Madhya Pradesh High Court
Santosh Kumar vs Smt. Imrati Bai on 21 March, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21 st OF MARCH, 2023
SECOND APPEAL No. 2580 of 2018
BETWEEN:-
SANTOSH KUMAR S/O SHRI BHAGWANDAS GURJAR,
AGED ABOUT 56 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE UDA, TEHSIL AND
DISTRICT HARDA (M.P.)
.....APPELLANT
(BY SHRI ASHISH SHROTI - ADVOCATE )
AND
1. SMT. IMRATI BAI W/O SHRI GARIBDAS GURJAR,
AGED ABOUT 56 YEARS, NEAR SHANKER
MANDIR MAJOR JOSHI COLONY SHYAM NAGAR
HARDA (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-HARDA (M.P.)
3. GARIB DAS GURJAR S/O SHRI SHIV PRASAD
GURJAR R/O NEAR SHANKAR MANDIR MAJOR
JOSHI COLONY SHYAM NAGAR HARDA (M.P.)
4. BHAGWANDAS GURJAR S/O SHRI SHIV PRASAD
GURJAR R/O VILLAGE UDA, TAHSIL AND DISTT
HARDA (M.P.)
5. KAMALDAS CHALOTRE S/O SHRI SHIV PRASAD
GURJAR R/O BAG MUGLIA, BHOPAL (MADHYA
PRADESH)
6. SMT. SUSHILA BAI D/O SHRI SHIV PRASAD
G U R J A R R/O VILLAGE POKHARNI, TAHSIL
TIMARNI (M.P.)
7. SMT. SHYAMWATI BAI D/O SHRI SHIV PRASAD
G U R J A R R/O VILLAGE POKHARNI, TAHSIL
TIMARNI (M.P.)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 3/23/2023
11:58:35 AM
2
.....RESPONDENTS
(BY SHRI AYUSH CHOUBEY - ADVOCATE FOR THE RESPONDENT -1 AND
SHRI GAJENDRA PARASHAR - PANEL LAWYER FOR THE STATE-
RESPONDENT 2)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the plaintiff challenging the
judgment and decree dated 27.09.2018 passed by 2nd Additional District Judge,
Harda, in civil appeal nos.35-A/18 and 37-A/18, reversing the judgment and
decree dated 07.12.2016 passed by 1st Additional Judge to the Court of 1st
Civil Judge Class-II, Harda, in civil suit no.47-A/2016, whereby learned trial
Court dismissed the suit as well as the counter claim and in appeal first appellate
Court has affirmed dismissal of suit but has decreed counter claim filed for
declaration of title and restoration of possession in respect of land Khasra
no.109 area 0.27 acre situated in Village Unda, Tahsil and District Harda.
2. Learned counsel for the appellant/plaintiff submits that although the
name of respondent/defendant 1 Smt. Imarti Bai is recorded in the revenue
papers but the plaintiff is in possession of land for last 30-35 years, therefore,
has acquired title by adverse possession. He further submits that although the
learned Courts below have dismissed the civil suit filed by the plaintiff but
without there being any proof of title of the respondent/defendant 1 Smt. Imarti
Bai, learned first appellate Court has decreed the counter claim filed for
declaration of title and restoration of possession, which in absence of proof of
title could not have been decreed. He also submits that the document of title
was filed in the shape of certified copy of sale deed in the name of Smt. Imarti
Bai but it is not legible and the same has not been proved by the defendant 1 in
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 3/23/2023
11:58:35 AM
accordance with law of Evidence. Accordingly, he prays for admission of the
second appeal.
3. Learned counsel appearing for the respondent 1 and learned counsel
for the respondent 2/State supports the impugned judgment and decree passed
by first appellate Court and prays for dismissal of the appeal.
4. Heard learned counsel for the parties and perused the record.
5. The plaintiff in para 2 of the plaint has stated that the disputed land is
recorded in the name of defendant 1 Smt. Imarti Bai but she is not in
possession for last 25 years and the same is in possession of the plaintiff.
Although, in the written statement to the counter claim, the plaintiff has denied
title of the defendant 1 but in his chief examination, the plaintiff Santosh (PW-1)
has admitted that the disputed land is recorded in the name of respondent 1
Smt. Imarti Bai and no where has denied title. The title of the defendant 1 is
proved also by the certified copy of the sale deed and Khasra of the year 2005-
06 (Ex.D/2 and Ex.D/3) as well as Kishta Bandi Khatoni of the year 2006-07
(Ex.P/5).
6. In view of the aforesaid and further in view of the fact that the
plaintiff is claiming adverse possession on the basis of long possession,
therefore, it cannot be said that the defendant 1 Smt. Imarti Bai is not owner/
bhoomiswami of the land. The learned first appellate Court also in para 31 has
taken into consideration the aforesaid aspect of the matter and has found the
defendant 1 Smt. Imarti Bai to be bhoomiswami of the land and entitled for
recovery of possession.
7. After perusal of the entire record, in the considered opinion of this
Court, the learned first appellate Court has not committed any illegality in
passing the decree of restoration of possession.
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 3/23/2023
11:58:35 AM
8. Resultantly, there being no involvement of substantial question of law
in the second appeal, the same fails and is hereby dismissed in limine under
Order 41 rule 11 CPC. However, no order as to the costs.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 3/23/2023
11:58:35 AM
