Munnalal Mishra vs State of M.P and others

This Second Appeal preferred against the judgment and decree dated 13.7.1998 rendered by 3rd Additional District Judge, Mandsaur in First Appeal No.4-A/1995, was admitted on 24.9.1998 on the following substantial question of law :- "Whether the finding of the appellate Court below regarding possession and dispossession is perverse being contrary to the documentary evidence (Ex.D1)?"

Necessary facts for unfolding the controversy involved in the lis, briefly stated, are that on 20.7.1982, respondent - Rameshwar (since deceased) and his son Gopal (respondent No.2) filed Civil Suit No.10-A/1991 for perpetual injunction with regard to agricultural land measuring .253 Hect. being part of Survey No.166, Village Sanavda, Tehsil Malhargarh, District Mandsaur (hereinafter, for short, ''the disputed land'') with the averments that

the plaintiffs are recorded ''Bhoomiswami'' of agricultural land bearing Survey No.166 (supra), which comprises of two parts respectively falling on Eastern and Western side of a trench which divides the land of Survey No.166. It was further averred that the defendants (appellants herein) had encroached over the Western part of the land, therefore, a perpetual injunction restraining them from interfering with the possession of plaintiffs over the disputed land be issued. During pendency of the suit, by way of amendment, it was further averred that the appellants/defendants have illegally encroached over the disputed land, therefore, vacant possession of the same should also be restored to the plaintiffs.

The defendants though admitted that the plaintiffs are recorded ''Bhoomiswami'' of the disputed land, which forms part of Survey No.166; denied rest of the averments and averred that they have purchased the disputed land on 18.5.1982 from Ramsingh along with agricultural land of Survey No.166. It was also averred that Ramsingh was in possession of the disputed land since the time of his father and, therefore, defendants being in continuous possession of the disputed land, are enjoying the same as its owner and it was further averred that, as the plaintiffs are not in possession of the disputed land for more than 12 years, therefore, the defendants have perfected their right and title over the disputed land by way of adverse possession, hence, the suit for possession and injunction is liable to be dismissed.

On the basis of pleadings, as many as 7 issues were settled. The learned trial Court on appreciation of evidence adduced by the parties dismissed the suit holding that the plaintiffs

have not been able to prove that they are ''Bhoomiswami'' of the disputed land and that the defendants threatened to dispossess them and ultimately dispossessed them from the disputed land. The learned trial Court was of the view that though the suit is within limitation, however, the plaintiffs have not been able to prove their title and possession.

On an appeal being preferred by the plaintiffs, the learned appellate Court, vide the impugned judgment, reversed the judgment passed by the learned trial Court holding that admittedly, the plaintiffs are recorded ''Bhoomiswami'' of the disputed land and that the appellants/defendants have not been able to establish that they have been in open, continuous, hostile and uninterrupted possession over the disputed land for more than 12 years, therefore, it cannot be said that they have acquired any right or title over the disputed land by adverse possession, hence, the plaintiffs respondents are entitled for restoration of possession as well as issuance of perpetual injunction as sought by them.

As stated hereinbefore, this appeal was admitted on the substantial question of law, which relates to effect of Ex. D/1, which is a certified copy of the application preferred by Rameshwar u/s. 250 of M.P. Land Revenue Code, 1959 against Ramsingh and his father Bhupalsingh, averring therein that they have illegally taken possession of the disputed land on 10.6.1979, therefore, the possession of the disputed land be restored to the plaintiffs, who are recorded ''Bhoomiswami'' of the disputed land.

It is contended by the learned counsel for the appellants

that from Ex. D/1, it is luculently clear that on 10.6.1979, Ramsingh and his father Bhupalsingh were in possession of the disputed land. It is further submitted that the appellants had purchased on 18.5.1982 the agricultural land bearing Survey No.166 and at the same time, possession of the disputed land was also given by Ramsingh to the appellants, therefore, they being in continuous possession, ought to have been held as owners of the same by way of adverse possession and that the learned appellate Court has committed a grave error of law and facts in reversing the judgment and decree passed by the learned trial Court.

Per contra, it is submitted by the learned counsel for the respondents that admittedly, the plaintiffs are recorded ''Bhoomiswami'' of the disputed land. Even if, for the sake of argument, it is accepted that they were dispossessed by the appellants/defendants on 10.6.1979 from the disputed land, still the total period prior to filing of the suit being less than 12 years, it cannot be said that the appellants have perfected the title by adverse possession.

Heard the learned counsel for the parties and perused the record.

Ex. P/1 is the certified copy of Khasra entry for the year 1976-1977, in which, name of Rameshwar is recorded as ''Bhoomiswami'' of the disputed land as well as person in possession of the same. Though, it is claimed by the appellants that they were in possession of the disputed land since the time of Bhupalsingh - the father of Ramsingh, and that, they were in

continuous possession of the same over 40 years, however, they have miserably failed to establish their possession for such a long duration or for duration which is necessary under the law for perfection of title by way of adverse possession, inasmuch as they have not adduced a single document showing their possession over the disputed land for such a long duration. Had the appellants/defendants been in long possession for a period of 40 years, there would have been number of entries in their favour in the revenue records. Absence of any such evidence clearly goes against the appellants/defendants.

Further, it is noticeable that Ramsingh, who was examined as DW-2, has deposed that the disputed land was purchased by his father - Bhupalsingh from one Mohanlal Damani, meaning thereby, as per Ramsingh, the title in the disputed land was acquired by his father Bhupalsingh under a saledeed and thereafter, as per appellants, Ramsingh executed agreement to sale Ex. D/7 in favour of the appellants. In this connection, it is apt to state that Ramsingh (DW/2) or for that matter, the appellants have not brought any document before the Court indicating that the disputed land was purchased by Bhupalsingh from Mohanlal Damani or that, Mohanlal Damani was ''Bhoomiswami'' of the disputed land at any point of time. Further, Ex. D/7 is an agreement to sale. In fact, no document with regard to sale of the disputed land as such was executed by Ramsingh in favour of the appellants, therefore, acquisition of rights over the disputed land by way of purchase is also not established.

In view of the aforesaid, it cannot be said that the learned appellate Court has committed any illegality or factual error in decreeing the suit in favour of the respondents plaintiffs. Therefore, this appeal having no merit, deserves to be and is hereby accordingly dismissed.