Madhya Pradesh High Court

Ramkishan Jatav vs Jameela (Deleted) on 24 July, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

         NEUTRAL CITATION NO. 2025:MPHC-GWL:15422




                                                              1                                SA-231-2016
                              IN     THE       HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                          BEFORE
                                           HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                    ON THE 24th OF JULY, 2025
                                                 SECOND APPEAL No. 231 of 2016
                                                RAMKISHAN JATAV AND OTHERS
                                                           Versus
                                               JAMEELA (DELETED) AND OTHERS
                           Appearance:
                                   Mr. Abhisehk Singh Bhadauria - Advocate for appellants.
                                   Mr. Tara Chandra Narvaria - Advocate for respondents No. 1 to 3.

                                                             JUDGMENT

Heard on the question of admission.

2. The appeal being arguable is admitted on the following substantial question of law:-

"(i) Whether the Courts below, after holding that defendants have encroached upon Khasra No. 216, have erred in dismissing the suit by holding that plaintiffs have failed to prove that they are the exclusive owners of Khasra No. 216?"

3. Since respondents are represented by their counsel, therefore, appeal is heard finally.

4. This second appeal under Section 100 of CPC has been filed against judgment and decree dated 30.01.2016 passed by First Additional District Judge, Guna in Civil Appeal No. 24-A/2015, as well as judgment and decree

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2 SA-231-2016 dated 30.11.2011 passed by Third Civil Judge, Class II, Guna in Regular Civil Suit No. 3-A/2011.

5. Appellants are plaintiffs who have lost their case from both the Courts below.

6. Before considering the facts of the case, it would be in fitness of things to mention that this is the third round of litigation. On two occasions, case was remanded back by the appellate Court.

7. The facts necessary for disposal of present appeal, in short, are that Kunjlal and Paramsukh filed a civil suit for mandatory injunction and delivery of possession after removing the construction raised by defendant over Khasra No. 216, area 0.146 hectare, situated in Purani Chhawani, Guna. Kunjlal and Paramsukh died and appellants are the legal representatives of

Kunjlal and Paramsukh. It is the case of original plaintiffs that they are the owners of Khasra No. 216, area 0.146 hectare, and the names of plaintiffs are recorded in the revenue records. A demarcation was got done, and it was found that defendants have encroached upon Khasra No. 216, whereas defendants have no right or title to raise construction over Khasra No. 216. Accordingly, a notice was issued to defendants and since construction was not removed, therefore, suit was filed for mandatory injunction that the construction raised by defendants over Khasra No.216, area 0.146 hectare, be removed, and vacant possession of the property in dispute be handed over to plaintiffs and mesne profit @ Rs.75/- was also sought.

8. Defendants filed their written statement and denied the plaint averments. It was claimed that plaintiffs have got their names mutated in the

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3 SA-231-2016 revenue records in a clandestine manner. Owner of Survey No. 216 is Chhuttan Shah, and Chhuttan was in cultivating possession since the lifetime of his father, Vajeer Shah. It was claimed that property in dispute was purchased by Jafar Mohammad, who was the husband of defendant No. 2, and father of defendants No. 3 and 4, and by registered sale deed executed by Chhuttan Shah, and defendants have raised a construction after spending more than Rupees Ten Thousand. By amendment, it was pleaded that Jafar Mohammad had purchased Survey No. 213 from Chhuttan Shah.

9. Thus, contention of defendants was that Jafar Mohammad had purchased Survey No. 213 from Chhuttan Shah by registered sale deed.

10. Trial Court, after framing issues and recording evidence, held that defendants have encroached upon Survey No. 216, and have raised construction over 1543 sq. ft. of land forming part of Survey No. 216. It was held that construction has been raised without any authority, but surprisingly, it was held that since original plaintiffs, namely, Kunjlal and Paramsukh are not the exclusive owners of property in dispute, therefore, suit was dismissed. In paragraph 6 of the judgment, trial Court held that Survey No. 216 was made after Survey Nos. 1197/1, 1197/2, and 1197/3 were combined, and names of Kammoda and Chhuttan Shah were recorded in the revenue records. It was observed that how names of Kunjlal and Paramsukh (original plaintiffs) were exclusively recorded in the revenue records has not been explained, and therefore, it was held that plaintiffs have failed to prove that they are the owners of Survey No.216, area 0.146 hectare.

