Madhya Pradesh High Court
Smt. Narbada Bai W/O Rameshwar Prasad ... vs Mahadev Ji Mandir Loknyaas ... on 16 February, 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
SECOND APPEAL No. 1309 of 2021
BETWEEN:-
1. SMT. NARBADA BAI W/O RAMESHWAR
PRASAD DUBEY (DEAD) THR. LRS
MURLIDHAR DUBEY S/O SHRI RAMESHWAR
PRASAD DUBEY, AGED ABOUT 52 YEARS, R/O
SUBHASH NAGAR GOHALPUR BASTI NO. 1
TEHSIL AND DISTT. JABALPUR M.P.
(MADHYA PRADESH)
a. MURLIDHAR DUBEY S/O SHRI
RAMESHWAR PRASAD DUBEY, AGED ABOUT
52 YEARS, R/O SUBHASH NAGAR GOHALPUR
BASTI NO.1, TEHSIL AND DISTRICT
JABALPUR.
b. MRADUL DUBEY S/O RAMESH PRASDA
DUBEY, AGED ABOUT 44 YEARS, VILLAGE
HIRAPUR BANDHA NEAR BHEDAGHAT
TEHSIL PATAN (MADHYA PRADESH)
2. LAXMI BAI W/O CHANDRA SHEKHAR
TIWARI D/O VIDHYASHANKER TIWARI,
AGED ABOUT 51 YEARS, OCCUPATION:
THROUGH POWER OF ATTORNEY HOLDER
RAMESH SHUKLA S/O SHRI NARAYAN
PRASAD DR.RAJENDRA PRASAD WARD
UPRAINGANJ DIXITPURA (MADHYA
PRADESH)
3. SMT. ANITA BAI W/O RAMESH
CHANDRA SHUKLA, AGED ABOUT 46 YEARS,
OCCUPATION: THROUGH POWER OF
ATTORNEY HOLDER RAMESH SHUKLA S/O
2
SHRI NARAYAN PRASAD DR.RAJENDRA PRASAD
WARD UPRAINGANJ DIXITPURA (MADHYA
PRADESH)
.....APPELLANTS
( B Y S H R I A M I T V E R M A - A D V O C AT E F O R A P P E L L A N T S )
AND
MAHADEV JI MANDIR LOKNYAAS
BANDHAIYAPURA MILONIGANJ JABALPUR THR.
1. SHRI SUDAMA PRAJAPATI S/O LATE
MAHESH PRASAD H. NO. 323 SHANTI NAGAR
DAMOHNAKA JABALPUR M.P. (MADHYA
PRADESH)
2. BHIMMA ALIAS BHIMA PATEL (TRUSTEE)
S/O LATE NANDLAL, AGED ABOUT 80 YEARS,
BANDHEYA MOHOLLA SHANTINAGAR
DAMOHNAKA (MADHYA PRADESH)
3. SHANKARLAL ALIAS SHANKAR PRAJAPATI
(TRUSTEE) S/O SONELAL PRAJAPATI IN FRONT
OF CHETRIYA BUS STAND DAMOHNAKA
(MADHYA PRADESH)
4. PANNALAL PATEL S/O LATE BADKE
(TRUSTEE) BEHIND J.D.A. COMPLEX
SHANTINAGAR (MADHYA PRADESH)
5. STATE OF MADHYA PRADESH THROUGH
COLLECTOR DIST.JABALPUR (MADHYA
PRADESH)
6. NAIB TAHSILDAR NAZUL JABALPUR
DIST.JABALPUR (MADHYA PRADESH)
7. MANORAM SHUKLA W/O ANNAT KUMAR
SHUKLA D/O RAMESHWAR PRASAD DUBEY,
AGED ABOUT 57 YEARS, NEAR SANJAY GANDHI
MARKET BALDEVBAG MAHATMA GANDHI WARD
(MADHYA PRADESH)
3
8. RAMESHWAR PRASAD DUBEY S/O LATE
GOKUL PRASAD, AGED ABOUT 80 YEARS,
VILLAGE HIRAPUR BANDHA NEAR BHEDAGHAT
TEHSIL PATAN (MADHYA PRADESH)
.....RESPONDENTS
( S M T. V I B H A PA T H A K - PA N E L L AW Y E R F O R S T A T E . )
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Reserved on: 11.01.2024
Pronouned on: 16.02.2024
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This Second Appeal having been heard on admission and reserved for
order, coming on for pronouncement on this day, Justice Gajendra Singh
pronounced the following:
ORDER
This Second Appeal under Section 100 of CPC is preferred challenging the
judgment and decree dated 22.01.2021 in RCA No.58-A/2015 by IIIrd Additional
District Judge, Jabalpur, District Jabalpur arising out of judgment and decree
dated 29.07.2013 in RCSA No.138A/2008 by 13th Civil Judge, Class-I, Jabalpur,
District-Jabalpur.
