Dev Prakash Gulati and Others vs Nand Kumar and Others

K.K. Trivedi, J.—Learned Counsel for the appellants is heard on the question of admission.

This second appeal u/s 100 of the CPC has been filed against the judgment and decree dated 27.07.2009 passed in regular Civil Appeal No. 128-A/2009 by the X Additional District Judge, Bhopal, whereby the judgment and decree dated 30.04.2009 passed in Civil Suit No. 300-A/2005 by the XII Civil Judge, Class-II, Bhopal has been affirmed. The appellants/plaintiffs filed a civil suit for declaration of their title and permanent injunction alleging that the lands bearing Khasra No. 250/1/2, 250/1/3 and 250/1/4 of village Bishankhedi, Patwari Circle No. 34, Tahsil Hujur, District Bhopal was purchased by them from Shivcharan, Badami Lal and Phool Singh, who have executed sale-deed in their favour on 22.08.1995. It was contended that the aforesaid persons were title holder of the land as they have inherited the said land from their father Khushilal. After the purchase, the land was recorded in the names of the appellants/plaintiffs and they were put in possession of the land. However, an objection was raised by the legal heir of late Padam Singh and since the revenue courts ordered for mutation of the name of legal heir of Padam Singh, which order was affirmed up to the Board of Revenue, therefore, a dispute was raised and for declaration of title, permanent injunction and restraining the respondent No. 1/defendant to interfere in possession of the appellants over the suit land, the suit was required to be filed.

The claim of the appellants/plaintiffs was contested by the respondent No. 1 and a written statement was filed. It was said that the name of one Khushilal was recorded over the land in suit in the revenue records illegally whereas same was owned by late Padam Singh, the father of respondent No. 1. When the respondent No. 1 came to know about such a fact, he filed an application for correction of the revenue entries. After enquiry, the name of respondent No. 1 was recorded by removing the name of Khushilal, in respect of the suit land by the orders of the Revenue Court. Such an order was challenged in appeal and revision and up to the Board of Revenue, the order passed by the revenue authorities for correction of the revenue entries was maintained. Ultimately, the order of the Board of Revenue was challenged in the writ petition before this High Court but the said writ petition was withdrawn. It was, thus, contended that in fact the appellants have obtained no title over the suit land as the said suit land was never owned by the persons who have transferred the said land to the appellants. It was contended that because of such fraudulent act of the persons who have executed the sale-deed in favour of the appellants/plaintiffs, no title is conferred on the appellants and, therefore, the entire suit was liable to be dismissed.

The Trial Court framed the issues and recorded the evidence. The appellants examined their witnesses, who deposed about the execution of the sale-deed. The appellant No. 2 was also examined as a witness by the appellants/plaintiffs. It was said that the land was purchased by the appellants but none of them were residing at Bhopal. The land was not cultivated by the appellants themselves but an attorney was appointed by the appellants to look after the land. She was unable to admit her signature on the plaint. She admitted that signatures were made by Vikesh, appellant/plaintiff No. 1, when he was a minor. She also stated in her statement that she was having some knowledge about the dispute and the names of those, who have transferred the land to the appellants, were recorded in the revenue records. She admitted that such persons who have transferred the land were not made party in the suit. In paragraph 22 of her cross-examination, she admitted the fact that Exhibit P-7, notice, was sent by the appellants/plaintiffs through Advocate to the respondent No. 1 and the facts mentioned in the said notice were well within the knowledge of the said witness right from the year 1995.

The Trial Court specifically considered the fact that the appellants have not been able to establish that they have purchased the land under the sale-deed from a person, who was having title to transfer such land to the appellants. The Trial Court categorically considered this aspect in paragraph 14 and 15. The Trial Court further considered the statement of other witnesses of the appellants/plaintiffs and in view of the specific admission made by such witnesses, as have been referred in paragraphs 16 and 17 of the judgment of the Trial Court, reached to the conclusion that in fact there was no material available to hold that the appellants have purchased the land from a person, who was having title to transfer the land. Only because the revenue entries were produced before the Trial Court that too from the year 1977, and such entries were corrected by subsequent orders which had attained the finality, the Trial Court rightly reached to the conclusion that in view of the law laid-down by the Apex Court in case of State of U.P. Vs. Amar Singh etc., and further in view of the law laid-down by the Apex Court in case of Durga Das Vs. The Collector and others, no title was transferred to the appellants on the basis of sale-deed, executed in respect of the suit property as the predecessor in title of the appellants/plaintiffs were having no title to transfer the land to the appellants/plaintiffs. However, the Trial Court did not examine the fact with respect to the filing of suit within limitation but holding that appellants have failed to prove their claim, dismissed the suit.

