Atmaram Tripathi vs The State Of M.P.
2024 Latest Caselaw 6062 MP

Madhya Pradesh High Court

Atmaram Tripathi vs The State Of M.P. on 28 February, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                         BEFORE
          HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                  ON THE 28 th OF FEBRUARY, 2024
                  SECOND APPEAL No. 1770 of 2019

BETWEEN:-
1.    ATMARAM      TRIPATHI    S/O   RAMPRASAD
      TRIPATHI, AGED ABOUT 60 YEARS, OCCUPATION:
      AGRICULTURIST

2.    RAMAKANT TRIPATHI S/O SHRI RAMPRASAD
      TRIPATHI, AGED ABOUT 57 YEARS, OCCUPATION:
      AGRICULTURIST

3.    SMT. LAXMI TRIPATHI W/O SHRI RAMPRASAD
      TRIPATHI, AGED ABOUT 57 YEARS, OCCUPATION:
      HOUSEWIFE

      ALL ARE R/O VILLAGE UPREHATI TEHSIL HUZUR
      DISTT REWA AT PRESENT VILLAGE SUMEDA
      POST BIHRA TEHSIL HUZUR DISTRICT REWA
      (MADHYA PRADESH)

                                                         .....APPELLANTS
(BY SHRI BHUPENDRA SHUKLA - ADVOCATE)

AND
1.    THE STATE OF M.P. THROUGH COLLECTOR
      REWA DISTRICT REWA (MADHYA PRADESH)

2.    NAYAB      TEHSILDAR, PRABHARI   CIRCLE,
      BANKUINYA, TEHSIL HUZUR, DISTRICT REWA
      (MADHYA PRADESH)

                                                        .....RESPONDENTS
(BY SHRI AMAN PATEL - LAWYER)

      Reserved   on : 22.02.2024
      Pronounced on : 28.02.2024

      This appeal having been heard and reserved for orders, coming on for
                                      2

pronouncement this day, the court passed the following:
                                      ORDER

This second appeal has been preferred against the judgment and decree o f first appellate court passed on 29.3.2019 by First Additional Judge to the Court of First Additional District Judge, Rewa, in RCA No.26-A/2015 whereby the judgment and decree passed on 24.2.2014 by Fourth Civil Judge, Class II, Rewa, in Civil Suit No.24-A/2011 were upheld and dismissing the first appeal the decision of trial court regarding dismissal of civil suit was confirmed.

2 . The appellants shall hereinafter be referred to as "plaintiffs" and respondents as "defendants" in congruence with their serial numbers.

3 . The admitted facts for decision of this appeal are that a notice to remove encroachment was given to the plaintiffs under the provision of Section 248 of the Madhya Pradesh Land Revenue Code, 1959 (for short, "the Code") regarding suit property and aggrieved by that notice dated 21.5.2010 the plaintiffs filed this suit for declaration of their title and permanent injunction over the suit property with old Khasra No.407 and New Khasra No.537.

4 . Brief facts relating to this case are that the disputed property admeasuring one acre was of the ownership of the ancestors of plaintiffs; the father of plaintiff became Bhumiswami of this property upon enforcement of the Code and earlier to that he was the lease holder of this property; in 1972-73 the property was wrongly recorded in revenue papers as Government land eligible to be given on lease and aggrieved by this entry, a case was filed in Tahsil Court registered as Case No.559/72-73; an order was passed in favour of plaintiffs in that case on 26.10.1973 holding that the plaintiffs were the Bhumiswami owners of the suit property and directions were given to modify the revenue entries accordingly; the subordinate officers never obeyed the said

order nor corrected the entry, but the possession of plaintiffs remained unopposed throughout the period; in 2010 defendant no.2 threatened to evict the plaintiffs from the said property and for this, a notice was given under Section 248 of the Code; frightened by this notice, the plaintiffs filed this suit for the reliefs of declaration of their right, title and protection of their possession; defendants opposed the suit by claiming that the plaintiffs were never the owners, leaseholders or Bhumiswamis of the disputed property; it is a Government land and the order dated 26.10.1973, which is being relied upon by the plaintiffs, is a fabricated order; the file related to this order is not available; the plaintiffs encroached upon this Government land sometime back and for this, a notice for removal of encroachment has been given; the defendants are not attempting any illegal eviction and they have adopted a duly legal procedure; the plaintiffs could have appeared before the revenue court to challenge the notice and prove their title, but instead they have resorted to file this false civil suit. It was, therefore, prayed that the suit be dismissed with costs and compensation.