2. According to averments in plaint, facts in brief are that disputed property
bearing khasra No.153 rakba 3.80 acres, khasra No.104 rakba 0.97, khasra
No.119 rakba 0.67 acres and khasra No.120 rakba 0.58 acres total two acres.
Patwari Halka No.24/21 Bandobast No.601 is situated in Mauja Gohalpur,
Jabalpur. Plaintiff is a registered Public Trust bearing registration No.278. Shri
Sudama Prasad Prajapati/respondent No.1 is the care taker. Shri Chetram Patel,
Bhimma alias Bhima Patel/respondent No.2, Shankarlal Prajapati alias Shankar
Prajapati/respondent No.3 and Pannalal Patel/respondent No.4 were its trustee
and the suit was filed through them. It was averred that the trust was in actual
possession of the disputed property since 1959. Defendant Nos.1 to 3/appellants
had filed an application for correction of revenue record under Section 115 of the
M.P. Land Revenue Code, 1959 before defendant No.5 in regard to khasra
No.153 rakba 3.80 acres Mauja Gohalpur, Jabalpur. The above land is recorded in
the name of Shri Mahadev Ji Mandir Trust, the said name should be deleted and
the name of the applicants be recorded as Bhumi-Swami and in possession.
Defendant Nos.1 to 3 subsequently filed an amendment application praying for
correction of revenue records of disputed property bearing khasra No.104 rakba
No.0.97, khasra No.119 rakba No.0.67, khasra No.120 rakba No.0.58 also.
3. It was also averred that Shri Mahadevji Mandir Trust had filed a suit for
possession before learned Civil Judge Class-II, Jabalpur bearing Regular Civil
Suit No.255/29 (Shri Mahadevji Mandir Trust vs. Baldev Prasad and others). The
trial Court passed the judgment and decree in favour of Mahadevji Mandir Trust
on 02.09.1929. Feeling aggrieved by the judgment and decree, the defendants
therein filed a First Appeal before the District Court, Jabalpur. Vide judgment
dated 09.02.1931, the appeal filed by the defendants was dismissed. Defendants
thereafter filed a Second Appeal before the Judicial Commissioner Central
Province. Vide judgment dated 06.09.1934 the appeal was dismissed. In view of
these judgments, the plaintiff trust was in possession of the disputed property and
their names were recorded in official records. It was the further case of the
plaintiff that the application filed by defendant Nos.1 to 3 under Section 115 of
the M.P. Land Revenue Code, 1959 regarding disputed property was not
maintainable because under the said section the correction in khasra and other
revenue records can be done by senior officer's and that correction can be done
by Tehsildar on the fact coming to his knowledge under Section 115 of the M.P.
Land Revenue Code, 1959. The parties have no right to file an application. If any
person is aggrieved by the entries in revenue record maintained under Section 115
of the M.P. Land Revenue he can file an application for correction of record
within one year of such entries under Section 116 of the M.P. Land Revenue
Code, 1959 to Tehsildar. The defendant Nos.1 to 3 did not file any such
application.
4. It was further averred that in the name of plaintiff, Public Trust is recorded
as owner and Bhumi Swami of the disputed land. Before 02.10.1959, the plaintiff
Shri Mahadev Ji Mandir Trust through their care taker and trustees had been in
continuous actual possession of the disputed land. It is averred in the plaint that
the cause of action accrued to the plaintiff on 09.09.2004 within the pecuniary
and territorial jurisdiction of the Court when the defendant Nos.1 to 3 filed an
application under Section 115 of the M.P. Land Revenue Code, 1959 before
defendant No.5 and when they started telling that they are the owner of the
disputed property and Bhumi Swami and in possession. Actually the defendant
Nos.1 to 3 are not the owner and Bhumi Swami of the disputed land. They are not
in possession of disputed land. They were never in possession of the disputed
property. It was further averred that the defendants intend to take forcible
possession of the disputed property and want to legally dispossess the plaintiff
public trust from the disputed property.
