Bhanwarlal vs The State of M.P.

J.K. Maheshwari, J.—This appeal is by plaintiff directed against the judgment and decree dated 22.3.2004 passed by the Additional District Judge, Ganj Basoda District Vidisha in Civil Appeal No. 5-A/2004 confirming the judgment and decree dated 6.12.2003 passed by Civil Judge, Class-II, Ganj Basoda in Civil Suit No. 114-A/2002 whereby the suit filed by the plaintiff seeking declaration of title on the basis of adverse possession and permanent injunction has been dismissed.

The plaintiff''s case in brief was that he is the owner of the agricultural land of Survey No. 847 Min Rakba 4.000 situated in Tehsil Nateran having boundaries specified in the suit. It is said that on the suit land the plaintiff is in possession since last more than 30 years and cultivating the same peacefully therefore by virtue of adverse possession he has acquired title on the land in question. It is further said that the entries made in the revenue papers by the revenue authorities with respect to encroachment of the plaintiff may be removed and he be declared the owner thereto. It is further prayed that the permanent injunction restraining the defendant to not to interfere in his possession may also be directed.

The defendant/respondent has filed their statement denying the plaint averments. It is said that the plaintiff is not continuous and peaceful possession on the suit land. He has rightly been recorded as encroacher, however not acquired any right title in the suit property. It is further said that the suit was not maintainable and the plaintiff is not entitled to seek any relief with respect to permanent injunction being encroacher, however, it may be dismissed.

Learned trial court as well as appellate court both dismissed the suit on the pretext that the plaintiff has failed to prove his continuous peaceful possession of last 30 years on the suit land. It is further held that mere stray entry of possession being encroacher do not confer any title to the plaintiff. It is also held that being encroacher he is not entitled to seek permanent injunction in his favour, however, preferred this appeal by plaintiff.

Shri S.S. Rajput learned counsel appearing on behalf of the appellant has fairly stated that looking to the revenue entries continuous and peaceful possession of last 30 years has not been established but his possession is apparent from the said revenue entries, produced by the defendant. However, in such circumstances while refusing the decree of declaration, protecting his possession to the limited extent, direction may be issued to not to evict him by following the due process of law.

In support of the said contention it is urged, this court vide order dated 5.5.04 directed to maintain status quo in the appeal. In such circumstances, an appropriate order protected his possession as prayed may be ordered.

Shri R.P. Rathi learned Govt. Advocate for the respondent/State opposing such prayer submits that in case the possession of appellant is directed to be protected then due procedure ought to be ordered to be followed otherwise the findings as recorded by the two courts below may be affirmed.

After hearing learned counsel for the parties and on perusal of the record it is apparent that the plaintiff has failed to prove his continuous peaceful possession hostile to real owner as per the evidence brought on record. In such circumstances, the finding of fact dismissing the suit seeking declaration as recorded by two courts below do not warrant any interference. But so far as the issue regarding injunction is concerned, it is seen that as per the document produced by the defendant the plaintiff was shown in possession though as encroacher which has been assailed by filing the suit by him. The said document cannot be denied by the defendant because it is of their own document and the revenue entries indicates possession of the plaintiff. The said possession was protected by this court while considering the application for temporary injunction, directing to maintain status quo. In such circumstances while dismissing the appeal having no substantial question of law, it is further observed that possession of the appellant be disturbed by following the due process of law.

With the aforesaid observations, this appeal is hereby dismissed.

No order as to cost.