Madhya Pradesh High Court
Krishnachandra vs Rakesh on 21 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 21st OF APRIL, 2025
SECOND APPEAL No. 28 of 2020
KRISHNACHANDRA AND OTHERS
Versus
RAKESH AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
WITH
SECOND APPEAL No. 31 of 2020
KRISHNACHANDRA AND OTHERS
Versus
OMPRAKASH AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
SECOND APPEAL No. 33 of 2020
KRISHNACHANDRA AND OTHERS
Versus
GEORGE AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 21-Apr-25
4:48:36 PM
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SECOND APPEAL No. 34 of 2020
KRISHNACHANDRA AND OTHERS
Versus
BASANT AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
SECOND APPEAL No. 36 of 2020
KRISHNACHANDRA AND OTHERS
Versus
PARASRAM AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
SECOND APPEAL No. 37 of 2020
KRISHNACHANDRA AND OTHERS
Versus
RAJU AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the appellants.
Reserved on: 28.03.2025
Pronounced on: 21.04.2025
JUDGMENT
This order shall govern the disposal of S.A.No.28/2020, S.A.No.31/2020,
S.A.No.33/2020, S.A.No.34/2020, S.A.No.36/2020 and S.A.No.37/2020.
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Regard being had to the similitude of the controversy involved in the
aforesaid appeals, they are heard analogously and disposed of by this common
judgement.
2. This batch of second appeals under Section 100 of the Code of Civil
Procedure, 1908 have been filed by the appellants/plaintiffs against the common
judgment and decree dated 25.09.2019 passed by the learned Additional District
Judge, Dharampuri, District Dhar in Civil Appeals No. 5-A/2018, 6-A/2018, 7-
A/2018, 8-A/2018, 9-A/2018 and 10-A/2018 whereby the civil appeals filed by
the appellants were dismissed, affirming the common judgment and decree dated
19.12.2017 passed by the learned II Civil Judge, Class-I, Dharampuri in Civil
Suits No.38-A/2017, 39-A/2017, 40-A/2017, 41-A/2017, 42-A/2017 and
43-A/2017 wherein the suits instituted for possession, permanent injunction, and
mesne profits were dismissed.
3. The facts of the case briefly stated are that the plaintiffs/appellants had
instituted individual civil suits claiming that respective defendants had illegally
encroached upon specific portions of their lands bearing survey nos. 421 (area
0.444 hectares), 421/1/1 (area 0.100 hectares) and 421/2 (area 0.111 hectares)
situated at Village Dhamnod, Tehsil Dharampuri, District Dhar. The claim of the
plaintiffs was based on a revenue demarcation conducted on 05.06.2008 and in
each suit the plaintiffs alleged that the defendants had encroached upon the
western portion of their land to varying extents--ranging from 215 sq. ft. to 990
sq. ft. and relied upon Panchnamas and demarcation reports to substantiate their
claims. The defendants in all these suits remained ex-parte.
4. Nevertheless, the learned trial court dismissed the suits by judgment dated
19.12.2017 after appreciating the pleadings and documents and it was held that
although the plaintiffs had produced demarcation reports and panchnamas but
they failed to establish the exact identity and location of the alleged
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encroachments. The trial court observed that the demarcation reports referred to
certain areas of land in survey No. 420 being in possession of the defendants
however there was no document or proof to demonstrate that such land actually
formed part of the survey No. 421 or its subdivisions of the plaintiffs. The Court
further noted that in none of the demarcation reports was there any specific
mention of encroachment over the western side of survey nos. 421/1/1 or 421/2.
More significantly, the plaintiffs failed to examine the concerned official who
had conducted the demarcation thereby rendering the reports unproved. On the
issue of limitation, the trial court found that the suits were filed almost nine years
after the date of demarcation and hence were barred under Article 65 of the
Limitation Act, 1963. The applications under Order 26 Rule 9 CPC filed in suits
were also dismissed.
