Ratan vs Bhagirath
2023 Latest Caselaw 885 MP

                            1             S.A. No.1065/2020



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 16th OF JANUARY, 2023
              SECOND APPEAL No. 1065 of 2020
BETWEEN:-

RATAN S/O HARLAL KUSHWAHA,
AGED    ABOUT      58    YEARS,
OCCUPATION: AGRICULTURIST R/O.
VILLAGE     GELWARA,     TAHSIL
PRATHVIPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)



                                           .....APPELLANT
(BY SHRI BHANU PRATAP YADAV - ADVOCATE)

AND

1.    BHAGIRATH      S/O   HALLU
      KUSHWAHA, AGED ABOUT 38
      YEARS, R/O VILLAGE GELWARA
      TAHSIL PRITHVIPUR, DISTRICT
      TIKAMGARH          (MADHYA
      PRADESH)



2.    PREETAM       S/O    HALLU
      KUSHWAHA, AGED ABOUT 35
      YEARS, R/O VILLAGE GELWARA
      TAHSIL PRITHVIPUR, DISTRICT
      TIKAMGARH          (MADHYA
      PRADESH)



3.    KANAI S/O HALLU KUSHWAHA,
      AGED ABOUT 33 YEARS, R/O
      VILLAGE GELWARA TAHSIL
      PRITHVIPUR,       DISTRICT
      TIKAMGARH         (MADHYA
                                  2                    S.A. No.1065/2020


     PRADESH)



4.   ALAM S/O HALLU KUSHWAHA,
     AGED ABOUT 31 YEARS, R/O
     VILLAGE GELWARA TAHSIL
     PRITHVIPUR,      DISTRICT
     TIKAMGARH        (MADHYA
     PRADESH)



5.   RAJU S/O HALLU KUSHWAHA,
     AGED ABOUT 27 YEARS, R/O
     VILLAGE GELWARA TAHSIL
     PRITHVIPUR,      DISTRICT
     TIKAMGARH        (MADHYA
     PRADESH)



6.   RAMCHARAN      S/O  RAMDIN
     KUSHWAHA, AGED ABOUT 43
     YEARS, R/O VILLAGE GELWARA
     TAHSIL PRITHVIPUR, DISTRICT
     TIKAMGARH          (MADHYA
     PRADESH)



7.   STATE    OF        M.P.    THR.
     COLLECTOR,             DISTRICT
     TIKAMGARH              (MADHYA
     PRADESH)



                                                    .....RESPONDENTS
.........................................................................................................
      This appeal coming on for admission this day, the court passed the

following:

                               JUDGMENT

This Second Appeal has been filed under Section 100 of CPC

against the judgment and decree dated 05.02.2022 passed by First Additional District Judge, Niwari, District Tikamgarh (M.P.) in Regular Civil Appeal No.04/2018 arising out of judgment and decree dated 22.01.2018 passed by Civil Judge, Class-II, Niwari, District Tikamgarh (M.P.) in Civil Suit No.100-A/2014.

2. The facts necessary for disposal of the present Appeal in short are that the appellant filed a suit for declaration of title, permanent injunction and possession on the ground that the land in dispute i.e. Khasra No.695/2/5 area one acre situated in village Gelwara Tahsil Prathvipur, District Tikamgarh is recorded in the name of the plaintiff and he is in possession and owner of the said land. 0.405 aare of the aforesaid land is disputed, which is shown as A, B, C, D in the plaint map. It is the case of the plaintiff that he is the exclusive owner and in possession of the land in dispute. The defendants No.1 to 6 are influential persons having political protection, whereas the plaintiff is a poor and simple person. Taking advantage of weakness of the plaintiff, it was pleaded that defendants No.1 to 6 have forcibly encroached upon a part of the land in dispute and whenever it was objected by the plaintiff, they started quarrelling with him. Accordingly, an application for demarcation was filed. Demarcation was conducted by the revenue inspector after giving notice to the defendants No.1 to 6. On 19.06.2014, the revenue inspector carried out the demarcation and it was found that the defendants No.1 to 6 have forcibly encroached upon 0.405 aare of the plaintiff. Since the defendants are influential persons, therefore, they were not ready to listen to the revenue inspector and also uprooted the signs, which were installed for identification of the land. The plaintiff had also lodged a report but because of influential status of the defendants, no action was taken and accordingly, it was claimed that the defendants No. 1 to 6 have encroached upon 0.405

aare of the land belonging to the plaintiff and thus, the suit was filed for declaration of title, possession as well as for permanent injunction.

3. The defendants No.1 to 6 filed their written statement and denied the plaint averments. It was submitted that the plaintiff is not the owner of the disputed land and the revenue entries are wrong. It was further pleaded that no demarcation had taken place and a forged demarcation report has been prepared. It was further claimed that the plaintiff has not disclosed the source of his title and mutation in revenue record is not a document of title. The sale of Government land, which was given on lease without the permission of the Collector, is not valid. The SDO, Niwari, had also given a finding against the plaintiff. It was also pleaded that the plaintiff has an alternative remedy of filing an application under Section 250 of MPLR Code.