The appellants have preferred the first appeal before the learned lower Appellate Court and have also made applications for amendment in the plaint as also for taking certain additional evidence on record, under Order 6 Rule 17 and under Order 41 Rule 27 of the Code of Civil Procedure, respectively. The learned lower Appellate Court firstly examined the admissibility of the aforesaid interlocutory applications at appellate stage. On detailed consideration by the lower Appellate Court, it reached to the conclusion that such applications filed by the appellants were not maintainable at the stage when applications were filed and secondly the entire claim of the appellants was to be considered in view of the admitted documents and on the basis of evidence adduced by the parties. Even if the additional evidence is accepted, that would not have made any change in the consideration as the documentary evidence was either produced or was admitted to some extent before the Trial Court. It was further found that those entries, which were sought to be produced by making application under Order 41 Rule 27 of the CPC before the learned lower Appellate Court would not have made any change in findings as those revenue entries were not relating to the period of which the claim was made by the appellants. On the other hand, the relevancy of those revenue entries have come to an end soon after passing of the order by the competent revenue authorities for correction of the names in the revenue entries and the said order was affirmed up to the Board of Revenue and the writ petition filed before the High Court was withdrawn without any liberty. Thus, the lower Appellate Court dismissed such applications of the appellants and proceeded to decide the appeal of the appellants on the basis of evidence available on record.

Such an objection is raised in this second appeal that rejection of the applications by the lower Appellate Court was not right. This aspect is considered. The fact remains that the appellants have now started claiming that the title on the suit land by the predecessor in title of the appellants was perfected by virtue of adverse possession over the suit land. It is further contended by the learned Counsel for the appellants that since the M.P. Land Revenue Code (herein after referred to as ''Code'') became applicable in Madhya Pradesh with effect from 1959, the previous rights over the land were protected u/s 158 of the Code and, therefore, by virtue of operation of law, the predecessors in title of the appellants have become the Bhumiswami and their names could not have been removed from the revenue entries. Learned Counsel for the appellants has stated that provisions of subsection [l](c) of Section 158 of the Code specifically provide that every person in respect of land held by him in the Bhopal region as an occupant as defined in the Bhopal State Land Revenue Act, 1932, became a Bhumiswami after coming into force of the Code. According to the learned Counsel for the appellants, the predecessors in title of the appellants were occupants of the land before coming into force of the Code and, therefore, by operation of law, they became the Bhumiswami of the land. Learned Counsel for the appellants further drawn attention of this Court to the provisions of Section 168 of the Code saying that if it is held that such persons were Maurusi Krishak even then them become entitle to conferral of right as Bhumiswami on coming into force of the Code and, therefore, such documents to indicate possession over the suit land were required to be filed. Since such documents were not earlier available, could not be produced, therefore, the learned lower Appellate Court was not correct in rejecting the application of the appellants in accepting the additional evidence produced by the appellants.

Such argument of the learned Counsel for the appellants is devoid of any merit. First of all the plea of perfection of title by adverse possession over the suit land could have been raised only by those, who were claiming such perfection of title. Admittedly those persons were not impleaded as party nor have they come forward claiming such rights in the Court. Secondly, this plea was not raised in appropriate manner in the plaint. If it was the case of the appellants that their predecessors in title have perfected their title over the suit property on the basis of adverse possession, they were required to demonstrate from which date their predecessors in title were in possession and from which date it became hostile, within the meaning of bringing it in the notice of the original owner of the land and how much period have elapsed thereafter so as to make application of principle of adverse possession. On the contrary, the documentary evidence shows that the moment the original owner came to know about recording of the names of predecessors in title of the appellants in the revenue records over the suit land, he filed the revenue case for correction of revenue entries and that revenue entries were thereafter corrected. Such orders of revenue authorities have already attained finality. None of the documents produced by the appellants along with the applications under Order 41 Rule 27 of the CPC were indicative of any such fact that the names of the predecessors in title of the appellants were recorded in the revenue records as occupant in terms of the provisions of Bhopal State Land Revenue Act, 1932 and the said position remained continue till coming into force of the Code. When specifically asked, learned Counsel for the appellants was unable to demonstrate that any such document was available or could be produced.