5. Being aggrieved by the judgment of the trial court, the plaintiffs preferred
six separate civil appeals which were heard and decided together by the learned
first appellate court vide judgment dated 25.09.2019 wherein the learned
Additional District Judge, Dharampuri dismissed all the appeals concurring with
the findings of the Trial Court. The Appellate Court held that the plaintiffs had
failed to discharge the burden of proving encroachment over their land and
further held that the demarcation reports lacked evidentiary worth in the absence
of the testimony of the demarcating authority. The Appellate Court also noted
that the suits were barred by limitation and that no cogent reason was shown for
the delay in instituting the suits. Thus, both the trial Court and the first appellate
Court gave concurrent findings against the plaintiffs, aggrieved by which now
the plaintiffs/appellants have approached this Court.
6. For the sake of convenience, facts of each second appeal in short are
as under:-
S.A.No.28/2020 - Krishnachandra & Ors. vs. Rakesh & Ors.
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6.1 Plaintiffs instituted Civil Suit No. 41-A/2017 against defendant Nos. 01
and 02 namely Rakesh and Bhagwan seeking possession, permanent injunction,
and mesne profits in respect of 480 sq. ft. of land forming part of their holdings
in survey nos. 421 (area 0.444 hectares), 421/1/1 (area 0.100 hectares) and 421/2
(area 0.111 hectares) situated in Village Dhamnod, Tehsil Dharampuri, District
Dhar. The plaintiffs relied on the Panchnama (Exh.P/07) and Demarcation Report
(Exh.P/09) dated 05.06.2008 and claimed that the encroachment was on the
western part of their land. Vide judgment dated 19.12.2017, the trial Court
dismissed the suit and held that the demarcation merely noted 30 kadi bhumi
land of Survey No. 420 in possession of Late Parvatibai (predecessor of
defendants) but there was no proof to establish that the said land was part of
Survey No. 421. It was also held that the suit was filed nearly nine years later
rendering it barred by limitation. The plaintiffs filed Civil Appeal No. 6-A/2018
against the said decree which was dismissed by the First Appellate Court on
25.09.2019 affirming the findings of the trial court.
S.A.No.31/2020 - Krishnachandra & Ors. vs. Omprakash & Anr.
6.2 Plaintiffs filed Civil Suit No. 43-A/2017 against defendant Omprakash
alleging encroachment over 480 sq. ft. of land located in the western part of their
land bearing Survey Nos. 421, 421/1/1, and 421/2. The plaintiffs contended that
the encroachment was confirmed during the demarcation carried out 05.06.2008
but the trial Court in its judgment dated 19.12.2017 dismissed the suit holding
that while demarcation mentioned 29 kadi bhumi land of survey no. 420 being in
the possession of defendant Omprakash there was no evidence that such land
formed part of the holding of plaintiffs. Further, the alleged encroachment on the
western boundary was not reflected in either the panchnama or demarcation
report and that the suit was also filed after significant delay which led the Court
to dismiss it on grounds of limitation also. The plaintiffs filed Civil Appeal No.
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10-A/2018 which was also dismissed by the first appellate Court on 25.09.2019
affirming the findings of the trial Court.
S.A.No.33/2020 - Krishnachandra & Ors. vs. George & Anr.
6.3 Plaintiffs instituted Civil Suit No. 37-A/2017 seeking possession and
mesne profits for 400 sq. ft. of land allegedly encroached by defendant George
on the western side of Survey Nos. 421, 421/1/1, and 421/2. Plaintiffs relied on
demarcation dated 05.06.2008 but the trial court by judgment dated 19.12.2017
found that although 24 kadi bhumi land of Survey No. 420 was recorded in
possession of George but no evidence established that this land was part of the
land of plaintiffs. The trial Court further held that the documents did not mention
any encroachment on the western boundary. Being aggrieved, plaintiffs filed
Civil Appeal No. 7-A/2018 which was dismissed on 25.09.2019 by the first
appellate Court affirming the findings of the trial court.
S.A.No.34/2020 - Krishnachandra & Ors. vs. Basant & Anr.
