of
Patta Ex.P-20 produced by the plaintiffs was not sufficient
to discard the title of the plaintiffs in the suit property?
(ii) Whether in a suit for declaration of title, without
framing the issue with regard to title, merely on the basis
of finding with regard to possession, in suit could have
been decreed?
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
(iii) Whether the preponderance of evidence of the
defendants has been omitted from consideration and
findings with regard to evidence of plaintiffs are
perverse?"
Heard learned counsel for the appellants.
The Courts below have given a finding that the lease deed was issued in
favour of Banshiya and Ramalla by SDO, Tikamgarh by order dated
14.09.1959. Although, the appellants had claimed that a lease deed was issued
in favour of Dhilla and Shyamla, but no lease deed has been placed on record.
It is well establish principle of law that mere mutation in the revenue record
would not give right or any title as the revenue records are not the documents of
title but they are meant for fiscal purposes only.
The Supreme Court in the case of Jitendra Singh Vs. State of Madhya
Pradesh by judgment dated 06th September, 2021 passed in SLP (Civil) No.
13146/2021 has held as under:-
"6. Right from 1997, the law is very clear. In the case of
Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7
SCC 137, this Court had an occasion to consider the effect of
mutation and it is observed and held that mutation of property in
revenue records neither creates nor extinguishes title to the property
nor has it any presumptive value on title. Such entries are relevant
only for the purpose of collecting land revenue. Similar view has
been expressed in the series of decisions thereafter."
Counsel for the appellants could not point out any perversity in the
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
judgement and decree passed by the trial Court as well as Appellate Court. It is
true that Banshiya, Ramalla and Dhilla are real brothers, but once the land in
dispute was given to Banshiya and Ramalla on lease and there was no lease
deed in favour of Dhilla, this Court is of the considered opinion that the Courts
below did not commit any mistake by holding that the plaintiffs who are the
legal representatives of Banshiya are entitled for one half share along with the
defendants No. 5 to 8.
As the appellants have failed to prove that the land in question was ever
given to Dhilla, on the contrary, the respondents have proved by leading cogent
evidence that the land in question was leased out to Banshiya and Ramalla, this
Court is of the considered opinion that the appellants have failed to prove any
right or title in the land in dispute.
Since, lease deed was granted jointly in the name of Banshiya and
Ramalla, therefore, the Courts below have rightly held that the plaintiffs are
entitled for half of their share in the land in dispute along with defendants No. 5
to 8.
It is well establish principle of law that the findings of fact cannot be
interfered by this Court in exercise of power under Section 100 of CPC unless
and until they are perverse and the contrary to record or based on inadmissible
evidence. As no perversity could be pointed out by counsel for the appellants,
this Court is of the considered opinion that this appeal sans merits.
Accordingly, judgement and decree dated 05.03.2018 passed by II
Additional District Judge, Tikamgarh, in Regular Civil Appeal No. 36/2017
arising out of the judgment and decree dated 27.02.2017 passed by Civil Judge
Class-II, Tikamgarh, in Civil Suit No. 4A/2014 are hereby affirmed.
The appeal fails and is hereby dismissed in limini.
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
(G.S. AHLUWALIA)
JUDGE
ashish
Signature Not Verified
Signed by: ASHISH KUMAR
LILHARE
Signing time: 12-01-2023
18:08:09
