Amer Singh and Others vs Padam Singh and Others

One Takkha along-with Bhagun Singh and Rambaiya had filed a civil suit challenging the exchange of the property. That Civil Suit No.43-A/1984 was dismissed by the judgment and decree dated 25/01/1993 by the Civil Judge Class-II, Chanderi. However, after death of Bhagun Singh his legal representatives were added as party. The plaintiff Rambaiya had died and no legal representative was added thereafter. The legal representatives of Bhagun Singh along-with Takkha have filed a Civil Appeal No.4A/1993 before the Additional District Judge, Mungaoli. During pendency of the appeal, Takkha had expired and his legal representatives Amer Singh and etc. have been brought on record. However, the appeal was dismissed vide judgment and decree dated 08/09/2000. Being aggrieved with the aforesaid judgments and decrees, the appellants have preferred the present second appeal.

(2) Facts of the case, in short, are that the plaintiffs have filed a civil suit before the Civil Judge, Class-II, Chanderi that land bearing survey no.407 area 3.856 hectares of village Sakwar is shown in the name of respondent No.2- Gendi Bai. It was stated that the land was obtained by Smt. Gendi Bai on exchange with one Halka whereas Halka had died in Samvat 2016 (in the year 1959-60) and it is alleged that Halka had received the land bearing survey No.11/1 having area 2.508 hectare. However, that exchange was not done according to the provision of Madhya Bharat Land Revenue and Tenancy Act, Samvat- 2007 [hereinafter it would be referred to as "the LR & T Act '''']. The plaintiffs have claimed their possession on the property and, therefore, challenged the aforesaid exchange and claimed for a declaratory decree and consequential perpetual injunction relating to possession of the property. The defendants/respondents have denied the pleadings and according to them, exchange was appropriate and since it was not challenged in last so many years the suit was time barred and the plaintiffs are estopped to challenge the same.

(3) The trial Court after getting the pleadings, framed as many as nine issues relating to legality of the exchange, finality of the exchange, ownership and possession of the property, interference in the possession of the property done by the defendants, continuous possession of the property of the defendants, about pecuniary jurisdiction and Court fees, limitation relating to filing of the suit; and cost and relief. The trial Court has found that the plaintiffs could not prove their possession on the property and exchange was valid. In alternate, it is found that if there was no exchange then still the defendants became the owners of the property due to their right of adverse possession which was continuous for more than twelve years and the suit was dismissed. The appeal filed by the appellants was also dismissed.

(4) While considering the admission of the present second appeal, the Single Bench of this Court vide order dated 11/12/2000 has prepared following substantial questions of law for consideration of this appeal:-

"1. Whether the appellate Court has failed to consider the effect of Section 62 of the M.B.Land Revenue and Tenancy Act as to validity of allotment and consequent exchange of the land? 2. Whether in view of finding of possession of the appellant, suit could be held to be barred by limitation ?''''

(5) I have heard the learned counsel for the parties at length.

(6) In the present case, it is clear that there is a concurrent finding given by the Courts below and the entire matter depends upon the possession of property and consequently limitation of filing of the suit. In the present case, the appellants have challenged the exchange done by concerned revenue authority and to show the possession over the property. The appellants are claiming the land bearing survey no.407 having area 3.856 hectares at village Sakwar. In this connection, various documents were filed and the witnesses, namely, Takkha (PW1),Kosha Bai (PW2), Lalsa (PW3), Nirpat Singh (PW4) and Patwari Munis Khan (PW5) to show the possession of the plaintiffs on the suit property. Attention of this Court invited by learned counsel for the appellants to the document Ex.P5, the order passed by the SDM, Chanderi under a case of Section 145 of the CrPC. However, in the light of documents Ex.P1 and Ex.P2, it would be apparent that initially the land was registered in the name of various persons to whom the plaintiffs are legal representatives and by khasra Ex.P2 the land bearing survey no.407 was shown to be registered for the year 2019 in the name of the defendant Smt. Gendi Bai and, therefore, though original order relating to exchange is not available, by perusal of revenue record, it is apparent that order of exchange was passed and consequently, the possession was handed over to the parties concerned. It is very easy to claim about the possession of the property by individual party orally but if a cultivator having a possession on the property and cultivating the same continuously, then it is the duty of the Patwari to make an entry of the possession in Column No.12 of khasra

