Kishora vs State of M.P.

M.K. Mudgal, J.

Heard on the question of admission.

The appellant/plaintiff has filed this appeal u/s 100 of the CPC being aggrieved by the judgment and decree dated 10.3.2011 passed by the Court of District Judge Vidisha in Civil Appeal No. 77A of 2010, confirming the judgment and decree dated 4.1.2010 passed by the court of II Civil Judge Class I, Vidisha in Civil Suit No. 9A of 2009 whereby, the suit filed by the plaintiff for declaration and permanent injunction in respect of the suit land bearing Survey No. 68 area 5.195 Hectares situated in village Amachavar Distt. Vidisha which hereinafter would be referred to as "disputed land" was dismissed. In this appeal, the appellant is referred to as "plaintiff" and the respondent to as "defendant". The facts in brief of the case are that the plaintiff has been openly and uninterruptedly in possession of the disputed land for more than 30 years and hence, he has acquired Bhumiswami rights over the said land on the basis of adverse possession. It was further pleaded that on 15.11.2007 village Patwari threatened to dispossess the plaintiff of the suit land and to ruin the crop standing on the said land. Hence, the plaintiff filed a suit against the defendant for the relief stated herein above.

The defendant/state by filing written statement denied the plaint averments stating that the plaintiff was never in possession of the suit land and never planted fruit trees on the said land. Existence of his house on the disputed land was also denied. It was averred that the disputed land was reserved as grazing land which was encroached upon by the appellant who was ordered to be dispossessed on 21.10.2007 in Case No. 32A-A/68/-5-06. Therefore, no Bhumi Swami rights have accrued to him on the basis of adverse possession. Hence, the present suit filed by the plaintiff being based on the wrong facts is not maintainable and liable to be dismissed.

After framing of the four issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendant as stated above.

Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above.

Heard learned counsel for the appellant and perused the record.

The learned counsel for the appellant submits that both the learned courts below have not properly considered the evidence produced by the plaintiff, owing to which the judgments passed by them deserves to the set aside.

On perusal of the record and the judgments of both the courts, it becomes clear that the plaintiff has claimed his title on the basis of long possession for more than 46 to 47 years and hence have the title on basis of adverse possession, however, the plaintiff has not clarified in his pleadings as to when his possession became adverse. The documents produced by the plaintiff do not support his possession for more than 45 years. On perusal of the Khasra entries, it is found that the said disputed land is of the ownership of the government and status of the plaintiff has been that of an encroacher of the land for which he was fined and evicted by the revenue authorities. A trespasser who was fined and dispossessed on the government land cannot get any right in virtue of adverse possession against true owner. The story put forth by the plaintiff regarding adverse possession seems to be baseless and have no credence. Both the learned courts below having meticulously considered the evidence on record have drawn the conclusion that the plaintiff has utterly failed to have proved his title and legal possession. No injunction can be granted to protect the illegal possession. The findings recorded by both the courts are justified and no inference is required in them. Considering the concurrent findings of both the courts and no substantial question of law being found, the appeal being devoid of merit and substance deserves to be dismissed. Therefore, the appeal is hereby dismissed.

No order as to the cost.