Baijnath vs Ram Kishan

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal is by the plaintiff directed against the judgment and decree dated 10.8.2004 passed by Additional District Judge, Guna in Civil Appeal No. 60A of 2001 confirming the finding of the trial court vide judgment and decree dated 27.9.2001 passed by Civil Judge Class I Raghogarh in Civil Suit No. 61A of 2000, dismissing the suit of the plaintiff seeking declaration of title and injunction.

The plaintiff''s case in brief was that in village Rampura Tehsil Raghogarh, agricultural land of Survey No. 12/9 area 1 Hectare is situated. The said land is recorded in the name of defendant which is in possession of the plaintiff. It is further stated that the plaintiff is cultivating the said land peacefully without any interruption, however, by virtue of adverse possession has acquired title against the defendant no. 1. As he is in possession, however, seeking injunction to not interfere in possession, was also sought.

The defendant no. 1 by filing written statement has denied the plaint averments, but possession of the plaintiff has been admitted. It is said that the plaintiff is in possession of the land, but when defendant reached on spot for taking possession following procedure of law, he has restrained from taking such possession, therefore, the suit for declaration of title and injunction may be dismissed.

Learned trial court as well as appellate court concurrently recorded the finding that the plaintiff has failed to prove continuous, uninterrupted and peaceful possession adverse to the defendant no. 1, therefore, declaration of title cannot be directed. It is further said that the defendant wanted to take possession as per procedure, therefore, injunction also cannot be granted.

Shri Anil Mishra learned counsel for the appellant after arguing at length with a view to demonstrate the case of declaration of title, but in absence of any revenue entries showing continuous, peaceful and uninterrupted possession, conceded of correctness of finding rejecting relief of declaration of title. However, it is contended that the possession of the plaintiff cannot be disturbed without following due process of law, however, with such observations, appropriate orders may be passed.

Shri R.K. Upadhyay learned counsel appearing on behalf of the respondent has strenuously urged that the decree of injunction as prayed cannot be directed looking to the finding recorded by the lower appellate court even on the point of injunction, therefore, the appeal may be dismissed.

After hearing learned counsel for the parties and on perusal of record, it is apparent that the land has been recorded in the revenue papers in the name of defendant no. 1 showing possession of the plaintiff. By filing cogent evidence, the plaintiff has to prove his case seeking declaration of title on the basis of adverse possession. No continuous peaceful possession hostile to real owner has been proved, however, the finding of fact concurrently recorded by two courts refusing decree of declaration of title do not warrant any interference. So far as relief of injunction prayed in the suit is concerned, looking to the admission of defendant no. 1 in the written statement, in my considered opinion, it is suffice to observe that the possession of the plaintiff can be disturbed by following due process of law.

With the foregoing observations, this appeal is hereby dismissed having no substantial question of law.