6.4 The Civil Suit No. 38-A/2017 was filed by the plaintiffs alleging
encroachment of 990 sq. ft. by defendant Basant on the western side of their land
bearing Survey Nos. 421, 421/1/1, and 421/2. Plaintiffs relied on the
demarcation dated 05.06.2008 and other documents but the trial Court vide
judgment dated 19.12.2017 dismissed the civil suit by observing that
demarcation recorded 24 kadi bhumi land of Survey No. 420 in possession of
defendant Basant but there was no documentary evidence showing it belonged to
the land owned by the plaintiffs. The demarcation report did not refer to any
encroachment on the west side. The plaintiffs filed Civil Appeal No. 8-A/2018
which was dismissed by the first appellate Court vide judgment dated 25.09.2019
affirming the findings of the trial court.
S.A.No.36/2020 - Krishnachandra & Ors. vs. Chunnilal & Anr.
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6.5 Plaintiffs instituted Civil Suit No. 39-A/2017 against defendant Parasram
alleging illegal occupation of 215 sq. ft. on the western side of their land
comprising Survey Nos. 421, 421/1/1 and 421/2. The claim was supported by
panchnama and demarcation report dated 05.06.2008. The trial Court vide
judgment dated 19.12.2017 dismissed the suit holding that although 26 kadi
bhumi land of Survey No. 420 was shown in possession of defendant Parasram
however the plaintiffs failed to prove that the land was part of Survey No. 421.
No reference to encroachment on the western side was found in the demarcation
and the report was unproved due to non-examination of the officer. Being
aggrieved, the plaintiffs filed Civil Appeal No.9-A/2018 which was dismissed on
25.09.2019 upholding the findings of trial Court.
S.A.No.37/2020 - Krishnachandra & Ors. vs. Raju & Anr.
6.6 Plaintiffs filed Civil Suit No. 40-A/2017 against defendant Raju claiming
encroachment over 215 sq. ft. of land on the western side of Survey Nos. 421/1/1
and 421/2. Relying on demarcation dated 05.06.2008 the plaintiffs alleged that
the encroachment was by plaintiff Raju who remained ex-parte. The trial Court
dismissed the suit vide judgment dated 19.12.2017 observing that although
demarcation recorded 26 kadi bhumi land of survey no. 420 in possession of
Raju but there was no evidence that this land belonged to the plaintiffs. Neither
demarcation nor panchama mentioned encroachment on the western boundary.
The suit was also found barred by limitation. Being aggrieved, plaintiffs filed
Civil Appeal No. 5-A/2018 which was dismissed on 25.09.2019 by the appellate
Court concurring with all findings of the trial Court.
SUBMISSIONS OF APPELLANT
7. Learned counsel for the appellants/plaintiffs submitted that the Courts
below have committed grave illegality and material irregularity in dismissing the
suit for possession and permanent injunction despite undisputed evidence of title
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of appellants over the suit land and the fact of encroachment having been duly
established. Learned counsel submitted that the demarcation proceedings dated
05.06.2008 were proved by documentary evidence including Exh. P/7, P/8 and P/
9 which were never challenged by the private respondents before any revenue
authority under the M.P. Land Revenue Code, 1959 and thus attained finality. In
absence of any rebuttal, the Courts below erred in discarding the evidentiary
value of these documents.
8. Learned counsel submitted that the finding of the Courts below of treating
the suit as barred by limitation is perverse and reflects a complete misreading of
Article 65 of the Limitation Act, 1963. Learned counsel submitted that
possession of a trespasser however longstanding cannot mature into ownership
unless the same is hostile and adverse to the knowledge of the true owner which
has not been established in the present case.
9. Learned counsel submitted that the rejection of the application of
appellants under Order XXVI Rule 9 CPC for appointment of a commissioner
was unjustified particularly when the dispute between the parties essentially
pertained to boundary demarcation. Reliance is placed upon the decision of the
Hon'ble Apex Court in Haryana Wakf Board vs. Shanti Sarup reported in
(2008) 8 SCC 671 wherein Apex Court held that such disputes ought to be
resolved by the aid of a Court Appointed Commissioner.