11. The undisputed fact is that original plaintiffs, Kunjlal and

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4 SA-231-2016 Paramsukh, are the legal representatives of Kammoda, and even according to paragraph 6 of the judgment passed by the trial Court, Survey Nos. 1197/1, 1197/2, and 1197/3 were jointly recorded in the name of Kammoda and Chhuttan Shah, and Survey No. 216 comprises of aforementioned three survey numbers, i.e., 1197/1, 1197/2, and 1197/3. Since plaintiffs are the legal representatives of Kammoda, therefore, it is clear that they were the co- owners. If the name of Chhuttan was illegally deleted from the revenue records, then it is for Chhuttan or his legal representatives to make a complaint, but plaintiffs cannot be held to be the co-owners merely because they have failed to prove as to how the name of Chhuttan Shah got deleted from the revenue records.

12. Be that whatever it may.

13. Even assuming that plaintiffs are the co-owners, now the only question for consideration is as to whether a co-owner can maintain a suit for possession against a trespasser or not?

14. The Supreme Court in the case of Jahar Roy (Dead) Through L. Rs. and Another Vs. Premji Bhimji Mansata and Another , reported in (1977) 4 SCC 562, has held as under:-

"17. Moreover, as has rightly been held in the impugned judgment of the Calcutta High Court, the two contesting defendants in this case became tenants on sufferance or trespassers on the termination of their licence. A co-owner could in the case of indivisible property, well have maintained a suit for the recovery of the whole from persons holding unlawful possession thereof. Reference in this connection may be made to the decisions in Mahabala Bhatta v. Kunhanna Bhatia, Chandri v. Daji Bhau, Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh, Syed Ahmad Sahib Shutari v. The Magnesite Syndicate Ltd. and Maganlal Dulabhdas v. Bhadar Purshottam."

15. The Supreme Court in the case of Poonnamma Jagadamma and

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5 SA-231-2016 Others Vs. Narayanan Nair and Others, reported in (2017) 6 SCC 778 , has held as under:-

"14. Having considered the rival submissions, we find force in the argument of Respondent 1 that even if the claim of Respondent 1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent 1, Achuthan Nair) under a will executed by their father has still not been done, that would not negate Respondent 1 from being a co- owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent 1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief gratned by the High Court to construct such compound wall, is very specific and in no manner likely to adversely effect the appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf."

16. A co-ordinate Bench of this Court, by judgment dated 15.12.2016 passed in the case of Vijay Kumar Jain and Another Vs. Umesh Prasad and Others, decided in Second Appeal No.1083/2014 (Principal Seat) , has held as under:-

"13. .... This is not a suit between the co-owners or the members of family who claim their right by succession or inheritance etc. It is settled law that any one of the co-owner can bring a suit for injunction against the trespassers. Defendants are claiming their rights on the property by virtue of unregistered sale deed. Therefore, this is not necessary to adjudicate whether the plaintiffs have got the disputed property by inheritance or not. As the plaintiffs are legal heirs of Nanhe who inherit the property after the death of Nanhe and his sons Mithailal and Govind Das. They are competent to bring the suit against defendants. Therefore, the trial Court has not committed any illegality in not framing the aforesaid issue."

17. Thus, it is clear that even if plaintiffs have failed to prove that under what circumstances, name of Chhuttan was deleted from the revenue records, but still even assuming that Chhuttan or his legal representatives are

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6 SA-231-2016 having half share in the property, still plaintiffs will be the co-owners. The right of Kammoda was never in dispute, and plaintiffs are the legal representatives of Kammoda.

18. Under these circumstances, trial Court as well as appellate Court have committed an illegality by holding that suit filed by plaintiffs against an encroacher for removal of encroachment and possession is not maintainable.

19. Accordingly, it is held that even a co-owner can maintain a suit for possession against the trespasser in order to protect his property.

20. Both the Courts below have given a concurrent finding of fact respondents/defendants have encroached upon 1543 sq. ft. of land forming part of Khasra No. 216. Admittedly, Jafar Mohammad had purchased Khasra No. 213, and he had not purchased Khasra No. 216.

21. Under these circumstances, by affirming the findings recorded by the Courts below, that defendants/respondents have encroached upon 1543 sq. ft. of land forming part of Khasra No. 216, it is held that suit filed by original plaintiffs, may be in the capacity of co-owners, was maintainable against defendants for removal of encroachment and possession.

22. Accordingly, substantial question of law is answered in affirmative.

2 3 . Ex consequentia, judgments and decrees passed by the Courts below, so far as it relates to dismissal of suit on the ground of

maintainability, are hereby set aside, and accordingly, it is directed that:

(i) Suit filed by plaintiffs is hereby decreed,

(ii) Defendants have encroached upon 1543 sq. ft. of land forming part

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7 SA-231-2016 of Khasra No. 216,

(iii) Plaintiffs are the owners/co-owners of Khasra No. 216, and they are entitled for removal of construction raised by defendants on Khasra No. 216,