Rafique Khan vs State Of M.P.
2023 Latest Caselaw 10182 MP

                                                -( 1 )-               S.A. No. 115 of 2006


                            IN THE HIGH COURT OF MADHYA PRADESH
                                           AT GWALIOR BEFORE
                                   HON'BLE SMT. JUSTICE SUNITA YADAV
                                      SECOND APPEAL No. 115 of 2006
                   Between:-
                   RAFIQUE KHAN S/O S/O SHRI CHAND
                   KHAN        ,    AGED     ABOUT         47    YEARS,
                   OCCUPATION: R/O MEVATI MOHALLA,
                   JAGNAPURA, GWALIOR DISTT.GWALIOR
                   (MADHYA PRADESH)

                                                                                .... APPELLANT

                   (BY SHRI PRASHANT SHARMA- ADVOCATE)

                   VS

                   1. STATE OF M.P. THROUGH COLLECTOR,
                       DISTRICT GWALIOR (MADHYA PRADESH)
                   2. MUNICIPAL CORPORATION, GWALIOR
                       THROUGH COMMISSIONER, MUNICIPAL
                       OCCUPATION: CORPORATION, GWALIOR
                         (MADHYA PRADESH)


                                                                        ......... RESPONDENT
                    (SHRI PRABHAT PATERIYA, DEPUTY ADVOCATE GENERAL FOR
                    THE RESPONDENT NO. 1/STATE )
                    (SHRI SAMEER KUMAR SHRIVASTAVA - ADVOCATE FOR THE
                    RESPONDENT NO. 2)
               -------------------------------------------------------------------------------------
                  Whether approved for reporting : YES
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 06-07-2023
09:42:02 AM
                                               -( 2 )-             S.A. No. 115 of 2006


                                               JUDGMENT

(Passed on 05/07/2023)

1. This second appeal under section 100 of Civil

Procedure Code (for brevity, CPC) arises out of judgment

and decree dated 05/01/2006 passed by Additional District

Judge, (N.D.P.S.) District Gwalior in Civil Appeal No. 45-

A/2005, by which, appeal against judgment and decree

dated 11/08/2005 passed by 8 t h Civil Judge, Class-I,

Gwalior in Civil Suit No. 157A/2004 dismissing the suit

for declaration of title and permanent injunction filed by

appellant/plaintiff, was dismissed.

2. The brief facts giving rise to filing of this appeal are

that a suit for declaration and permanent injunction was

filed by the plaintiff/appellant claiming himself as

Bhumiswami of the suit land bearing Survey No. 449, 450,

451 and 452 situated at village Jagnapura, Dist. Gwalior.

Further relief of permanent injunction was also sought to

restrain the respondents from interfering in possession of

appellant in the suit land. The case of the appellant was that Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 3 )- S.A. No. 115 of 2006

he is in possession and occupation of the suit land for more

than seventy years since the time of his forefather late Shri

Rahim Khan. Name of his father late Shri Chand Khan had

been recorded in the revenue record from Samvat 1966 to

Samvat 2017 as sub-tenant and Maurashi. After enforcement

of M.B.L.R.T. Act and M.P. Land Revenue Code

appellant/plaintiff has acquired Bhumiswami rights in the

suit land. However, without any authority and without any

order of any revenue officer, name of appellant's father did

not continue in the revenue record after Samvat 2017. On

asking by the appellant to the concerned Patwari to correct

the mistake, earlier they assured the appellant, but in April,

1998 refused to correct the mistake and threatened the

appellant to dispossess him from the suit land with the aid

of police. It was further pleaded that on 10-5-98 subordinate

of respondent No. 2 tried to collect the garbage in the suit

land and dispossessed the appellant from there, in such

circumstances, the instant suit was filed by the plaintiff

/appellant.

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 4 )- S.A. No. 115 of 2006

3. On being noticed, respondent No. 2 submitted the written

statement and denied the averments made in the plaint. It was

contended that the respondent No. 2 is the owner and in possession of

the suit land and the same is being used by the respondent No. 2.

4. Besides the documentary evidence, plaintiff /appellant

examined himself and the witnesses Yasin Khan, Kallu Khan, Babu

Singh Narwariya & Tulsi Das to prove his case while the respondent

No. 2 examined Patwari Gajraj Singh.

5. On the basis of pleadings, learned trial Court framed

the issues and after recording the evidence of both the

parties dismissed the suit filed by the plaintiff/appellant

vide judgment and decree dated 11/08/2005.

