Madhya Pradesh High Court
Gayaprasad (Dead) Through Lrs ... vs Kishorilal (Dead) Through Lrs (I) ... on 1 May, 2023
Author: Sunita Yadav
-( 1 )- F.A. No. 70 of 2002
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
FIRST APPEAL No. 70 of 2002
BETWEEN:-
1. GAYAPRASAD (DEAD) THROUGH LRS
SMT. VAIKUNTHI BAI, WD/O LATE SHRI GAYA
PRASAD
1(a)
RAMSHREE W/O LATE SHRI GAYA PRASAD
1(b)
CHANDOKHAR THASIL GOHAD, DIST. BHIND
(MADHYA PRADESH)
BRIJMOHAN SHARMA S/O LATE SHRI GAYA
1(c) PRASAD CHANDOKHAR THASIL GOHAD, DIST.
BHIND (MADHYA PRADESH)
RAMESHANKAR SHARMA S/O LATE SHRI GAYA
1(d). PRASAD CHANDOKHAR THASIL GOHAD, DIST.
BHIND (MADHYA PRADESH)
BRIJ KOSHORE SHARMA S/O LATE SHRI GAYA
1(e). PRASAD CHANDOKHAR THASIL GOHAD, DIST.
BHIND (MADHYA PRADESH)
OM PRAKASH SHARMA S/O LATE SHRI GAYA
1(f). PRASAD CHANDOKHAR THASIL GOHAD, DIST.
BHIND (MADHYA PRADESH)
RADHESHYAM SHARMA S/O LATE SHRI GAYA
1(g). PRASAD CHANDOKHAR THASIL GOHAD, DIST.
BHIND (MADHYA PRADESH)
1(h) SMT. MITHLESH W/O DSHRI RAMSEWAK R/O
GANDHI COLONY, DIST. MORENA (MADHYA
PRADESH)
SMT. KISHORI DEVI W/O SHRI OM PRAKASH
1(i) R/O VILL PATLESHWAR THASIL ARON DIST.
GUNA (MADHYA PRADESH)
SMT. MIRABAI W/O KEDAR PRASAD VILL.
1(j). BABRIPURA THASIL AMBAH DIST. MORENA
(MADHYA PRADESH)
Signature Not Verified
1(k). SMT. SAVITRI W/O SHRI RAJESH, R/O VILL.
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 2 )- F.A. No. 70 of 2002
SIRSODA THASIL GOHAD , DIST. BHIND
(MADHYA PRADESH)
SARNAM SINGH S/O SHRI GANESHRAM, AGED
ABOUT 66 YEARS, VILL. CHAPRA AT PRE.
2.
CHOUKHATTA GOHAD, DIST. BHIND (MADHYA
PRADESH)
NARESH KUMAR SHARMA S/O SHRI MADHO
PRASAD SHARMA, AGED ABOUT 39 YEARS,
3. OCCUPATION: AGRICULTURIST VILL.
BHAGWASA PARGANA GOHAD, DIST. BHIND
(MADHYA PRADESH)
.....APPELLANTS
(SHRI HARISH DIXIT-LEARNED COUNSEL FOR THE APPELLANTS) .
AND
KISHORILAL (DEAD) THROUGH LRS.
1. 1(i) MAYA DEVI Wd/O KISHORILAL, AGED ABOUT
70 YEARS, SADAR BAJAR GOHAD, DIST. BHIND
(MADHYA PRADESH)
DARSHANLAL S/O SHRI KISHORILAL, AGED
1(ii)
ABOUT 46 YEARS, CHOUKHATTA GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
DWARIKA PRASAD S/O SHRI KISHORILAL,
1(iii)
AGED ABOUT 38 YEARS, CHOUKHATTA GOHAD,
.