5. Defendant Nos.1 to 3 filed written statements inter alia denying all the
adverse averments of the plaint. It was averred in the written statement that late
Smt. Surjan Bai was the owner and in possession of the suit lands and plaintiff
trust was never the owner nor in possession of the suit lands. The name of the
plaintiff's in the revenue records has been entered illegally and without having
legal entity. The answering defendants never filed any suit or case against the
plaintiff trust. The Tehsildar (Nazul) Jabalpur has dismissed the application for
mutation on 21.05.2007 being not maintainable against which an appeal was
pending before the Nazul Officer Jabalpur for adjudication and averments made
against the answering defendants were illegal, vexatious and baseless. No cause
of action arises for filing the suit against the defendants and it is barred by
limitation. Plaintiffs were not entitled to get any relief against the defendants. The
Civil suit was barred against the proceedings of the revenue Court. The plaintiffs
have not properly valued the suit and undervalued. Plaintiffs have not filed any
titled deed in their favour. The Suit properties/lands were inherited by answering
defendant Nos.1 to 3 before the Revenue Court is absolutely within the
jurisdiction of Revenue Courts and the Civil Court had no jurisdiction to hear the
case under Section 115 of the M.P. Land Revenue Code, 1959. The lands were
recorded in the name of Smt. Surjan Bai, who is not related with plaintiffs.
Plaintiffs got their name mutated in the revenue record in collusion with the
revenue authorities by playing fraud upon them.
6. Trial Court framed the five issues and recorded the evidence of Shankar Lal
Prajapati (plaintiff no.4) as PW-1 and admitted documents Ex.P-1 to P-23 on
behalf of plaintiffs. Defendants/appellants examined Ramesh Shukla as DW-1
and Anita Shukla as DW-2 and produced the Ex.D-1 to D-11.
7. Appreciating the oral testimony and documentary evidence of both the
parties, Trial Court found proved issue no.1 to 4 in favour of plaintiffs. The
burden to prove the issue no.5 was on defendant and Trial Court did not found
proved issue no.5 and concluded in para-49 of the judgment that plaintiff-Trust is
in possession of the disputed land as the owner of disputed property and also
concluded in para-50 that they are entitled for permanent injunctions against
defendant no.1 to 3 and decreed the suit in favour of plaintiff-Trust accordingly.
8. First Appellate Court also affirmed the findings of the Trial Court vide
judgment dated 22.01.2021 in RCA No.7100058/2015. First Appellate Court also
dismissed the application under Order 41 Rule 27 of CPC filed by appellants.
9. Feeling aggrieved with the concurrent findings of both the Courts below,
this appeal has been preferred proposing the following substantial questions of
law :-
i. Whether the Lower Appellate Court without properly
appreciating facts on record committed material error of
law by holding that in the previous suit the courts have
held that plaintiff's were Bhoomiswami and Owner of the
disputed property?
ii. Whether the Appellate Court committed material error
of the law is dismissing the application under Order 41
Rule 27 of Civil Procedure Code?
iii. Whether the Appellate Court committed material error
of the law by neither appreciating nor recording any
finding regarding the revenue records proved by the
defendant's?
iv. Whether the Appellate Court committed material error
of the law by holding that the plaintiffs are the
bhoomiswami/owner of the suit lands only on the basis of
revenue records?
v. Whether in the context of facts and circumstances of
the case plaintiffs substantiated their claim for title as it
was not enough to only allege that they were the owner of
the suit land ?
vi. Whether the finding of the Lower Appellate Court
being inherently bad and also vitiated and not binding in
the Second Appeal as it has been reached by not taking
into consideration the facts which have a vital bearing on
it?
vii. Whether a core issue erroneously decided by the
Court below would result in substantial question of law?
10. Heard on admission.
11. Perused the records.
12. Argument on behalf of appellants/defendants no.1 to 3 is based on the
strength of Ex.-D2, D-3, D-4 and D-5 that appellants successfully proved that
initially disputed land were recorded in the name of Smt. Surjan Bai and plaintiffs
have to discharge the heavy burden to establish and prove by cogent evidence the
circumstances by which subsequently and suddenly their name cropped up in the
revenue records. Revenue record does not confer title and only suit for possession
without a relief of declaration of title was not maintainable and Trial Court also
granted the relief without deciding the title. Trial Court committed serious
illegality relying on the previous suit. Moreover, documents filed through
application under Order 41 Rule 27 were not in their knowledge previously and
first Appellate Court committed material error of law in dismissing the
application. Will dated 08.05.1919 of Budhsen Kumar is not a subject matter of
dispute. Plaintiffs have to stand upon its own legs and cannot take advantage of
weakness of defence.
13. Firstly this Court is mentioning about the Ex.D-2, D-3, D-4 and D-5
regarding which the appellants have argued that they have not been considered.