6. Being aggrieved by the judgment and decree dated

11/08/2005, the plaintiff/appellant has preferred an appeal

before the lower appellate court. The lower appellate court

after hearing learned counsel for the rival parties has

dismissed the appeal vide judgment and decree dated

05/01/2006, hence, this second appeal. Signature Not Verified

Signed by: SANJAY Learned counsel for the appellant argued that the NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 5 )- S.A. No. 115 of 2006

impugned judgment and decree passed by the court below is

contrary to record and against the settled principle of law,

hence, the same deserves to be quashed/set aside. It is

further argued that on perusal of khasra entries Ex. P-1 to

P-4 indicate that the plaintiff /appellant's father late Shri

Chand Khan was recorded as Gair Maurashi, thereafter as

sub tenant since Samvat 1965 to Samvat 2017 and

thereafter without any order, name of municipality has been

recorded in the khasra entries. This aspect has not been seen

by the learned court below. It has further been argued that

learned courts below have committed serious illegality in

not giving finding of appellant's possession ignoring oral

evidence relying upon illegal khasra entries, hence, the

impugned judgment and decree is vitiated.

8. On the other hand, learned counsel for the

respondent/defendant supported the impugned judgment and

decree passed by the court below and prayed for dismissal

of the instant appeal being bereft of merit and substance . It

is further argued that the plaintiff has utterly failed to prove Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 6 )- S.A. No. 115 of 2006

that he has become the Bhumiswami by the operation of law.

No substantial question of law arises in this second appeal.

Therefore, the appeal be dismissed.

9. Heard the counsels for parties and perused the record.

10. This appeal is admitted for final hearing on the

following substantial question of law :-

"Whether both the courts below are justified in dismissing the suit /appeal overlooking the khasra entries of samvat 1997 Ex. P-1 and samvat 1965 to samvat 2017 and also overlooking their presumption."

11. To prove its case, the appellant/plaintiff Rafiq Khan

has examined himself as PW-1, Yasin Khan as PW-2,

witnesses Kallu Khan as PW-3, Babu Singh Narwariya as

PW-4 and Tulsidas Khatik as PW-5 and also adduced

documents Khasra Panchashala Ex. P/1 to Ex. P/3.

12. On the other hand, respondent/defendant has examined

Gajraj Singh and filed the register of misal bandobast 1997

Ex. D/3 in respect to the survey Nos. 449, 459, 450, 452, in Signature Not Verified which, the name of Municipal Corporation is shown and Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 7 )- S.A. No. 115 of 2006

Exhibit D-2 which is a receipt given by Municipal

Corporation to Collector Gwalior.

13. A bare perusal of the judgment dated 11/08/2005

passed by learned trial court reveals the court below while

passing the judgment at para 10 has considered the entries

of Khasra Panchashala Ex. P-1 to P-3 and also discussed

in detail the implications of these documents. Learned first

appellate court has also re-appreciated the entire evidence

including implications of khasra entries of Exhibit P-1 to

Exhibit P-3 at para 9, 10 and 12 of the impugned judgment.

Therefore, in the considered opinion of this court the

substantial question of law which is framed does not arise

that the suit and first appeal were dismissed overlooking the

implications of khasra entries of samvat 1997 Ex. P-1 and

samvat 1965 to samvat 2017.

14. Upon a plain reading of these khasra entries, it appears

that in khasra panchshala Ex. P-1 only two survey numbers

i.e. 449 and 450 are present and these two survey numbers

are recorded in the ownership of the Government ( milkiyat Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 8 )- S.A. No. 115 of 2006

sarkar). In this khasra panchashala in column number 8 the

name of Chand Khan S/o Rahim Khan is recorded as gair

maurasi kashtakaar only for a period of one year. In khasra

panchashala Ex. P/2 ( samvat 2010 to 2012) survey Nos.

450, 451 and 452 are recorded in the name of Municipality

in column No. 4 and name of Chand Khan S/o Rahim Khan

is recorded in column No. 5 as upkrishak (sub-tenant). In

khasra panchashala Ex. P/3 ( samvat 2013 to 2017) survey

No. 449, 450 and 451 are recorded in the ownership of

Municipality in column No. 4 and name of Chand Khan S/o

Rahim Khan is recorded as upkrishak (sub-tenant).

