Chand Khan and Others vs Gopal Bhatt and Another

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution challenges the order dated 12.3.2013, passed by Additional District Judge, Shivpuri in Misc. Civil Appeal No. 1/13, whereby the appeal of the petitioners preferred under Order 43 Rule 1 CPC is rejected. This Misc. Appeal was directed against the order passed by trial court on 2.11.2012 in Civil Suit No. 96A/2012, whereby the petitioners'' application under Order 39 Rules 1 and 2 CPC was rejected. The petitioners filed a suit for declaration and permanent injunction. The suit was filed on the basis of claiming adverse possession. On the basis of certain khasra entries, it was stated that the petitioners are in possession. However, the trial court did not grant injunction. The petitioners'' Misc. Appeal was also rejected.

Shri Ashish Shrivastava, learned counsel for the petitioners submits that as per pleadings of paras 1 and 2 of the plaint (Annexure P/2), it is clear that the petitioners have specifically pleaded that they are in possession on the suit land since 1950-51 and, therefore, the court should not have disbelieved it. He relied on column No. 12 of the khasra entry to submit that the petitioners are in possession. Thus, he submits that the orders of the court below are bad in law.

Per Contra, Shri S.K. Shrivastava, learned counsel for the respondent No. 1 submits that the petitioners are relying on column No. 12 of the khasra entries whereas the relevant column is 3. Column No. 12 deals with "report" (Kafiat) whereas column No. 3 deals with the name of the person, who is in possession, his father/husband name, place of residence etc. By drawing the attention of this Court on the khasra filed with the return, it is stated that in relevant column No. 3 the name of respondent No. 1 is mentioned. By relying on Shri Raja Durga Singh of Solan Vs. Tholu, , it is contended that if two khasra entries are available for the purpose of grant of injunction, it is the latest khasra entry, which is relevant. In addition, it is submitted that the petitioners were encroacher and after appropriate proceedings u/s 240 of MP Land Revenue Code the encroachment was removed, which is clear from the order dated 22.9.2009. The Panchnama and report of the revenue inspector is also shown to the Court to submit that the petitioners are no more in possession.

I have heard learned counsel for the parties and perused the record.

The trial court has passed a detailed order and considered the aforesaid aspects. On the basis of material on record the trial court opined that the petitioners are not in possession. The order passed u/s 240 of MPLRC and Panchanama were taken into account for arriving at to the said conclusion. The appellate court considered the aforesaid aspect and after taking into account the entire documentary evidence and pleadings opined that there is no prima facie case made out by the petitioners. The other ingredients for grant of injunction are also not satisfied. Hence, Misc. Appeal is also rejected.

In the considered opinion of this Court, the scope of interference under Article 227 of the Constitution is well defined. In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , the Apex Court opined that this Court cannot sit as an appellate court to reweigh or reappreciate the evidence. If the order impugned suffers from any jurisdictional error, suffers from any palpable perversity or manifest procedural impropriety, interference can be made. Another view is possible is not a ground of interference. Interference can be made sparingly and not as a matter of routine on a drop of hat. Considering the aforesaid, in my opinion, the orders passed by the courts below are based on material on record and cannot be said to be perverse. No ingredients on which interference under Article 227 of the Constitution can be made are available. Petition is merit less and is hereby dismissed.