DIST. BHIND (MADHYA PRADESH)
SHYAM PRASAD S/O SHRI KISHORILAL, AGED
1(iv)
ABOUT 34 YEARS, CHOUKHATTA GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
NARMADA DEVI W/O SHRI JAYPRAKASH GARG
1(v)
D/O KISHORILAL SADAR BAZAR GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
KRISHNA DEVI W/O SHRI SANTOSH MITTAL
1(vi) D/O KISHORILAL BHAGWATI FURNITURE PANI
. KI TANKI KAMLA NAGAR., AGRA (UTTAR
PRADESH)
JAGDISH S/O SHRI MAYACHANDRA, AGED ABOUT
2. 48 YEARS, CHOUKHATTA GOHAD, DIST. BHIND
(MADHYA PRADESH)
3. MANTILAL (DEAD) THROUGH LRS.
Signature Not Verified
Signed by: SANJAY 3(i) SHANTI DEVI W/O MANTILAL, AGED ABOUT
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 3 )- F.A. No. 70 of 2002
65 YEARS, CHOUKHATTA GOHAD, DIST. BHIND
(MADHYA PRADESH)
MOHANLAL S/O SHRI MANTILAL, AGED ABOUT
3(ii)
53 YEARS, CHOUKHATTA GOHAD, DIST. BHIND
.
(MADHYA PRADESH)
KAILASH CHANDRA S/O SHRI MANTILAL,
3(iii)
AGED ABOUT 44 YEARS, CHOUKHATTA
.
GOHAD, DIST. BHIND (MADHYA PRADESH)
RAMPRAKASH S/O SHRI MANTILAL, AGED
3(iv)
ABOUT 38 YEARS, CHOUKHATTA GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
RAKESH CHANDRA S/O SHRI MANTILAL, AGED
3(v)
ABOUT 33 YEARS, CHOUKHATTA GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
PRADEEP KUMAR S/O SHRI MANTILAL, AGED
3(vi)
ABOUT 33 YEARS, CHOUKHATTA GOHAD, DIST.
.
BHIND (MADHYA PRADESH)
SHASHI DEVI W/O SHRI MAHESH CHANDRA
3(vii) MODY D/O MANTILAL MODY HOUSE
. SIKARWARI BAZAR, DIST. MORENA (MADHYA
PRADESH)
SUMAN DEVI W/O SHRI NARESH CHANDRA
3(viii) D/O MANTILAL KILA GATE GALLA MANDIR
. LASHKAR, DIST. GWALIOR (MADHYA
PRADESH)
STATE OF MADHYA PRADESH THROUGH
4. COLLECTOR, DISTRICT BHIND (MADHYA
PRADESH)
A.K. SHIVHARE SDO GOHAD, DISTRICT BHIND
5.
(MADHYA PRADESH)
TEHSILDAR GOHAD, DISTRICT BHIND (MADHYA
6.
PRADESH)
SUPERINTENDENT OF POLICE POLICE
7. HEADQUARTERS, DISTRICT BHIND (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SANTOSH AGRAWAL - ADVOCATE FOR THE RESPONDENTS &
SHRI R.K.AWASTHI - GOVERNMENT ADVOCATE FOR
RESPONDENTS/STATE)
Reserved on : 18.04.2023
-------------------------------------------------------------------------------------
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 4 )- F.A. No. 70 of 2002
Whether approved for reporting :
This appeal coming on for pronouncement of judgment on this
day, the court passed the following:
JUDGMENT
(Passed on 01/05/2023)
1. This first appeal under Section 96 of Civil Procedure
Code (for brevity, CPC) has been filed by the appellants
against the common judgment and decree passed in a
consolidated manner on 06/02/2022 by Additional District
Judge, Gohad, District Bhind in Civil Suit No 10-A/1992
(Gayaparasad and Another vs Kishorilal and Others) and Civil
Suit No. 10-A/1994 (Jagdish Prasad vs. State of M.P. &
Others.).
2. The necessary facts for disposal of the present appeal in
short are that the land bearing survey No. 25/1 admeasuring
area 18 Biswa was situated at Gohad Choukhatta, Gohad,
District Bhind (M.P.). Out of the said total land of 18 Biswa,
3 Biswa of the said land was purchased by the plaintiffs vide
registered sale deed dated 09/04/1980 from its previous
Signature Not Bhumiswami
Verified in possession namely Shyamdas S/o Shri
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 5 )- F.A. No. 70 of 2002
Haridas. The plaintiffs obtained their possession at the time
of purchase. The dimensions of the aforesaid disputed land
are 85' east-west and 45' north-south. The boundaries of the
disputed land are shown in the plaint map.