In view of the aforesaid, if the lower Appellate Court reached to the conclusion that the documentary evidence, which is being produced along with the application under Order 41 Rule 27 of the Code of Civil Procedure, was either available to some extent in the records of the Trial Court or such documents were already admitted, therefore, the learned lower Appellate Court was absolutely right in rejecting the application of the appellants. The same thing has been done before this Court also and some documents have been filed along with an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, being I.A. No. 6391/2011. In the considered opinion of this Court, neither this application is maintainable or acceptable nor the application filed by the appellants before the lower Appellate Court was acceptable and, therefore, such application was rightly rejected. Accordingly, I.A. No. 6391/2011 is also rejected.

The other I.A.s filed by the appellants before the lower Appellate Court were rejected because of the fact that addition of such a fact and a prayer in the plaint was found to be irrelevant as necessary documents with respect to making of such claim were not sought to be added in the plaint. Since such a plea was never raised earlier, there was no such description of claim in the plaint. Therefore, there was no error in rejecting the application under Order 6 Rule 17 of the CPC also.

After dealing with the applications filed by the appellants before the lower Appellate Court, the lower Appellate Court considered the merits of the claim made by the appellants. The lower Appellate Court not only examined the entire evidence but also examined the findings of the Trial Court. The lower Appellate Court reached to the definite finding that the finding recorded by the Trial Court on appreciation of evidence was just and proper. No perversity was found by the lower Appellate Court.

The most important aspect is that the entire claim of the appellants is rest on the title of the predecessor in title of the suit land so purchased by the appellants. It is no where pointed out as to how the claim of title by the predecessor in title of the appellants was perfected by application of principle of adverse possession. As has been discussed herein above, the pleas with respect to the adverse possession is not only to be raised specifically but is required to be proved. Further, this Court cannot interfere with the concurrent findings of facts until and unless the same are perverse or contrary to the material on record. The law in this respect is well settled in case of Mst. Sugani Vs. Rameshwar Das and Another, Gurdev Kaur and Others Vs. Kaki and Others, Prakash Kumar vs. State of Gujarat, (2004) 5 SCC 140 and Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, . It is equally well settled that this Court in exercise of powers u/s 100 of the CPC cannot reappreciate the evidence ( Thimmaiah and Others Vs. Ningamma and Another, It is also equally well settled that where on appreciation of evidence even if two views are possible, this Court in exercise of powers u/s 100 of the CPC would not interfere ( Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, Veerayee Ammal Vs. Seeni Ammal,

Though this Court is not required to examine or appreciate the evidence of the parties in case of concurrent findings of two courts below but to remove any doubt, this Court has also examined the evidence. The two Courts below have rightly reached to the conclusion with respect to the claim made by the appellants on appreciation of evidence. As has been mentioned herein above, the Trial Court has minutely examined the evidence produced by the appellants and has taken into consideration each and every statement of the witnesses examined by the appellants. The entire claim of the appellants is found to be unsustainable in view of the fact that the land in suit was transferred by persons, who were not having title to transfer such land to the appellants. Further it is found that the Trial Court has not considered the aspect of limitation, whether the suit was within time or was barred by limitation. This aspect is considered by the lower Appellate Court on the cross-objection filed by the respondent No. 1. On due appreciation of the facts as have come on record and admitted position that while sending the notice the dispute with respect to the suit property was within the knowledge of the appellants and that the notice Exhibit P-7 though was sent in the year 2005 but in these facts were mentioned, therefore, the dispute was well within the knowledge of the appellants right from the year 1995, as has been admitted by PW-1 in paragraph 22 of her cross-examination, the lower Appellate Court has rightly held that the suit filed in the year 2005 was barred by limitation and was thus liable to be dismissed on this count as well.

As has been stated herein above, the entire claim is made by the appellants only and only on the basis of revenue records. The two Courts below have rightly interpreted the revenue records. Not only the revenue entries have been corrected, their impact has also been considered by the two Courts below. The Apex Court in case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, has categorically held that interpretation of revenue record is not a question of law. If the finding is recorded by the two Courts below on interpretation of revenue records, the High Courts cannot consider the same to be a question of law and cannot interfere in the findings recorded by the Courts below. The Apex Court has categorically held that it is firmly established that the revenue records are not the documents of title and question of interpretation of document not being a document of title, is not a question of law.

On due appreciation of evidence as also minute examination of findings recorded by the two Courts below, this Court is of the considered opinion that the findings recorded by the two Courts below are not perverse or without any evidence available on record. No fault is found in appreciation of the evidence by the two Courts below. No substantial error of law is found in recording the findings by the two Courts below. Consequently, there is no substance in this appeal, the same is dismissed.