Madhya Pradesh High Court
Rameshwar Sen vs Shekhar Golandaj on 29 November, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 29 th OF NOVEMBER, 2023
SECOND APPEAL No. 1120 of 2022
BETWEEN:-
RAMESHWAR SEN S/O LATE BADRI PRASAD SEN, AGED
ABOUT 58 YEARS, OCCUPATION: FARMER, R/O
VILLAGE CHILA CHOUN KALAN, TEHSIL AND DISTRICT
NARSHINGHPUR, MADHYA PRADESH.
.....APPELLANT
(BY SHRI DHANESH KANT TIWARI - ADVOCATE)
AND
1. SHEKHAR GOLANDAJ S/O LATE SOBRAN
GOLANDAJ, AGED ABOUT 36 YEARS, VILLAGE
CHILA CHOUN KALAN TEHSIL AND DISTRICT
NARSHINGHPUR M.P.
2. HEMANT GOLANDAJ S/O LATE SOBRAN
GOLANDAJ, AGED ABOUT 34 YEARS, R/O VILLAGE
CHILA CHOUN KALAN, TEHSILA ND DISTRICT
NARSINGHPUR (MADHYA PRADESH)
3. PURAN GOLANDAJ S/O LATE SOBRAN
GOLANDAJ, AGED ABOUT 32 YEARS, R/O VILLAGE
CHILA CHOUN KALAN, TEHSIL AND DISTRICT
NARSINGHPUR (MADHYA PRADESH)
4. MANKUNWAR GOLANDAJ W/O LATE SOBRAN
GOLANDAJ, AGED ABOUT 62 YEARS, R/O VILLAGE
CHILA CHOUN KALAN, TEHSIL AND DISTRICT
NARSINGHPUR (MADHYA PRADESH)
5. THE STATE OF M.P THROUGH THE COLLECTOR,
NARSINGHPUR DISTRICT NARSINGHPUR (M.P.)
.....RESPONDENTS
(BY MS. SARITA TIWARI - PANEL LAWYER FOR THE
RESPONDENT/STATE )
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 11/30/2023
10:23:29 AM
2
This appeal coming on for admission, this day, th e court passed the
following:
ORDER
This Second Appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dated 19.01.2022, passed by Principal
District Judge, Narsinghpur, in RCA No.375/2021 reversing the judgment and
decree dated 12.10.2021 passed by V Civil Judge Class II, Narsinghpur in
RCSA No.45/2017, whereby trial Court decreed the appellant/plaintiff's suit for
declaration of title, permanent injunction and for restoration of possession after
removal of construction allegedly raised by defendants 1-4 over an area 240 sq.
ft. of Khasra No.149/8 area 0.037 hectare, which in civil appeal filed by the
defendants 1-4 has been dismissed.
2. Learned counsel for the appellant/plaintiff submits that the plaintiff is
owner/bhumiswami of the disputed land area 240 sq. ft. which is a part of
Khasra No.149/8 area 0.037 hectare and was purchased by the plaintiff vide
registered sale deed dated 18.06.1965 (Ex.P-1) and is so recorded in the
revenue papers. Learned counsel submits that without having any right the
defendants on 05.06.2017 started raising construction on the land, hence the
suit was filed and as the plaintiff is owner of the suit land therefore, he is entitled
for decree of possession.
3. Learned counsel further submits that trial Court after due consideration
of the material available on record found the plaintiff to be owner but the first
appellate Court has committed illegality in dismissing the suit on the basis of
oral evidence adduced by the defendants. With the aforesaid submissions, he
prays for admission of the second appeal.
4. Heard learned counsel for the plaintiff and perused the record.
5. The plaintiff has come with the case that the land of Khasra No.149/1
area 0.037 hectare was purchased by plaintiff's father Badri Prasad Sen and
received possession and in the revenue record, name of Badri Prasad Sen was
recorded as Bhumiswami over Khasra No.149/8 area 0.037 hectare but the
defendants on 05.06.2017, had started raising construction over the land in
question without any right.
6. Perusal of the record shows that by way of sale deed dated 18.06.1965
(Ex.P-1), the land bearing Khasra No.149/1 area 0.09 acre was purchased by
Badri Prasad Sen and there is no document on record to show that it was
changed into Khasra No.149/8.
7. Taking into consideration legal aspect of mere entry of the name in the
revenue record with respect to land bearing Khasra No.149/8, Courts below
have held that the plaintiff is not owner/bhumiswami of the land in question.
Although, despite this finding, trial Court decreed the suit for restoration of
possession but taking into consideration the aforesaid aspect of the matter
relating to issue No.2 decided by trial Court, first appellate Court has dismissed
the suit.
8. First appellate Court has also considered plaintiff's case of raising
construction by the defendants over the land in question in the year 2017 and on
the basis of admissions of the plaintiff himself, held that the same is not proved
because the defendants are in possession of the land for more than 50 years and
they have raised construction on an area which was already in their possession
in the shape of kachcha construction and consequently dismissed the suit.
9. After perusal of the entire record, this Court does not find any illegality
in the judgment and decree passed by the first appellate Court.
10. As such, in absence of any substantial question of law, this Second
Appeal fails and is hereby dismissed.
11. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
veni