3. The plaintiffs/appellants instituted civil suit No. 10A/92
against the defendants/respondents No. 1 to 4 for declaration
of title permanent injunction and damages mainly with the
following averments :-
(a) The land comprising in Survey No. 25/1 situated at
village Keeratpura, Pargana Gohad, District Bhind was
possessed by Shyamdas as a Bhumiswami. Out of this land,
the disputed land was sold by him to the plaintiffs vide
registered sale deed dated 9-4-1980 and its possession was
also delivered to the plaintiffs at the time of its purchase. The
plaintiffs thereafter have been continuously in possession of
the disputed land since the date of purchase in the capacity of
a Bhumiswami. Pursuant to Bandobast, the survey number of
the disputed land is changed from 25/1 to survey number 3.
Further in pursuance of the Bandobast, a patta was also
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 6 )- F.A. No. 70 of 2002
granted to the plaintiffs in respect of the disputed land. The
plaintiffs, thereafter, got the disputed land diverted vide order
dated 18-6-90 passed by the then SDO, Gohad. Thereafter, the
plaintiffs made construction maintaining a passage 3' in width
and 75' in length. However, the passage was and is owned and
possessed by the plaintiffs exclusively.
(b) Adjacent to the disputed property in south direction,
there is a house property occupied by the defendants. The
plaintiffs submitted an application for demarcation of the
disputed property. The demarcation was made in case No.
18/89-90 A/12 of Tehsil Gohad and the defendants were also
apprised of the same. The defendant/respondent No. 2
submitted objections which were dismissed on 29-6-90 and an
appeal preferred against it was also dismissed by the SDO
Gohad.
(c) The defendants/respondents No. 1 to 4 had an eye over
this property, but the plaintiffs refused to sell the same to
them, with a malafide intention of grabing the disputed
property, the defendant opened a door towards the plaintiffs
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 7 )- F.A. No. 70 of 2002
passage in an illegal, unauthorized and forcible manner and
have started using the passage. The ingress and egress of the
defendant's property is from the Gwalior Bhind Road i.e. from
south direction. The plaintiffs are entitled to seek a restraint
order against them in the matter.
(d) Similarly, the defendants/respondents No. 1 to 4 have
caused damage in 09/04/1991 in the midnight to the stone
slabs of the constructed room of the plaintiffs which was
immediately reported to the police station Gohad and a
criminal case against them was registered under section 336,
147, 506-B and 294 of PC. They further did not allow the
plaintiffs to make the repairs and made an abortive attempt to
dispossess the plaintiffs from the disputed property without
any authority of law.
(e) During pendency of the suit, the defendants/
respondents No. 1 to 4 constructed 2 RCC pillars in the
passage and covered it by R CC slabs. They have further
covered a portion of the passage in the same manner on the
second and third floor also. The plaintiffs are entitled to the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 8 )- F.A. No. 70 of 2002
removal of the over hanging encroachment.
4. Per contra, the defendants /respondents No. 1 to 3 have
filed their written statement and counter claim denying the
averments made in the plaint by the plaintiffs. It is submitted
that the land bearing survey No. 2/1 was not owned and
possessed by Shyamlal as Bhumiswami, therefore, the sale
deal dated 09/04/1990 in favour of the plaintiffs/appellants is
illegal and incompetent. It is further submitted that the
disputed property falls in survey No. 25/2 and not in survey
No. 25/1. The disputed land was not possessed by Shyamdas
and its possession was not delivered to the plaintiff. Thus, the
plaintiffs have neither title nor possession over the disputed
land. It is further submitted that the land bearing survey No.
25/2 is 10 biswa in area and is owned by and possessed by the
respondents No. 1 to 3. Their house is also constructed on a
part of it. Adjacent to it, there is a piece of land admeasuring
44' x 80' and a temporary injunction was issued in their
favour against the State of M.P. It is further submitted that
the plaintiffs have constructed a well and also a house on the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 9 )- F.A. No. 70 of 2002
piece of land admeasuring 44' x 80' in contravention of the
injunction order and the defendants have initiated
proceedings for breach of injunction. It is further submitted
that the passage belongs to the defendants which they have
been using for their house. It is further submitted that the
demarcation and other proceeding of diversion etc. are also
denied factually and also for want of competence. Similarly,
the alleged RCC construction is also valid. The defendants by
way of counter claim prayed that the sale deed dated 9-4-1980
executed by Shyamdas in favour of the plaintiffs be declared
ineffective for want of title and the plaintiffs be restrained
from interfering into the possession and usage of the
defendants over the disputed land.
