Madhya Pradesh High Court
Nirmala Thakre vs Hemraj Bedare on 29 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 29 th OF FEBRUARY, 2024
SECOND APPEAL No. 2370 of 2019
BETWEEN:-
1. NIRMALA THAKRE W/O LATE GANPATI THAKRE,
AGED ABOUT 50 YEARS, BHANEGAON TAH
KIRNAPUR BALAGHAT (MADHYA PRADESH)
2. SHANKR THAKRE S/O LATE GANPATI THAKRE,
AGED ABOUT 30 YEARS, VILL. BHANEGAON TAH.
KIRNAPUR DISTT. BALAGHAT (MADHYA
PRADESH)
3. RAJA @ RAJENDRA THAKRE S/O LATE GANPATI
THAKRE, AGED ABOUT 26 YEARS, VILL.
BHANEGAON TAH. KIRNAPUR DISTT. BALAGHAT
(MADHYA PRADESH)
4. HEMLATA BALLE W/O RAJKUMAR BALLE, AGED
ABOUT 37 YEARS, MURRA BHATTI CHOUK PREM
NAGAR GUDHYARI RAIPUR (CHHATTISGARH)
5. PREMLATA DOKARMARE W/O PURUSHOTTAM
DOKARMARE, AGED ABOUT 28 YEARS, NEAR TAX
OFFICE CHANDAN NAGAR NAGPUR
(MAHARASHTRA)
.....APPELLANT
(BY SHRI PARITOSH TRIVEDI - ADVOCATE)
AND
1. HEMRAJ BEDARE S/O TARACHAND BEDARE,
AGED ABOUT 35 YEARS, VILLAGE BHANEGAON
KIRNAPUR BALAGHAT (MADHYA PRADESH)
2. SMT. ANNU BAI W/O KULESHWAR KANTODE
VILL. BHANEGAON TAH. KIRNAPUR DISTT.
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
(BY SHRI ABHIJIT BHOWMIK - ADVOCATE FOR RESPONDENT NO.1)
Signed by: HIMANSHU
KOSHTA
Signing time: 12-03-2024
13:11:22
2
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal under Section 100 of the C.P.C. has been preferred
feeling aggrieved by the judgment and decree dated 04.04.2019 in Regular Civil
Ap p eal No.55/2017 by Ist Upper District Judge, Balaghat arising out of
judgment and decree dated 30.01.2017 in Civil Suit No.28-A/2014 passed by
IInd Civil Judge, Class-II, Balaghat.
2. Facts in brief are that plaintiff/respondent filed a suit for possession of
land of survey no.224/11 area 0.01 dismal alongwith constructed house of that
land situated area village Bhanegaon, Tehsil Kirnapur District Balaghat on the
basis that the above mentioned property was purchased by the father of
plaintiff/respondent no.1 on 23.08.1997 by registered sale deed and the
property was mutated in the name of father of plaintiff i.e. Tarachand Bedare
and after the death of Tarachand Bedare in 2008, the property is mutated in the
name of plaintiff/respondent no.1. The father of plaintiff/respondent no.1
constructed the house on the land and permitted in one portion to live Shri
Tarachand and in other portion to Mohanlal thereafter tenant lived in the house.
After the death of father, the plaintiff/respondent no.1 collected the rents as the
land owner of the property. Defendant/appellant got the possession of the
property to run his hotel business and plaintiff/respondent permitted due to
relation thereafter defendant denied to restore the possession and prepared
forged agreement then suit for possession was filed.
3. Defendant/appellant contested the case on the ground that he was in
possession of the property since 25 years in the knowledge of plaintiff's father
Tarachand. He was in possession of the disputed property peacefully and
constructed the house with his own expenses. Possession of the defendant no.1
was never objected and Tarachand also treated him as the owner of the
property and also assured that defendant no.1 may get the property mutated in
his name at his own risk and revenue court has also entered his name as the
owner on the revenue records in column no.12. He has acquired possession of
the disputed property on the basis of adverse possession.
4. On the basis of pretext of the parties, Trial Court framed total six
issues and recorded the evidence of plaintiff Hemraj Bedare (PW-1), Manoj
Darvare (PW-2), Nandkishore Rawate (PW-3) and admitted the documents
Ex.P-1 to Ex.P-6 on behalf of plaintiff and defendant Ganpanti examined
himself as DW-1, Murli Nakhate (DW-2) and Omkar (DW-3).
5. Appreciating the evidence, Trial Court found proved the title of
plaintiff and possession of defendant as permissive on the basis of license and
rejected the claim of defendant on the ground of the adverse possession and
decreed the suit.
6. First Appellate Court also affirmed the findings of Trial Court.
7. This Second Appeal is preferred proposing following substantial
questions of law :-
"i. Whether the courts below have committed error to see
that without declaring order of Tahsildar as null and void
from which name of the appellants have been entered in
revenue record as owner, decree of possession cannot be
granted ?
ii. Whether the courts below have committed error to not
consider this fact that the possession of the appellants over
the disputed land is hostile, continue, peaceful, in the
knowledge of respondent/plaintiff since 25 years, hence he
has become owner of the disputed land on the ground of
adverse possession.
iii. Whether the judgment and decree of the courts below
are perverse, without considering the facts, documents,
evidence available on record ?"
8. Trial Court has recorded the findings in para-17 to 19 of the impugned
judgment through which it discarded the plea of the adverse possession of the
defendant. No revenue entry has been proved in support of his claim of adverse
possession. Perusal of testimony of Ganpati (DW-1), Murli Nakhate (DW-2)
and Omkar (DW-3) do not render the findings perverse. Registered sale deed
Ex.P-4 is in favour of plaintiff/respondent.
9. No substantial question of law as proposed is made out. Hence this
Second Appeal is not fit to be admitted for final hearing and hence, it is
dismissed.
(GAJENDRA SINGH)
JUDGE
HK