5. The trial court offered the opportunity to both the parties to submit evidence but at the stage of evidence, defendants failed to appear, therefore, proceedings were taken up ex-parte against them. The plaintiffs examined total three witnesses in their ex-parte evidence and filed documents of Exs.P-1 to P-

9. No evidence was led on behalf of defendants. On appreciation of evidence, the trial court gave the finding that plaintiffs failed to prove that the property in dispute was their ancestral property and that they were the Bhumiswamis and possession holder of the property. Accordingly, the suit was dismissed by trial court and the first appeal filed by the plaintiffs also met with similar fate. Hence, this second appeal.

6. Arguments of both the sides have been heard through their counsel and the records have been perused.

7. It is a case where the plaintiffs claimed ownership over disputed property on the basis of leasehold and Bhumiswami rights since the time of their ancestors. It is claimed by plaintiffs that their father was the leaseholder and his name was recorded in Jamabandi Khatoni of 1958-59. That entry is Ex.P-2 but it does not show that the father of plaintiffs no.1 and 2 was given Bhumiswami right in the said property. The entry itself shows that there were some interpolations in the record. It can be safely observed that it would have been prudent on the part of plaintiffs to file entries of prior and subsequent periods as well, but only single entry is filed on behalf of plaintiffs.

8. Ex.P-1 is the prime document relied upon by the plaintiffs. It says that the property was of the ownership of the father of plaintiffs no.1 and 2 and for this, reference has been made therein to revenue entries of the years 1913-14 and 1965-66 to 1969-70. Strangely, none of these entries have been produced in the record of trial court despite the fact that the case was for declaration of title. Withholding these important documents of ownership has not been explained at any stage. The trial court dismissed the suit for want of relevant revenue entries o f ownership, still the plaintiffs failed to file any documents before first appellate court under the provision of Order 41 Rule 27 of the Code of Civil Procedure, 1908 regarding their ownership entries in revenue documents nor even here any application under that provision has been moved by the plaintiffs. Thus, adverse inference has been rightly drawn against the plaintiffs for non- production of necessary documents of title.

9 . It has been categorically stated by the defendants in their written

statements that the order dated 26.10.1973, which is being relied upon by the plaintiffs, is a false and fabricated document as the original record of the case in which this order was passed is not available. To contest this allegation, the plaintiffs could have requested the trial court to call the original record or could have otherwise proved the existence of record but no measures to that end were taken by the plaintiffs.

10. The Jamabandi Khatoni entry, marked as Ex.P-2, shows that Survey No.407 had numerous sub-divided areas recorded in favour of different persons. There is no evidence available on record which would show that the entry made against the name of father of plaintiffs was in regard to property of Survey No.407/1. The total area of Survey No.407 was more than 16 acres and herein only a part of it i.e. one acre was in dispute which had old Survey No.407/1 and new Survey No.537. This shows that document of Ex.P-2 having entry about the property of Survey No.407 had no co-relation with the property of Survey No.407/1 or new No.537. It was for the plaintiffs to prove that their ancestors had title or possession over the property of Survey No.407/1 but the entire record of trial court reveals that no document proves the title and possession of plaintiffs or their ancestors over the property of Survey No.407/1.

11 . On the basis of above discussion of facts, this court finds no substantial questions of law involved in this second appeal, therefore it is dismissed in limine.

12. Let the records of the courts below be sent back along with a copy of this order for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.03.01 11:41:17 +05'30'