5. The plaintiff/appellants submitted their written
statement to the counter claim and prayed for the dismissal of
the counter claim.
6. The defendant/respondent No. 2 had also instituted civil
suit No. 10/94 in the court of Civil Judge, Class-I, Gohad
District Bhind against the respondent No. 4 to 7, wherein, he
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 10 )- F.A. No. 70 of 2002
prayed for declaration that the disputed land comprising in
survey no. 25/2 in area 10 biswa may be declared to be of his
ownership and possession and respondent s No. 4 to 7 may be
restrained from causing any interference into his possession.
7. The state of M.P. submitted a written statement and
denied the claim of respondent No. 2 in civil suit No. 10/94.
It was stated that the survey No. 25/2 is a Government land.
It is neither owned nor possessed by Jagdish (plaintiff of civil
suit No. 10A/94 and the present respondent No. 2). It was
further stated by the State of M.P. that 15 biswa of survey No.
25/2 is occupied by the police station Gohad and the
remaining area of 15' x 80' of survey No. 25/2 has been
encroached upon by Jagdish illegally.
8. The civil suit No. 10-A/92 and 10-A/94 were
consolidated by virtue of order dated 4-8-99 passed by this
Court in Civil Revision No. 578/98. After consolidation,
learned Ist Additional District Judge , Gohad, District Bhind
has passed impugned common judgment and decree dated 6-2-
2002 holding that the plaintiff's predecessor-in-title (namely
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 11 )- F.A. No. 70 of 2002
Shyamdas) was a Bhumiswami in possession of the disputed
property. The learned trial judge, further held that the
plaintiffs are entitled for declaration of title, however, they
are not in possession over the suit land and defendants are in
possession over the land in dispute. The declaration of title
has been made in favour of the plaintiffs denying the
injunction for want of possession. Civil Suit No. 10A/94
instituted by Jagdish was dismissed. However, his counter
claim has been decreed in respect of injunction. Aggrieved by
the same, the plaintiffs/appellants have filed the instant
appeal.
9. The learned counsel for the appellants argued that the
impugned judgment and decree is perverse, illegal and against
the settled principle of law. The learned trial court has
ignored the evidence adduced by the plaintiffs/appellant and
disbelieved the possession of plaintiffs over the suit land.
The evidence has not been properly appreciated. Since there
was a dispute over the plaint map, therefore, learned trial
court should have appointed the local commissioner and call
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 12 )- F.A. No. 70 of 2002
for the report over the issue of possession.
10. On the other hand, learned counsel for the respondent
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.
11. The learned counsel for appellants on 08.02.18 sought
time to verify whether there is another appeal in Civil Suit
No.10A/1994 (Jagdish Prasad Vs State of MP). At the time of
final arguments in this appeal learned counsel for appellants
submitted that as informed by his party apart from this appeal
no other appeal is pending against the judgement passed in
Civil Suit No.10A/1994 (Jagdish Prasad Vs State of MP).
12. Heard and perused the record.
13. The appellant/plaintiff Gayaprasad has examined
himself as PW-1 and Ramnaresh, Omprakash, Ramesh Singh
Gaur & Sarnaam Singh Patwari to prove his case and also
produced documentary evidence i.e. copies of Khasra
Panchshalla (Ex. P/4 to P/6).
14. On the other hand, respondent/defendant Jagdish Prasad
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 13 )- F.A. No. 70 of 2002
has examined himself as well as witnesses Haider Singh,
Chottelal & Sarnaam Singh.
15. As per the statement of plaintiff Gayaprasad, survey No.
25/1 is situated at Khiratpura, in which, 3 biswa of land was
purchased by him in Sarnaam's as well as his own name.
Plaintiff's witness Ramnaresh who is the attesting witness of
sale deed has supported the statement of plaintiff. The
document Ex. P/4 Khasra Panchshalla reveals that name of
Shyam Das, Kartar Singh, Gulab Singh, Chotte, Hardayal
Gayaprasad, Sarnaam Prasad are recorded in column No. 3.
Similarly, in Ex. P/5 Khasra Samvat 2031 to 2034, the names
of the above persons have been recorded in column No. 3.
Other Khasra Panchshalla also have the same entries.
