Mangaldeen Kori vs State of M.P.

U.C. Maheshwari, J.—On behalf of the appellant/plaintiff, this appeal is preferred under Section 100 of C.P.C. being aggrieved by the judgment dated 4.10.2005 passed by the first Additional Judge to the Court of 1st Additional District Judge, Satna in Civil Regular Appeal No. 79-A/2005 affirming the judgment and decree dated 29.7.2003 passed by the Civil Judge Class-I, Nagod, District Satna in Civil Original Suit No. 4-A/1995 whereby suit filed by the present appellant against the respondents for declaration and perpetual injunction with respect of some land on the ground of perfecting the title by adverse possession was dismissed.

Appellant''s counsel after taking me through the record of both Courts below alongwith impugned judgment argued that the Courts below have not appreciated the evidence with proper approach. Keeping in view the provisions of Article 64 of the Limitation Act on proper appreciation of the same, the trial Court ought to have decreed the suit and declared the appellant to be the Bhoomiswami of the disputed land and consequently to protect his possession ought to have issued permanent injunction against the respondents restraining them to interfere in the possession of the appellant with respect of the disputed land. In continuation, he said that the appellant proved all necessary ingredients to prove the adverse possession before the trial Court by way of the evidence through witnesses but contrary to his evidence, on appreciation by relying on evidence recorded by the private defendants, his suit has been dismissed by the trial Court. On filing the appeal before the subordinate appellate Court, the appellate Court also without considering such material questions in the matter in the light of the provisions of Article 64 of the Limitation Act has dismissed the appeal by affirming the judgment and decree of the trial Court. In continuation, by referring the substantial questions of law proposed in the appeal memo, he said that this appeal requires hearing on merits on such substantial questions of law and prayed for admission of this appeal by framing the same.

Having heard the counsel at length, keeping in view the arguments, I have gone through the record of both the Court below. It is undisputed fact on record that the disputed land was remained recorded in the name of the appellant or in the name of his forefather. He has filed the impugned suit by stating his exclusive possession since long with a further averment that on some part of the land, he has also constructed some house. I am of the considered view that in the lack of documents with respect of title and source of possession, the appellant could not have been declared by the trial Court as well as the appellate Court to be Bhoomiswami or the owner of such land. In such premise, stated possession of the appellant over the disputed land was contrary to law, therefore the plea of adverse possession was not available to the appellant to protect such possession or to get the decree of declaration and perpetual injunction on the basis of such possession. There is a concurrent finding of both Courts below holding that the present appellant is neither in legal possession of the property nor having any title over the same in any manner either by adverse possession or otherwise and in such premise his suit has been dismissed by the trial Court and the appellate Court on its turn by affirming such judgment and decree of the trial Court dismissed the appeal of the appellant. I am of the considered view that the aforesaid findings of both Courts below based on appreciation of evidence being finding of fact could not be interfered at this stage under Section 100 of C.P.C. by framing any of the substantial questions of law proposed by the appellant in the appeal memo. So firstly on this ground, the impugned appeal deserves to be dismissed at initial stage of admission.

Apart the aforesaid, in the case in hand, the findings of the appellate Court on the question of adverse possession being based on appreciation of evidence and related to the limitation in view of the principles laid down by the Apex Court in the matter of Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, could not be interfered under Section 100 of the CPC. In cited case, it was held as under:-

"The High Court in exercise of its power under S. 100 of the Civil P.C. cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the First Appellate Court. The finding on the question of limitation recorded by the First Appellate Court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the High Court in the exercise power under S. 100 of the Civil P.C."

Apart the aforesaid, in view of subsequent decision of the Apex Court in the matter of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, , this suit of the appellant itself is not entertainable. In this cited case, it was held as under:-

"No declaration of title can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against him, arraying as defendant that his adverse possession can be used as a shield/defence."

In view of the aforesaid cited decisions of the Apex Court, if the case at hand is examined then it is apparent that the appellant/plaintiff approached to the trial Court with the pleading that he has perfected the title over the disputed property by adverse possession and in view of the cited case, the person who is claiming title over the property on the basis of the adverse possession has no authority to file the civil suit, so in such premise also till the extent of the declaration, the suit of the appellant was not tenable and so far as perpetual injunction is concern, in view of the concurrent finding of both the Courts below on such question, the same could not be deemed to be a question of law rather than substantial question of law at this stage.

In view of the aforesaid discussion, I have not found any error, irregularity, illegality or perversity in any of the impugned judgments of the Courts below giving rise to any question of law rather than substantial questions of law requiring any interference at this stage under Section 100 of the C.P.C. Consequently, this appeal being devoid of any merit deserves to be and is hereby dismissed at the stage of motion hearing.

There shall be no order as to costs.