Madhya Pradesh High Court
Lalsingh vs The State Of Madhya Pradesh on 28 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:2181
1 SA-268-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
SECOND APPEAL No. 268 of 2023
LALSINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aniket Naik - Advocate for the appellants.
Shri Ashi Vaidya - Panel Lawyer for the respondent/State.
RESERVED ON : 16.01.2025
PRONOUNCED ON : 28.01.2025
.......................................................................................................................................................
ORDER
This Second Appeal under Section 100 of the CPC is preferred being
aggrieved by the judgment and decree dated 20.10.2022 passed in Regular
Civil Appeal No.13/2018 by the III rd Additional District Judge Barwani
arising out of judgment and decree dated 30.11.208 in RCS No.20-A/2018
by the Civil Judge, Class-I, Rajpur, District Barwani.
02. Facts of the case in brief are that the appellants/plaintiffs filed a
civil suit for mandatory and prohibitory injunction with an averment that the
Survey No.82/1 Area 3.941 Hectares land situated at village Salitanda,
Tehsil Rajpur, District Barwani is recorded as government land and plaintiffs
are exercising the right to graze their cattles alongwith other persons and
there is a way to access their fields and carry the cattles from Survey No.82/1
since long. The government has no right to allot the Survey No.82/1 in
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favour of any other person and the same has not been allotted to anyone even
to the respondents no.4 to 13. The respondents no.4 to 13 are making a
construction on the land of Survey No.82/1 and respondents no.1 to 3 are
protecting the respondents no.4 to 13. They are not prohibited the
respondents no.4 to 13 from raising any constructions. They have dugged the
land with the help of JCB machine. When plaintiffs objected then they
lodged false criminal case. Notice under Section 80 of the CPC was served
on 16.09.2016 but construction activities were continued. So, suit was filed
to demolish a 3 feet wall and closing the pit through JCB machine and
declaration that the defendants no.4 to 13 have no right to raise a
construction over the land of survey no.82/1 situated at village Salitanda,
Tehsil Rajpur, District Barwani. The respondents no.1 to 3/defendants no.1
to 3 filed a joint written statement and denied the allegation of plaint and
avert that land of Survey No.82/1 is a barren land. It is not fit for grazing the
cattles. On this barren land, a permission has been granted to plant the trees.
Shri Hanuman Mandir Trust which is registered under the M.P. Public Trusts
Act, 1951 as registration no.7/2015-2016 dated 12.05.2018, the respondents
no.4 to 13 are the trustees of that public trust. There is no permission of
construction and the customary way is open for the use of villagers. They
make a local inspection and it was found that the plaintiffs are encroaching
the land of Survey No.82/1 and for this purpose they have got the northern
part of the hill through machine and encroached 0.250 hectare and further
they have encroached 0.050 hectare land of Survey No.82/1 for the purpose
of crop.
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03. The respondent no.4 to 13 also filed a joint written statement and
denied the averments of plaint and also filed a counter claim with a
declaration that the plaintiffs be restrained from interference in the social and
religious activities conducted by the Sanstha and to prohibit the plaintiffs
from making further encroachment on the land of survey no.82/1.
04. But, counter claim filed by the respondents no.4 to 13 was replied
by the plaintiffs and it was stated that they also follow the Hindu Religion
and they did not make any interference in the social gatherings or festivals.
They are bound to encroach the survey no.82/1 in the garb of public trust and
it was pleaded that the counter claim be dismissed.
05. The trial Court framed total 11 issues and recorded the evidence of
Lal Singh as PW-1, Rai Singh as PW-2 and Laxman as PW-3 and admitted
the documents Exhibit-P/1 to Exhibit-P/34-C and Exhibit-D/1 to D/3. The
defendants examined Narendra Dawar as DW-1, Suresh as DW-2, Somla as
DW-3 & Magan Chouhan as DW-4 and admitted the documents Exhibit-D/1
to Exhibit-D/23 on behalf of the defendants/respondents no.4 to 13.
06. Appreciating the evidence, the trial Court does not found proved
that the defendants no.4 to 13 have encroached upon survey no.82/1. The
trial Court did not found proved that any right of way is being obstructed. On
the contrary, it found proved that the plaintiffs are making a trespass in the
land of survey no.82/1 and the trial Court dismissed the suit of the plaintiffs
despite the positive finding on issue no.8 that plaintiffs are making trespass
on the land of survey no.82/1. The counter claim filed by the respondent no.4
to 13 was also dismissed recording the finding that respondent no.1 to 3 may
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take appropriate action in this regard.
07. Judgment and decree of the trial Court was challenged by the
plaintiffs before the First Appellate Court and the First Appellate Court also
affirmed the findings of the trial Court and dismissed the appeal.
08. This Second Appeal has been preferred proposing the following
substantial questions of law:-
(i) Whether, the suit of the plaintiffs ought to have decreed to the
extent of injunction on the strength of the admissions about existence of the
way made by private defendants' witnesses being binding proprio vigore
under Section 58 of the Evidence Act, 1872 ?
(ii) Whether, the dismissal of suit vide impugned judgment and
decree stand vitiated being the outcome of ignorance of defendants'
witnesses' admissions ?
(iii) Whether, the learned courts below could have dismissed the suit
on merits after holding absence of inherent jurisdiction in the civil courts ?
Heard the learned counsel for the parties & perused the record.
09. Exhibit-D/13, D/19 & Exhibit-P/1 are the Khasra of Survey
No.82/1 Area 3.941 hectares situated at village Salitanda, Tehsil Rajpur,
District Badwani. This land is recorded in column no.3 as government land
and column no.12 discloses that Hanuman Mandir is situated at this land.
The respondent nos.1 to 3 has admitted that the land of Survey No.82/1 is
used as customary way but also averred that the same way is open and it is
not obstructed. On the contrary, Exhibit-D/1, D/2 & D/3 are to the effect that
the plaintiffs/appellants have encroached on the land of Survey No.82/1 and
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Tehsildar Rajpur, District Badwani have initiated the proceedings under
Section 248 of the M.P. Land Revenue Code, 1959 through Exhibit-D/14
and D/15 to remove the encroachment. The trial Court and First Appellate
Court have properly appreciated the oral as well as documentary evidence.
When the access of way is not denied and there is no obstruction to use the
way then no case for further declaration is made out. Hence, no substantial
questions of law arises for consideration in this appeal. Accordingly, the
appeal being devoid of merit is hereby dismissed.
No order as to costs.
(GAJENDRA SINGH)
JUDGE
VS