record and, therefore, it was for the plaintiffs to file khasra entries of the year 1961-1964 i.e. three years soon after the alleged exchange and khasra entries of three years soon before filing of the suit i.e. of 1981-82, 1982-83,1983-84 to show that the plaintiffs were in possession of the property after the exchange and before filing of the suit. The plaintiffs have examined Patwari Munis Khan (PW5) who gave a report that there was possession of the plaintiffs on the property but it appears that Patwari Munis Khan gave a report on oral statements of various witnesses. If the plaintiffs were in possession of the property in the years 1981-82, 1982-83 and 1983-84, then the entries of revenue record khasra could be produced before the concerned court. In absence of such entries, oral information given by the parties to the Patwari has no evidentiary value. The order Ex.P5 has been relied by the learned counsel for the appellants which was passed by the SDM in a proceeding under Section 145 of CrPC. However, it appears that the SDM concerned not only dismissed the application of the defendants in the order under Section 145 of CrPC but an order of injunction was also passed in favour of the plaintiffs whereas in the proceeding under Section 145 of CrPC such order could not be passed. It was the right of the Civil Court to pass an order of injunction. After perusal of that order passed by the SDM, it appears that he did not call any revenue record relating to entry of possession in khasra for disposal of that application under Section 145 of CrPC but he collected a report from Patwari who gave the report on the basis of oral statements of various witnesses and hence, the order Ex.P5 is nothing but an opinion drawn by the SDM and such opinion is not binding to any court relating to proof of possession. The Courts below have rightly discarded the document Ex.P5 to show the appellants'' possession.

(7) Under these circumstances, where the revenue entries of three years soon after the alleged exchange and of three years soon before filing of the suit were not produced before the trial Court to establish the continuous possession of the plaintiffs/appellants on the suit property and, therefore, the courts below have rightly dismissed the suit filed by the plaintiffs. The appellants could have the possession on the property at the time of filing of the suit for two reasons. Firstly, that after the alleged exchange they were remained in possession of property and secondly, that after exchange of that property they left the possession and thereafter they would have encroached the property and got the possession. On the other hand, if exchange proceeding is not legal and various provisions of LR & T Act were not followed by the concerned revenue officer then still it is proved beyond doubt that the defendants were in possession of the property since the year 1959 up-to 1984 and, therefore, by their continuous and uninterrupted possession of the property they have accrued the ownership of the land on the basis of their right of adverse possession. Hence, when suit was not brought soon after the alleged exchange, the persons who accepted the exchange and their legal representatives were estopped to challenge the same after so many years. Hence, the courts below have rightly found that suit filed by the plaintiffs is barred by limitation.

(8) When the plaintiffs could not prove their possession on the property soon before the filing of the suit and continuous possession after the exchange of the property then their claim cannot be accepted. If they had proved their possession on the property three years prior to filing of the civil suit then their possession could have been of an encroacher. No explanation has been given by the plaintiffs as to why they kept silence up-to the year 1984. Why such suit was not filed prior to that year. Hence, where the plaintiffs and their predecessors have accepted the exchange then at a later stage they cannot be permitted to challenge the same. They are estopped to challenge the proceeding of the exchange

done by the revenue officer. The learned counsel for the appellants has invited the attention of this Court to the provision of Section 68 of LR & T Act to show that Smt.Gendi Bai was not pakka tenant at the time of exchange and no objections were invited by Tahsildar at the time of exchange and so many irregularities are indicated by the learned counsel for the appellants but when such exchange was not challenged for 24 years, the suit filed by the plaintiffs was not only barred by limitation but they were estopped to challenge such proceeding of exchange because they have accepted such a situation. It was for the plaintiffs/appellants to prove their continuous possession soon after the order of exchange up-to the day when the suit was filed. Otherwise, if they would not have proved their possession soon after the exchange then it shall be presumed that exchange was executed and later on the plaintiffs have got the possession of the property as encroachers and if they could not prove the possession of the property soon before the filing of the suit then the defendants- respondents have got the right of ownership on the basis of their continuous peaceful adverse possession. Under these circumstances, the objections taken by the plaintiffs/appellants about the illegalities and irregularities took place while passing the order of exchange of the property, cannot be considered. Under these circumstances, there is no illegality or perversity in the judgments and decrees passed by the Courts below. There is no substance in the Second Appeal filed by the appellants. Consequently, the same is hereby dismissed. No order as to costs.