Madhya Pradesh High Court
Nathu Badhai (Since Dead) Through Legal ... vs Raju Kushwaha on 22 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:3138
1 SA-88-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22 nd OF JANUARY, 2025
SECOND APPEAL No. 88 of 2024
NATHU BADHAI (SINCE DEAD) THROUGH LEGAL REPRESENTATIVES
BHAGWANDAS BADHAI AND OTHERS
Versus
RAJU KUSHWAHA AND OTHERS
Appearance:
Shri Praveen Dubey - Advocate for the appellants.
Shri Abhishek Tiwari - Advocate for respondents 1-6 and 8-10.
None for respondent 7.
Shri Anil Upadhyay - Panel Lawyer for respondent 11/State.
ORDER
Heard on IA No.1081/2024, which is an application under Section 5 of the
Limitation Act for condonation of delay in filing of the appeal.
2. Registry has reported this appeal to be barred by 43 days.
3. Contesting respondents 1-10, who are already served, have not filed any
reply / counter affidavit, therefore and for the reasons mentioned in the
application, there appears sufficient cause for condonation of delay in filing of the
appeal. Resultantly, condoning the delay occurred in filing of the appeal, IA
No.1081/2024 is allowed and disposed off.
4. Also heard on the question of admission.
5. This second appeal has been preferred by the appellants/legal
representatives of original plaintiff-Nathu (who died during pendency of the first
appeal) challenging the judgment and decree dated 22/8/2023 passed by First
District Judge, Jatara, District Tikamgarh in RCA No.36/2018 affirming the
NEUTRAL CITATION NO. 2025:MPHC-JBP:3138
2 SA-88-2024
judgment and decree dated 29/6/2018 passed by Civil Judge Class-II, Jatara,
District Tikamgarh in Civil Suit No.33A/2017, whereby Courts below have
concurrently dismissed plaintiff's suit for declaration of title, restoration of
possession and permanent injunction filed in respect of an area 0.012 hectare out
of total area 1.927 hectare of survey No.4292 situated in Village Jewar, Tahsil
Lidhora, District Tikamgarh.
6. Learned counsel for the appellants submits that title of the plaintiff over
the land in question is clearly proved from the Khasra and Kishtbandi Khatoni of
the year 2016-17 (Ex.P/7 and P/8) and in respect of their title, defendants have not
produced any document. He submits that in view of the provision contained in
Section 117 of the M.P. Land Revenue Code, 1959 there is a presumption of
correctness of Khasra entries until and unless they are rebutted by the opposite
party and as such, Courts below have committed an illegality in not relying
unrebutted Khasra entries and in dismissing the suit. He submits that in
demarcation proceedings also defendants were found to be encroachers, but
without taking into consideration the same, Courts below have dismissed the suit.
He also submits that although the plaintiff also took a plea of adverse possession,
but he is leaving the same in view of plea of title taken in the plaint. With these
submissions, he prays for admission of the second appeal.
7. Learned counsel appearing for respondents 1-6 and 8-10 supports the
impugned judgment and decree and prays for dismissal of the second appeal.
8. Heard learned counsel for the parties and perused the record.
9. Although name of appellants' father Nathu is shown as Bhumiswami in
the Khasra and Khatoni of the year 2016-17 (Ex.P/7 and P/8), but except these
documents no other document has been placed on record to show the source of
title of Nathu and taking into consideration this aspect of the matter, Courts below
NEUTRAL CITATION NO. 2025:MPHC-JBP:3138
3 SA-88-2024
have held that in absence of any source of such entries, mere Khasra entries cannot
be considered in proof of title of the plaintiffs over the land in question. It has also
been considered by Courts below that the defendants are in possession of the land
having constructed their house for last 20-25 years and the suit has been filed after
the aforesaid period.
10. So far as the question of findings recorded in the demarcation
proceedings, is concerned, in the present case as plaintiffs have not been found
Bhumiswami /owner of the land in question, therefore, the same also does not give
any help to the plaintiffs/appellants.
11. Upon due consideration of the material available on record, this Court
does not find any illegality in the concurrent judgment and decree passed by
Courts below.
12. Resultantly, in absence of any substantial question of law, second
appeal fails and is hereby dismissed.
13. Misc. application(s) pending, if any, shall stand closed.
14. However, no order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
