Kamal Babu vs The State Of Madhya Pradesh
2023 Latest Caselaw 14863 MP

                                                         1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                           ON THE 11 th OF SEPTEMBER, 2023
                                            SECOND APPEAL No. 1438 of 2015

                          BETWEEN:-
                          1.    KAMAL BABU S/O RAM BABU BANI, AGED ABOUT
                                49 YEARS, BAIDAN TEH. AND DISTT. SINGROULI
                                (MADHYA PRADESH)

                          2.    JITENDRA SINGH S/O SHYAM SINGH, AGED
                                ABOUT 38 YEARS, OCCUPATION: NONE VILLAGE
                                INDRA PRASTH NAGAR SIDHI TEHSIL AND DISTT.
                                SIDHI (MADHYA PRADESH)

                          3.    SURYA PRATAP SINGH S/O LAXMI PRATAP SINGH,
                                AGED ABOUT 42 YEARS, OCCUPATION: NONE
                                VILAGE INDRA PRASTH NAGAR SIDHI (MADHYA
                                PRADESH)

                                                                                  .....APPELLANTS
                          (BY SHRI MANISH KUMAR SONI - ADVOCATE )

                          AND
                          1.    THE STATE OF MADHYA PRADESH THR.
                                COLLECTOR SINGROULI (MADHYA PRADESH)

                          2.    TAHSILDAR    SINGRAULI SINGRAULI (MADHYA
                                PRADESH)

                                                                                 .....RESPONDENTS
                          (BY MS. VIBHA PATHAK - PANEL LAWYER)

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                          ORDER

This second appeal has been preferred by the plaintiffs/appellants challenging the judgment and decree dated 22.09.2015 passed by Additional

Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 9/13/2023 9:44:51 AM

Judge to the Court of First Additional District Judge, Baidhan, District Singrauli in civil appeal No.2-A/2015 affirming the judgment and decree dated 19.07.2012 passed by first Civil Judge Class-II, Baidhan District Singrauli in civil suit no.23-A/2010 whereby suit filed by the plaintiffs/appellants for declaration of title and permanent injunction, has been dismissed.

2. In short the facts are that, the plaintiffs had instituted a suit for declaration of title and permanent injunction in respect of land khasra no.199/2 area 4.84 hectare situated in village Baliyari, Tahsil and District Singrauli claiming the suit property belonging to Ram Babu, Anoop Singh and Ramgopal Singh and alleged that the plaintiff 1- Kamal Babu is son of Ram Babu and

other bhoomiswamis Anoop Singh and Ramgopal Singh had executed Will(s) in favour of the plaintiffs 2 and 3. With this background, the plaintiffs claimed themselves to be owner/bhoomiswami and in possession of the suit land.

3. The defendant appeared and filed written statement denying the plaint allegations and contended that the suit land belongs to the State Government and is rightly recorded in the name of State Government and prayed for dismissal of the suit.

4. On the basis of pleadings of the parties, learned trial Court framed issues and recorded evidence of the parties and upon due consideration of the same, dismissed the suit vide judgment and decree dated 19.07.2012, however, vide para 11, in absence of any rebuttal evidence, held that the ancestors of the plaintiffs namely Ram Babu, Anoop Singh and Ramgopal Singh are found to be bhoomiswami and in possession of the suit land. The judgment and decree of the trial Court has been affirmed by learned first appellate Court by the impugned judgment and decree by which an application under Order 41 Rule 27 CPC filed by the plaintiffs was also dismissed. Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 9/13/2023 9:44:51 AM

5. Learned counsel for the appellants/plaintiffs submits that the plailntiffs' ancestors Ram Babu, Anoop Singh and Ramgopal Singh were owner/bhoomiswami of the land and in possession and the same has been found proved by learned trial Court vide para 11, therefore, the plaintiff 1, who is successor of Ram Babu and plaintiffs 2 and 3 who are claiming rights through Will, ought to have been held to be owner/bhoomiswami and in possession of the land and the rights of the plaintiffs are also clear from the order dated 14.12.1993 passed by Naib Tehsildar (Ex.P/1). Learned counsel further submits that because in pursuance of the order dated 14.12.1993, name of plaintiffs' ancestors was not mutated, therefore, present suit was filed. With these submissions, he prays for admission of the second appeal.

6. Learned counsel for the respondents submits that neither the plaintiffs nor the plaintiffs' ancestors were owner/bhoomiswami or in possession of the suit land but the land in question belongs to the State Government. She submits that the suit has been filed in respect of the land khasra no.199/2 area 4.84 hectare, whereas in the basic khasra entry of the year 1956-57, the name of Ram Babu, Anoop Singh and Ramgopal Singh is recorded over khasra no.199 and except this entry (Ex.P/6), there is no other documentary evidence available on record to show the ownership of the plaintiffs' ancestors. Learned counsel further submits that khasra of the year

1956-57 (Ex.P/6) is not a certified copy issued under the seal and signature of Tahsildar but it is a copy given by Patwari which cannot be considered in evidence until and unless Patwari is examined to prove this entry and it has no presumption of correctness under Section 117 of the MPLR Code. With these submissions, learned counsel for the respondents prays for dismissal of the

Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 9/13/2023 9:44:51 AM

second appeal.

7. Heard learned counsel for the parties and perused the record.

8. In the present case, the plaintiffs have not been able even to plead the genealogical tree relating to the alleged owners of the land namely Ram Babu, Anoop Singh and Ramgopal Singh, in absence of which learned both the Courts below have recorded findings regarding suspicion arose on the case of the plaintiffs. Even in para 1 of the plaint, it was a case of the plaintiffs that Anoop Singh and Ramgopal Singh executed Will in favour of plaintiffs 2 and 3 and why these Wills were not produced before the trial Court, the plaintiffs have not been able to point out any justification. The alleged Wills have been placed on record by the appellants before the first appellate Court by filing application under Order 41 Rule 27 CPC.

9. Perusal of the application under Order 41 rule 27 CPC shows that the appellants have not even shown sufficient reason of not filing these Wills before the trial Court after taking due diligence and the application is also not supported by affidavit.

10. Only document available on record in respect of the entry of the name of ancestors of the plaintiffs is the khasra of year 1956-57 but it mentions the survey no.199 which is a copy given by Patwari and is not a certified copy. Apparently, the civil suit has been filed in respect of the land survey no.199/2 on the basis of document relating to survey no.199 and there is no clarification available on record regarding change of survey number. It is well settled that mere revenue entry neither confers title nor extinguishes title of the real owner.

11. In the present case, no document of title in respect of disputed survey no.199/2 has been placed on record but the plaintiffs have filed some Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 9/13/2023 9:44:51 AM

orders passed by the revenue officers/Tahsildar, which also cannot be made basis for declaring the plaintiffs to be owner of the suit property. Although, some findings have been recorded by learned courts below in favour of the plaintiffs' ancestors but ultimately, the suit has been dismissed in respect of survey no.199/2.

12. Upon perusal of the entire record, in my considered opinion, learned Courts below do not appear to have committed any illegality in dismissing the suit in respect of survey no.199/2.

13. Resultantly, the second appeal, in absence of any substantial question of law fails and is hereby dismissed.

14. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE anu

Signature Not Verified Signed by: ANUPRIYA SHARMA CHOUBEY Signing time: 9/13/2023 9:44:51 AM