16. The documents further show that in Ex. P/11, which is
Khasra Samvat 2055 to 2056, the names of the plaintiffs are
recorded as owner (Bhumiswami) in column No. 3. The
document Ex. P/14 reveals that the deceased Shyam Das has
filed a civil suit in respect to survey No. 25/2 against the
defendant Jagdish Prasad and his brother as well as
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 14 )- F.A. No. 70 of 2002
Government of M.P. The said Civil Suit was filed for
declaration of the ownership as well as permanent injunction.
Ex. D-14 reveals that the deceased Shyam Das pleaded in
civil suit that in the part of survey No. 25/2, the defendant
Mayachand has encroached upon the land and had constructed
his shop and house.
17. A joint perusal of the registered sale deed Ex. P/11 and
plant map annexed with the plaint in this civil suit reveal that
the boundaries shown in Ex. P/11 are different from the
boundaries of disputed land in the plaint map. The record
reveals that the present civil suit was filed on 16/05/1991
along with the plaint map. The plaint map was amended in the
year 1997. The appellant /plaintiff Gayaprasad during his
cross examination at para 5 has specifically mentioned that in
sale deed Ex. P/11 boundaries are wrongly mentioned and he
did not pay attentions to this factum until he filed this civil
suit. In view of the above fact that the boundaries in the sale
deed by which the plaintiffs claimed their title does not match
with the boundaries of disputed land, it is not proved that the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 15 )- F.A. No. 70 of 2002
disputed land was purchased by the appellants/plaintiffs vide
registered sale deed Ex. P/11. Section 92 of the Indian Evidence
Act bars giving of oral evidence on a written document except to prove
that the document reflects a sham transaction. Therefore, the oral
evidence adduced by plaintiff that the boundaries in the sale deed
Exhibit P-1 are wrongly mentioned and actual boundaries are different
from those mentioned in sale deed, is not acceptable. Since it is not
proved that the land purchased by the plaintiff is the disputed
land, therefore, the statement of the appellant/plaintiff
Gayaprasad is not acceptable that the defendant has
encroached upon the disputed land because the land on which
he has claimed his possession had not been sold to him as per
sale deed Exhibit P-1.
18. The appellants /plaintiffs have examined the Revenue
Inspector Ramesh Singh Gaur to prove their case. However,
this witness has failed to explain the boundaries and location
of the survey No. 25/1, therefore, the evidence of this witness
does not support the case of the appellants/plaintiffs.
19. The appellants /plaintiffs have pleaded as well as stated
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 16 )- F.A. No. 70 of 2002
that they have purchased the land admeasuring 3 biswa and
they have got possession over the entire land. In these
situation also the case of plaintiff is not found to be proved
because they have covered the entire area which was
purchased by them from Baba Shyam Das.
20. Learned counsel for the appellants /plaintiffs has placed
reliance on the judgments delivered by the Apex Court in the
cases of Shreepat vs. Rajendra Prasad and Ors. reported
in (2000) 6 Supreme 389, Haryana Waqf Board vs. Shanti
Sarup and Ors. reported in 2008 (8) SCC 671 as well as the
judgment delivered by this Court in the cases of Durga
Prasad vs. Parveen Foujdar and Ors. reported in 1975 JLJ
340, Suresh Kumar vs. Town Improvement Trust, Bhopal
reported in 1975 JLJ 468, Jaswant S/o Kashi Ram Yadav
vs. Deen Dayal reported in 2011 (2) MPLJ 576 &
Shailendra vs. Rakesh vide order dated 27/08/2018 passed
in S.A. No. 641/2012 and argued that in this case the issue of
encroachment and identity of suit land is involved, therefore,
local commissioner should have been appointed by the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
-( 17 )- F.A. No. 70 of 2002
learned trial court. However,the facts and circumstances of
the above mentioned cases are different from this case.
Therefore, they do not help the appellants. In this case the
boundaries mentioned in the sale deed which is the source of
title is different from the plaint map and it is well settled that
for collection of the evidence Commissioner cannot be
appointed as held by this court in the case of Dharam Singh
and Another vs. Deenanath and Ors. reported in 2019 (4)
MPLJ 32.
21. In view of the above discussions, it is apparent that the
plaintiffs have failed to prove their case. Therefore, this court
does not find any perversity or illegality in the impugned
judgment and decree.
22. Consequently, this appeal sans merits and is hereby
dismissed.
(SUNITA YADAV)
JUDGE
Durgekar*
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 02-05-2023
06:18:53 PM
