Madhya Pradesh High Court
Shrikrishna vs Seemabai D/O Kailash Sharma on 30 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 30 th OF MAY, 2024
SECOND APPEAL No. 834 of 2024
BETWEEN:-
SHRIKRISHNA S/O BABULAL PATIDAR, AGED ABOUT 67
Y E A R S , OCCUPATION: AGRICULTURE VILLAGE
JHAKRUD, TAHSIL DHARAMPURI, DISTRICT DHAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI BHARAT I. MEHTA, LEARNED SENIOR ADVOCATE ALONGWITH
SHRI JITENDRA BHARAT MEHTA, ADVOCATE.)
AND
1. SEEMABAI D/O KAILASH SHARMA W/O
NARENDRA SHARMA, AGED ABOUT 60 YEARS,
OCCUPATION: HOUSEHOLD KHALGHAT, TAHSIL
DHARAMPURI, DISTRICT DHAR (MADHYA
PRADESH)
2. SARITABAI D/O KAILASH SHARMA, AGED ABOUT
58 YEARS, OCCUPATION: HOUSEHOLD
GANDHINAGAR AERODROME ROAD, INDORE
DIST. INDORE (MADHYA PRADESH)
3. STATE OF M.P. THROUGH THE COLLECTOR DIST.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(NONE.)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Learned counsel for the appellant heard on the question of admission.
02. This second appeal has been preferred by the appellant under Section
100 of Code of Civil Procedure (in short "CPC") being aggrieved by the
impugned judgment and decree dated 13.02.2024 passed by the Additional
Judge to District Judge, Dharampuri, District Dhar in Civil Appeal No.RCA-
13/2023, thereby affirming the judgment and decree dated 31.07.2023 passed by
the Civil Judge, Junior Division, Dharampuri, District Dhar in Civil Suit No.8-
A/2018 filed by the appellant / plaintiff for declaration of title and permanent
injunction, which has been dismissed by the trial Court.
03. Brief facts of the case are that the plaintiff is the Bhoomi Swami of
the land in question which has been sold by the defendant Nos.1 & 2 vide sale-
deed dated 08.04.1993. The plaintiff is in possession of the suit land since the
time of sale but in the sale-deed survey No.435 was wrongly mentioned. It was
actually survey No.412/1, name of the plaintiff has been mutated in the revenue
records over the survey No.425. The aforesaid mistake came to the knowledge
of the plaintiff when the defendant started proceeding in revenue Court hence,
he filed the present civil suit for declaration of title and permanent injunction.
04. The defendant No.1 denied the plaint averment by submitting in her
written statement that she had sold out the land bearing survey No.425 to the
plaintiff and possession of the same land has been handed over to the plaintiff
and name of the plaintiff was also mutated in the revenue records over the
survey No.425 but in order to grab the land, plaintiff has filed the suit.
05. On the basis of the aforesaid pleadings, the trial Court has framed the
issues and after recording evidence and scrutinizing the evidence dismissed the
civil suit filed by the plaintiff / appellant. Being aggrieved by the same, the
appellant has preferred first appeal before the Additional Judge to the District
Judge, Dharampuri but the same has been dismissed by uphelding the judgment
and decree passed by the trial Court. Hence, this second appeal has been filed.
06. Learned counsel for the appellant contended that the impugned
judgment and decree passed by both the Courts below is against the law and
fact. Both the Courts below have failed to consider that the appellant is the
owner of the land bearing survey No.412/1. There is a discrepancy regarding
the survey number and the area of the land but in the sale-deed gives
unambiguous description of the four boundaries, mistake in plot number does
not affect the identity of the said property. Appellant is in possession of the
aforesaid land hence, he prays that judgment and decree passed by both the
Courts below be set aside and suit filed by him be decreed on the proposed
substantial question of law.
07. I have gone through the judgment and decree passed by both the
Courts below and also perused the entire record with due care.
08. From perusal of the sale-deed Ex.P/3 it appears that in the sale-deed
survey number is categorically mentioned as 425 admeasuring 0.645 hectare. On
the basis of the aforesaid, the plaintiff / appellant name was mutated in respect
of land bearing survey No.425 by Kishtbandi Khitoni Ex.P/2, the main
contention of the appellant is that there is a mistake in the plot numbers but it
does not affect the identity of the land in question but if there was any error or
discrepancy in the survey number, why the appellant / plaintiff did not file any
application before the Registry Officer for correction of survey number in the
sale-deed. Sale-deed was executed on 16.04.1993 and civil suit was filed before
the trial Court in the year 2018 i.e. for about 25 years plaintiff did not raised any
objection regarding any discrepancy about the survey number.
09. For the aforesaid period of 25 years, there was also discrepancy
regarding the area of the suit land, the area of survey No.425 and 412/1 are
different. If there was any mistake in the sale-deed then why the appellant /
plaintiff did not make any effort for its rectification before the mutation
proceedings. The mutation proceeding was also done in respect of the survey
No.425, therefore, looking to the aforesaid evidence, the averment made by the
learned counsel for the appellant cannot said to be sustainable.
10. Although the appellant has preferred a judgment of Divisional Bench
of this Court in case of Raj Bai (Smt.) V/s Uday Pratap Singh reported in
2014 (II) MPWN 78 in which it has been held that if the sale-deed given
ambiguous description of the boundaries, mistake in the plot numbers, it does
not affect the identity of the sole land. In the case of Subhaga and others V/s
Shobha and others reported in (2006) 5 Supreme Court Cases 466 it has
been held that once the property has been identified by the boundaries even if
there is any discrepancy, the boundaries should prevail.
11. But in the instant case, appellant / plaintiff did not file any
demarcation report. During the pendency of the civil suit, he never applied for
spot inspection. The appellant did not examine any Patwari, Revenue Inspector
or any other Revenue Officer to establish the four boundaries of the suit land.
In absence of the aforesaid, the oral statement of the appellant / plaintiff cannot
be relied upon.
12. Apart from the above, learned counsel for the appellant submits that
appellant is in continuous possession of the suit land since 1993 i.e. from the
date of sale to till now, therefore, on the basis of the adverse possession he
became an owner of the suit land but the appellant did not file continuous
panchshala khasra for the period of about 25 years. Even the appellant did not
file any relevant document regarding revenue record or any other paper for
proving his continuous possession on the suit land, therefore, the plea of
adverse possession set up by the appellant was rightly dismissed by both the
Courts below as there is no evidence available before the Courts below to
establish this plea.
13. In the light of the aforesaid discussion, this Court is of the considered
view that the judgment and decree passed by both the Courts below are well
reasoned and are based on due appreciation of oral as well as documentary
evidence available on record. The findings recorded by the Courts below are
concurrent findings of fact.
14. Learned counsel for the appellant has failed to show that how the
findings of fact recorded by the Courts below are illegal, perverse or based
upon no evidence. Thus, no substantial question of law arises for consideration
in the present second appeal. The Supreme court in number of cases has held
that in exercise of powers under section 100 of the CPC the Court can interfere
with the findings of fact only if the same is shown to be perverse and based
upon no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul
Majeed and others , 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin,
2012(8) SCC 148 and Vishwanath Agrawal Vs. Sarla Vishwanath
Agralwal 2912(7) SCC 288.
15. For the aforesaid reasons, no substantial questions of law arises for
consideration in this appeal. The appeal fails and is hereby dismissed in limine.
Certified copy, as per Rules.
(ANIL VERMA)
JUDGE
Divyansh