15. Thus the learned trial as well as first appellate court

have rightly held that these are stray entries and continuous

entries in respect to the title of Chand Khan S/o Rahim

Khan in all khasra numbers are not there on record. After

samvat 2017, no entries or revenue record is there to prove

the possession or title of the plaintiff or his ancestors. In

Ex. P/1 and Ex. D-3 which are khasra of samvat 1997, the

name of Chand Khan S/o Rahim Khan is recorded only for Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 9 )- S.A. No. 115 of 2006

a period of one year.

16. The main arguments of the appellant is that since name

of Chand Khan S/o Rahim Khan is recorded as sub-tenant in

Exhibit P-1 and Ex. D-3 therefore, by operation of law his

successor/plaintiff became owner after coming into force M.P.

Land Revenue Code. In support of his arguments, learned

counsel for the appellant has placed reliance on the judgment

of Supreme Court in the case of Salem Municipality

appellant vs. P. Kumar & Ors. (Civil Appeal Nos. 9 to 11 of

2014 vide judgment dated 15/11/2018) and judgement of

Patna High Court in the case of Raja Shiva Prasad Singh

vs. Hira Singh and Ors. dated 25 t h April, 1921 in LPA No.

103 of 1919. However, the facts and circumstances of the

above mentioned cases are different from this case. In this

case, as discussed above in Ex.P-1 and Ex. D-3 the name of

Chand Khan is recorded only for a period of one year. The

relevant khasra was of samvat 2007 when M.P. Land Revenue

Tenancy Act, samvat 2007 came in to force. The khasra

entries of samvat 2006,2007,2008 and 2009 have not been Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 10 )- S.A. No. 115 of 2006

placed on record by the plaintiff to prove his case that Chand

Khan or his son were Pakka-Tenant at relevant time. The

plaintiff has not placed on record any revenue record or

khasra entries to show that he was Occupancy Tenant when

the M.P. Land Revenue Code came in to force in the year

1959. Therefore, in the absence of essential requirement of

the Act it can not be said that the plaintiff has become

owner of the disputed land by operation of law.

17. The document Ex. D/2 which is the receipt given by

Municipal Corporation to Collector Gwalior, reveals that

the Government has taken possession of the disputed land

from the Municipal Corporation and not from ancestor of

the plaintiff. This aspect has also corroborated the

contention of the respondent that the plaintiff was not in

possession of the disputed land. Otherwise also question of

possession is pure question of fact which can not be

interfered in second appeal.

18. In the case of Goverdhan Vs Ghasiram 2002 RN 68,

Signature Not it is held Verified that whether, a person is Sub-Tenant or not is a Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 11 )- S.A. No. 115 of 2006

finding of fact which can not be disturbed in second appeal.

19. In the case of Raghunath Vs Gyana 1968 RN 544 it

is held that in order to prove sub tenancy, the person must

prove that he holds a land from Pakka-Tenant. Any other

kind of possession will not be treated as sub-tenancy. The

plaintiff in the present case has not pleaded about source of

sub-tenancy and therefore, mere encroachment does not give

any right to plaintiff. In view of the above, even if the

stray khasra entries are presumed to be correct, the same do

not prove the title of plaintiff over the suit property.

20. The above discussion shows that the learned courts

below have properly appreciated the facts and law and

given concurrent findings which can not be interfered in

this second appeal. No substantial question of law arises in

this appeal as well. It is well established principle of law

that this Court in exercise of power under Section 100 of

CPC cannot interfere with the findings of fact unless and

until they are perverse and without any record. Signature Not Verified

Signed by: SANJAY The Supreme Court in the case of S.Subramanian Vs. NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 12 )- S.A. No. 115 of 2006

S. Ramasamy and others reported in (2019) 6 SCC 46 has

held as under:

" As per a catena of the decisions of this Court, while deciding the second appeal under Section100 CPC, the High Court is not required to r e a p p r e c i a t e the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the courts below when the findings recorded by both the courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law."

22. The Supreme Court in the case of Thimmaiah and others Vs. Ningamma and another, reported in (2000) 7 SCC 409 has held as under:

"This Court has noted that the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be". In other words, if there is some evidence and the appreciation of the evidence is erroneous, a second appeal will not lie.

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM

-( 13 )- S.A. No. 115 of 2006

23. In the light of above discussion since this second appeal sans

merits, therefore, the same is hereby dismissed.

There shall be no order as to costs.

(SUNITA YADAV) JUDGE Durgekar*

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 06-07-2023 09:42:02 AM