Madhya Pradesh High Court
Kalu vs Amariya on 27 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:2081
1 SA-1571-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
SECOND APPEAL No. 1571 of 2023
KALU
Versus
AMARIYA AND OTHERS
Appearance:
Shri Padmnabh Saxena - Advocate for the appellant.
Shri Monisha Kasturi - Panel lawyer for the respondent/State.
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Heard on:- 24.01.2025.
Posted on:- 27.01.2025.
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ORDER
Heard on admission.
This second appeal under Section 110 of the CPC is preferred being
aggrieved by the judgment and decree dated 04.08.2022 passed in regular
civil suit No.04/2022 by Second District Judge, Jhabua arising out of
judgment & decree dated 28.02.2022 in regular civil No.05-A/2022 by Civil
Judge, Senior Division, Jhabua.
2. Facts in brief are that appellant/plaintiff filed a civil suit seeking
declaration and permanent injunction regarding survey No.150/2 area 1.230
hectare, survey No.438 area 0.760 hectare and survey No.506 area 0.580
hectare situated at village Mardundiya, Tehsil Ranapur, District Jhabua
asserting that the suit property have been in the ownership of
defendants/respondents but since 40 years the suit land earlier have been in
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the possession of father Hazariya Bheel and after death of Hazariya Bheel the
suit land is in his possession and he is cultivating the suit land. But in the first
week of June, 2020 defendants threatened him to evict the possession of suit
property. The time limit to recover the possession have been lapsed and
defendants cannot recover the possession of suit property and plaintiff cannot
be evicted from the suit property. His possession be protected.
3. Defendant No.1 to 3 and 5 to 19 filed a written statement
submitting that the suit property is in the ownership of defendant No.1 to 5,
defendant No.4 namely Gaura died nearly 12 years ago. Defendant No. 1ot 5
are in possession of the suit property as owner. Suit has been filed on
incorrect facts, cause of action has been falsely stated, suit is not
maintainable.
4. Trial Court framed a total three issues and recorded the evidence
of Kalu as PW-1, Jhetu as PW-2, Lasiya as PW-3, Nansu as PW-4 and Raju
as PW-5 and admitted the documents Ex.P/1 to P/3, Ex.P/1 the Kishtbandi
Khitoni of year 2019-20 and Ex.P/2 is the Khasra for the year 2019-20 and
Ex.P/3 is the copy of Panchanama dated 02.07.2018. No evidence was
adduced by defendants. Appreciating the evidence, trial Court recorded the
finding that evidence adduced by plaintiff is not sufficient to prove the
possession of the plaintiff over disputed land (para 17) and recorded the
finding that Ex.P/2 established the possession of defendants over the suit
property (para 18) and dismissed the plaintiffs suit.
5. The judgment and decree of the trial Court was challenged before
the first appellate Court and first appellate Court also affirmed the findings of
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trial Court and dismissed the appeal. This second appeal is preferred
proposing the following substantial questions of law:-
(a) Whether both the courts below were justified in denying the decree of permanent
injunction despite of the fact that a long possession of appellant/plaintiff over the
land in, question was duly proved by unrebutted evidence?
(b) Whether both the courts below were justified in disbelieving the oral statements
of appellant/plaintiff witness without there being any justified reason or evidence in
rebuttal?
(c) Whether both the courts below were justified in treating the suit which was filed
for permanent injunction only as a suit for declaration of title on the basis of adverse
possession?
(d) Whether both the courts below were justified in expecting the documentary
evidence inspite of the fact that ample ocular evidence in respect of possession are
placed on record?
(e) Whether both the courts below justified in overlooking the provisions of Section
117 of Madhya Pradesh Land Revenue Code?
(f) Whether both the courts below justified in disbelieving the Ex. P/3 Panchnama in
the light of Section 117 of Madhya Pradesh Land Revenue Code coupled with the
fact that no rebuttal or evidence to disprove the same?
(g) Whether the judgment and decree passed by both the courts below is sustainable
in the eye of law?
Perused the record.
6. No revenue entry is on record where possession of plaintiff is
recorded. Trial Court and first appellate Court has recorded cogent reasons
for not believing the Panchanama Ex.P/3 dated 02.0.218 as it has been
prepared on the information of Pancha but no Pancha has been examined.
7. Para 08 of deposition of plaintiff Kalu PW-1, para 04 & 05 of
Jhetu PW-2, para 05 of Lasiya PW-3, para 06 & 07 of Nansu PW-4, para 06
of Raju PW-5 affords sufficient reasons for not believing their oral
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testimony. Accordingly, trial Court and first appellate Court committed no
perversity in not disbelieving the oral testimony. Plaintiffs relief for
declaration that defendants right to property is extinguished due to not filing
the suit for possession within a period specified for recovery of property &
they cannot be dispossessed from the disputed property in the nature of
seeking relief on the basis of adverse possession. Accordingly, no substantial
questions of law arises. Therefore, this second appeal is not fit to be admitted
and hence, it is hereby dismissed at admission stage.
(GAJENDRA SINGH)
JUDGE
akanksha