14. Ex.D-2 is the misal Khasra year 1909-10 of Survey no.104, 119, 120 and
153 situated at Mauja Gohalpur, Jabalpur Bandobast No.601/995, Revenue Circle
and Tehsil, Jabalpur. In column no.5, the owner is recorded Musammat Surjan
Bai and in column no.6, the name of Kisan as against survey no.104 is recorded
Hiralal, Bhaiyalal, Khubiya S/o. Bihari. As against survey no.119 the name of
Musammat Dhoogiya w/o. Bihari and against survey no.120 of Hiralal Bhaiyalal
Khubiya S/o. Bihari is recorded as occupancy tenant (Maurusi). and against
survey no.153 the name of Gangadhar is recorded as occupancy (Muafi Khairati).
15. Ex.D-3 is the khasra of 1911-12 of survey no.153 and name of owner in
column no.5 is recorded as Musammat Surjan Bai and in column no.6 the tenant
is recorded Shri Mahadevji Sarbarhakar Bhole Kumhar (Muafi Khairati) and in
column No.13 possession of tenant is recorded and entry with red ink is made.
16. Ex.D-4 is the entry of khasra of the year 1934-35 regarding survey no.119,
120 and 159 and in column no.3 name of Surjan Bai as Numberdar is recorded
and in column no.4 the occupant is recorded Shri Mahadevji Sarbarhakar Pitaiyya
and in column no.5 sub-tenant is also recorded.
17. Ex.D-5 is the Jamabandi of year 1936-37 of survey no.104, 119, 120, 159
and 153 in which the occupant is recorded Shri Mahadevji Sarbarhaikar Pitaiyya
and owner is recorded Surjan bai Numberdar and land of 104, 119 and 159 are
recorded as Maurusi occupancy and land No.153 is recorded as occupancy Muafi
Khairati.
18. Trial Court discussed the Ex.D-2 to D-4 in para-32 and 33 of the judgment
and Ex.D-5 in para-36 of the judgment and also discussed the Ex.D-6 to D-9 in
para-34 and 35 of the judgment. First Appellate Court also reappreciated the
evidence while affirming the findings of Trial Court.
19. Appellants have also raised the probative value of Ex.P-1 and P-2 and
argued that they did not relate to the title over disputed property. They mention
the possession only.
20. Perused the Ex.P-1 to Ex.P-4. Ex.P-1 is the judgment dated 02.09.1930 in
Civil Suit no.255 of 1929 by Subordinate Judge, Class-II, Jabalpur and Ex.P-2 is
the decree, Ex.P-3 is the judgment and Ex.P-4 is the decree dated 19.02.1931 in
Civil Appeal No.85 of 1930 by District Judge, Jabalpur in which the findings of
Trial Court vide Ex.P-1 and decree Ex.P-2 have been affirmed.
21. The decree Ex.P-2 clearly indicates that Musammat Surjan Bai was the
party as defendant no.2 in the suit filed by temple of Shri Mahadevji through
executeor and Sarbarhakar and in this suit the defendants were ordered to put
possession of the lands comprising survey no. 104, 119, 120 and 159 situated at
Gohalpur Tehsil Jabalpur to plaintiff after fully discussing the rights of plaintiff
Shri Mahadevji Mandir in issue no.1. The land of fields No.104, 120 and 197 and
119 was mentioned as absolute occupancy fields and land of field No.159 was
mentioned as occupancy field and land of field No.153 was mentioned as
occupancy Muafi Khairati.
22. Perusal of Ex.P-2 and findings recorded on issue no.1 in Ex.P-1 the
arguments on behalf of appellant is sans merit that both the Courts misinterpreted
the Ex.P-1 and P-2. This argument also have no force that the mere decree of
possession cannot be granted.
23. In the light of the details of the Ex.D-2 to D-5 and Ex.P-1 to P-4 as
discussed above, the findings of Trial Court regarding constructions and
interpretation of those documents is not perverse. Documents Ex.D-6 to D-9 have
also been interpreted properly. Decree in favour of plaintiff is not based merely on
entry of revenue records and findings recorded in para-33 of the Trial Court also
does not require interference.
24. First Appellate Court has discussed at length in para Nos.12 to 16 of the
judgment for rejecting the application under Order 41 Rule 27 of the CPC filed by
appellants through which they proposed the xerox copy of Will dated 08.05.1919.
In the light of Ex.P-1 to P-4 also, the argument based on the purported Will does
not substantiate the appellants.
25. No substantial question of law is made out. Hence, this appeal is not fit for
admission, therefore, it is dismissed at the stage of admission.
(GAJENDRA SINGH)
JUDGE
DPS
DHEERAJ PRATAP SINGH
2024.02.16 19:35:37 +05'30'