4. The trial Court after framing issues and recording evidence decreed the suit.

5. Being aggrieved by the judgment and decree passed by the trial Court, the respondents preferred an Appeal, which has been allowed by the Appellate Court by the impugned judgment and decree dated 05.02.2020.

6. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the counsel for the appellant/plaintiff that the demarcation was validly carried out by the revenue inspector, which is duly proved by the plaintiff by exhibiting the documents of demarcation from Exhibit P/1 to P/5. No objection was raised by the defendants at the time of demarcation. The lower Appellate Court has wrongly held that the demarcation was carried out in absence of the defendants, whereas Bhagirath (D.W.1) has stated that at the time of purchasing the land, the plaintiff had got the land demarcated. By referring to the evidence of

Bhagirath (D.W.1), it was submitted that in paragraph No.7 of his cross- examination, this witness has admitted that the plaintiff had purchased the land in dispute about 20 years back and from thereafter, he is in possession of the same. The plaintiff had got the land demarcated immediately after purchasing the land but claimed that his signatures on the Panchnama are forged, whereas he had not given any consent. He further stated that he had also lodged an objection before the Tahsildar. However, he admitted that he has not filed a copy of the objection.

7. Accordingly, this Appeal has been filed on the following proposed substantial questions of law:

"(i) Whether the lower appellate court committed in error in discarding Document P/1 to P/5 and thereby dismissing the claim of the plaintiff?

(ii) Whether the suspicious raised by the lower appellate court with regard to documents Ex.P/1 to P/5 factually and legally sustainable?

(iii) Whether the finding recorded by the lower appellate court is perverse?

(iv) Whether the lower appellate court committed an error of law in reversing the well reasoned judgment and decree passed by the trial court?"

8. Heard the learned counsel for the appellant.

9. So far the admission made by Bhagirath (D.W.1) in paragraph No. 7 of his cross-examination is concerned, the same cannot be read against the defendants and even against Bhagirath (D.W.1) himself. In paragraph No.7 Bhagirath (D.W.1) has stated that immediately after purchasing the land, the plaintiff had got the same demarcated and Bhagirath had made a statement that at the time of the said demarcation, he had not given any

consent and his signatures are forged. Undisputedly, the plaintiff purchased the land by registered sale deed dated 12.02.1998, whereas the plaintiff has relied upon the demarcation, which was carried out by the revenue inspector on 19.06.2014. If the evidence of Bhagirath (D.W.1) is read, then it appears that some demarcation had taken place immediately after purchase of land i.e. on 12.02.1998 and any evidence given by Bhagirath (D.W.1) with regard to the said demarcation cannot read in respect of the demarcation in question i.e. 19.06.2014. Furthermore, the counsel for the appellant could not point out the signatures of Bhagirath on any of the documents of demarcation i.e. Exhibit P/1 to Exhibit P/5. Exhibit P/3 is a notice, according to which it was issued to Harpa, Ghansu, Ramdeen, Rampyari, Grin s/o Hralal Kacchi. It is clear from this document that no notice was ever given to any of the defendants. Thus, one thing is clear that the revenue inspector had conducted the demarcation in absence of the defendants. Further Section 129(4) of MPLR Code reads as under:

"129. Demarcation of boundaries of survey number or sub-division or plot number. -

(1) xxxxx.

(2) xxxxx (3) xxxxx (4) On the receipt of the demarcation report, the Tahsildar may, after giving opportunity of hearing to the parties interested including the neighbouring land holders, confirm the demarcation report or may pass such order as he thinks fit."

10. The plaintiff has not filed any document to show that any final order was passed by the Tahsildar under Section 129 (4) of MPLR Code. The demarcation report relied upon by the plaintiff cannot be said to be complete unless and until it is accepted by the Tahsildar by passing an

order under Section 129(4) of MPLR Code. Therefore, not only the demarcation report has no sanctity in eye of law in absence of final order under Section 129(4) of MPLR Code but it is clear from the notice Exhibit P/3 that no notice was given to any of the defendants. Thus, it is clear that even otherwise the demarcation was done by the revenue inspector behind the back of the defendant, therefore, this Court is of the considered opinion that the First Appellate Court did not commit any mistake by discarding the demarcation proceedings Exhibit P/1 to Exhibit P/5. No other argument is advanced by the counsel for the appellant.

11. In view of aforesaid discussion, this Court is of the considered opinion that no substantial question of law as proposed by the counsel for the appellant arises in the present case.

12. Ex consequentia, judgment and decree dated 05.02.2022 passed by First Appellate Court in Regular Civil Appeal No.04/2018 is hereby affirmed.

13. The Appeal fails and is hereby dismissed in limine.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.01.18 18:43:49 +05'30'