10. Learned counsel submitted that the findings with respect to limitation are
erroneous in as much as the cause of action was continuing and the right to
possession was not extinguished merely due to passage of time. Learned counsel
submitted that both the Courts have mechanically recorded findings without
taking into account the peculiar nature of land disputes where physical
possession may be difficult to delineate without assistance of technical reports
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and further submitted that such technical lapses should not defeat the substantive
rights of the plaintiffs.
11. Learned Counsel hence prayed for the appeal to be admitted on the
following substantial question of law:-
a. Whether in the absence of any challenge by respondent no.1 in
respect of the demarcation proceedings Ex. P/7, P/8 and P/9, the
findings recorded by the Courts below for disbelieving the demarcation
are perverse and vitiate the impugned Judgments and Decrees?
b. Whether the findings recorded by the Courts below for non-suiting
the appellants in their claim for possession despite proof of title and
encroachment of respondent no. 1 and 2, are perverse and illegal being
in breach of the law laid down by the Hon'ble Apex Court in the case of
Indira v/s Arumugam reported in 1998(1) SCC 614?
c. Whether the findings recorded by the Courts below on the issue of
limitation are illegal on account of misinterpretation of the provisions
of Article 65 of the Limitation Act?
d. Whether the Lower Appellate Court, in any event, has committed an
error of law and jurisdiction in dismissing the application under Order
26 Rule 9 C.P.C. without considering that the dispute between the
parties was a boundary dispute and could have been resolved by
appointment of Commissioner in terms of the law laid down by the
Hon'ble Apex Court in the case of Haryana Wakf Board v/s Shanti
Sarup reported in 2008(8) SCC 671?
e. Whether the findings recorded by the Lower Appellate Court
regarding improper valuation and non-payment of proper court fees are
perverse and vitiate the impugned Judgment and Decree?
APPRECIATION AND CONCLUSION
12. This Court has carefully perused the record as well as the judgments of the
learned trial Court and the first appellate Court. The appellants/plaintiffs
instituted civil suits seeking possession and permanent injunction in respect of
portions of land alleging encroachment by the defendants over specified areas
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ranging between 215 sq. ft. and 990 sq. ft. The plaintiffs relied primarily on
demarcation conducted by revenue authorities on 05.06.2008 along with
panchnama and supporting documents. However both the Courts below after
proper appreciation of the oral and documentary evidence have concurrently held
that the plaintiffs have failed to establish the location and encroachment over
their land.
13. From the record, it is apparent that the demarcation reports relied upon by
the plaintiffs merely refers to certain parts of Survey No. 420 being in possession
of the defendants. However, there is no clear evidence to link those portions with
the land holdings of the plaintiffs. Further, the plaintiffs have failed to examine
the concerned revenue authority who conducted the demarcation thereby
depriving the court of the opportunity to test the veracity and authenticity of the
said documents. Both, the trial Court and the appellate Court have rightly held
that in a suit for possession and injunction the burden lies upon the plaintiffs to
establish their title or prior possession, the alleged act of encroachment with
clarity and certainty which has not been discharged by the plaintiffs in the
present cases resulting in dismissal of the suits.
14. So far as the issue of limitation is concerned, the learned Courts below
have correctly held the suits time barred as the suits were filed after an
unexplained delay of nearly 37 years from the date of alleged dispossession or
encroachment. The cause of action as pleaded having arisen in 2008 on the basis
of demarcation has been rightly disbelieved by both Courts below. Mere
demarcation cannot give rise to a fresh cause of action so as to override the
statutory period prescribed under Article 65 of the Limitation Act, 1963. The
plaintiffs have failed to bring on record any material to show acknowledgment of
their right by the defendants within the limitation period or to establish any
continuous cause of action.
