Kailash Singh vs Raghuveer Singh

Rohit Arya, J.—This appeal by defendants is directed against the judgment and decree dated 27/1/2004 in Civil Appeal No. 53-A/1990 modifying the judgment and decree dated 30/10/1990 in Civil Suit No. 34-A/1986 to the effect that over the suit land falling in survey No. 236/4 admeasuring 0.010 R.A. and survey no. 238/3 admeasuring 0.209 R.A. in village Bhander, Tahsil Bhander, the then District Gwalior, plaintiffs are found to be in possession as encroachers and it is further ordered that plaintiffs shall not be dispossessed from the suit land except in accordance with the procedure established by the law.

Plaintiffs filed a suit for declaration and permanent injunction inter alia contending that the suit land has all along been in possession of plaintiffs, which is being used as Khaliyan by cordoning the area. Their names are duly recorded as Bhoomiswami in the revenue record since Samvat 2023. As defendants no. 1, 2 and 3 threatened for forcible dispossession and about to do violence on spot to throw away the plaintiffs and their belongings, the instant suit was filed against them.

Defendants filed written statement and denied the plaint allegations. It is submitted that the suit land falling in survey no. 238/3 is a government land. It is submitted that neither plaintiffs have any right, title and interest nor in possession of the suit land. It is denied that the suit land is the ancestral land of plaintiffs, instead it is submitted that defendants no. 1 to 3 are in possession of the land admeasuring 0.031 hectare falling in survey no. 238/3 being their ancestral property, which is being used for Khaliyan purposes. Plaintiffs have manipulated the entries in the Khasra Panchshala in collusion with the revenue authorities. With the aforesaid pleadings, suit was prayed to be dismissed.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon critical evaluation of entire evidence on record with due advertence to the pleadings of the parties, trial court held that the land falling in survey no. 238/3 is the government land and duly recorded in the revenue records as Khaliyan, part whereof admeasuring 0.031 hectare is in possession of defendants no. 1 to 3 since the time of their ancestors. Plaintiffs have fraudulently got their names recorded in relation to the aforesaid land in the revenue records. It is further found that the plaintiffs are found to be in possession of 2/3rd area of survey no. 238/3, however, plaintiffs have failed to establish their title over the aforesaid land. Therefore, in view of the facts that plaintiffs are found to be in possession of the part of survey no. 238/3. The Trial Court passed the order to the effect that defendants no. 1 to 3 are restrained from interfering with the possession of plaintiffs. Plaintiffs being aggrieved by the aforesaid decree to the extent the relief as regards title is denied in regard to 1/3rd portion of the suit land, filed appeal before the appellate court. The first appellate court has re-appreciated the entire evidence on record and confirmed the findings of the trial court as discussed in paras 14, 15 and 16 of the impugned judgment. The first appellate court has further added to the decree passed by the trial court that the plaintiffs are found to be in possession of 2/3rd area of survey no. 238/3, therefore, they shall not be dispossessed from the aforesaid land except in accordance with the procedure established by the law.

Having gone through the impugned judgments on record, this Court is of the view that the courts below have recorded impregnable findings of facts based on proper appreciation of evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. As the first appellate court has already ordered that the plaintiffs are found to be in possession of 2/3rd portion of survey no. 238/3, hence, they shall not be dispossessed except in accordance with the procedure established by the law, no further direction in that behalf is required. The Second Appeal sans merits is hereby dismissed.