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15. Even otherwise there is a concurrent finding as recorded by both the
Courts, hence, the scope of interference under Section 100 of the CPC by the the
High Court is very limited as held by the Apex Court in case of Kondiba
Dagadu Kadam v/s Savitribai Sopan Gujar reported in (1999) 3 SCC 722 has
held as under:
"5. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of
fact, being the first appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses accepted by the trial court
in respect of credibility but even where it has rejected the witnesses
accepted by the trial court; the same is no ground for interference in
second appeal when it is found that the appellate court has given
satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences are possible, one drawn by the lower
appellate court is binding on the High Court in second appeal.
Adopting any other approach is not permissible. The High Court
cannot substitute its opinion for the opinion of the first appellate court
unless it is found that the conclusions drawn by the lower appellate
court were erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of pronouncements
made by the Apex Court, or was based upon inadmissible evidence or
arrived at without evidence.
7. If the question of law termed as a substantial question stands
already decided by a larger Bench of the High Court concerned or by
the Privy Council or by the Federal Court or by the Supreme Court,
its merely wrong application on the facts of the case would not be
termed to be a substantial question of law. Where a point of law has
not been pleaded or is found to be arising between the parties in the
absence of any factual format, a litigant should not be allowed to
raise that question as a substantial question of law in second appeal.
The mere appreciation of the facts, the documentary evidence or the
meaning of entries and the contents of the document cannot be held to
be raising a substantial question of law. But where it is found that the
first appellate court has assumed jurisdiction which did not vest in it,
the same can be adjudicated in the second appeal, treating it as a
substantial question of law. Where the first appellate court is shown to
have exercised its discretion in a judicial manner, it cannot be termed
to be an error either of law or of procedure requiring interference in
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second appeal. This Court in Reserve Bank of India v. Ramkrishna
Govind Morey [AIR 1976 SC 830] held that whether the trial court
should not have exercised its jurisdiction differently is not a question
of law justifying interference.
16. In case of Laxmidevamma v/s Ranganath reported in (2015) 4 SCC 264
again the Apex Court has held as under:-
"16. Based on oral and documentary evidence, both the courts below
have recorded concurrent findings of fact that the plaintiffs have
established their right in a schedule property. In the light of the
concurrent findings of fact, no substantial questions of law arose in
the High Court and there was no substantial ground for re
appreciation of evidence. While so, the High Court proceeded to
observe that the first plaintiff has earmarked the A schedule property
for road and that she could not have full-fledged right and on that
premise proceeded to hold that declaration to the plaintiffs' right
cannot be granted. In exercise of jurisdiction under Section 100 CPC,
concurrent findings of fact cannot be upset by the High Court unless
the findings so recorded are shown to be perverse. In our considered
view, the High Court did not keep in view that the concurrent findings
recorded by the courts below, are based on oral and documentary
evidence and the judgment of the High Court cannot be sustained."
17. Recently, the Apex Court in case of Adiveppa & Others v/s Bhimappa &
Others reported in (2017) 9 SCC 586 has held as under:
"17. Here is a case where two Courts below, on appreciating the
entire evidence, have come to a conclusion that the Plaintiffs failed to
prove their case in relation to both the suit properties. The concurrent
findings of facts recorded by the two Courts, which do not involve any
question of law much less substantial question of law, are binding on
this Court.
18. It is more so when these findings are neither against the pleadings
nor against the evidence and nor contrary to any provision of law.
They are also not perverse to the extent that no such findings could
ever be recorded by any judicial person. In other words, unless the
findings of facts, though concurrent, are found to be extremely
perverse so as to affect the judicial conscious of a judge, they would
be binding on the Appellate Court."
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18. In view of the above, this Court finds no infirmity or perversity in the
concurrent findings of fact recorded by the trial Court and the first appellate
Court and as such no interference is warranted. Accordingly, the second appeals
being devoid of any substantial question of law, are hereby dismissed.
19. Let a copy of this judgment be placed in the record of connected appeals
i.e. S.A.No.31/2020, S.A.No.33/2020, S.A.No.34/2020, S.A.No.36/2020 and
S.A.No.37/2020.
Record of the concerned Courts be sent back.
(VIVEK RUSIA)
JUDGE
vidya
