Pahalwan Singh and Others vs Swaroop Alias Ramswaroop and Others

U.C. Maheshwari, J.—In view of listing the case I.A. No. 534/13, respondent''s application for early hearing does not require any further consideration, hence the same is hereby disposed of. Appellant''s Counsel is heard on the question of admission.

The appellants/defendants have preferred this appeal u/s 100 of CPC challenging the sustainability of the impugned judgment dated 19-1-2011 passed by the Additional Judge to the Court of 1st Additional District Judge, Sironj in Civil Regular Appeal No. 46-A of 2010 affirming the judgment and decree dated 16-9-2008 passed by the Civil Judge, Class I, Lateri in COS No 5-A/06 whereby the suit of the respondents filed against the appellants for perpetual injunction with respect of the land described in the plaint has been decreed.

The facts giving rise to this appeal in short are that the respondent Nos. 1 and 2 herein were granted Patta on Government land bearing Survey No. 6/1/8 area 1.000 hector situated at Village Sayeed Nagar by the Competent Authority of the State vide dated 22-5-2002. Pursuant to such Patta the possession of the land was also handed over to the respondent No. 1 on 18-8-2003 and since then they are coming in possession of the same. On creating hindrance by the appellants herein then the impugned suit for perpetual injunction restraining the appellants to interfere in the possession of the respondents with respect of the disputed land was filed.

In the written statement of the appellants by denying the right of the respondent Nos. 1 and 2, so also the proceeding regarding allotment of Patta in their favour, it is stated that initially the land of survey No. 6 area 17 hector was allotted by the Tehsildar to various personal, against grant of such Patta some appeal was filed before the SDO, in which allotment order of the Tehsildar was set aside In addition to it, it is also stated that they are in possession since last 40 years and they could not be dispossessed from their settled possession either by the respondent or any other authorities. With these submission the prayer for dismissal of the suit was made.

In the light of the pleadings of the parties, the issues were framed and evidence were recorded, on appreciation of the same by holding respondent Nos. 1 and 2 the patta holder of the disputed land from the respondent No. 3, their suit for perpetual injunction was decreed against the appellant. Being dissatisfied with such decree the appellants herein filed the appeal u/s 96 of CPC before the District Court. On consideration by affirming such judgment and decree of the Trial Court the same was dismissed, accordingly the respondent Nos. 1 and 2 were concurrently held in possession of the disputed land. Such concurrent findings of the Courts below are under challenge before this Court.

While arguing the case on admission the learned Counsel of the appellant after taking me through the records of the Courts below along with the impugned judgment argued that the appellants being in settled possession of disputed land since last 40 years, their possession could not be disturbed or interfered either by the respondent No. 3-State or under its authority by respondent Nos. 1 and 2 on the basis of the Patta unless they are dispossessed by following the prescribed procedure of law. In continuation, he said that mere on the basis of the alleged Patta issued to the respondent Nos. 1 and 2 such respondents could not be deemed or presumed to be in possession of the same. In such premises, there is sufficient circumstance to frame the substantial question of law in the matter and prayed to admit this appeal on the proposed substantial question of law mentioned in the appeal memo.

Having heard keeping in view the arguments, I have carefully gone through the record of the Courts below along with the impugned order so also the substantial question of law proposed by the appellants.

It is apparent fact that from the initial stage of the impugned suit till today no documentary evidence has been produced or proved by the appellants on record to show that from which source or on the basis of which document they have come in the possession of the disputed land. It is also apparent on record that in any of the khasra entries in which the name of the appellants or any of them was recorded in column of Bhoomiswami or in kafiat as possession holder, is neither produced nor proved on record. So in the lack of such documentary evidence in support of the present appellants it could not be said that at any point of time the appellants remained in possession of the disputed land or any part of it. It is undisputed fact in the matter that initially the disputed land was belonging to the respondent No. 3 and under some provision of RBC, the same was allotted to the respondent Nos. 1 and 2 as mentioned above and pursuant to such allotment the possession of the land was also handed over to them, the relevant documents in this regard not only produced on record but the same have been proved by them, so in view of such admissible document of respondent Nos. 1 and 2, only by relying the oral testimonies of the appellants the Court below could not have hold the possession of the appellants over the disputed land. In such premises, the approach of the Courts below appears to the based on sound appreciation of the evidence as well as the legal position. I have also not found any circumstance to frame the question of law rather than substantial question of law u/s 100 of CPC.

So far the question of law proposed by the appellants'' Counsel on the basis of Section 248 of M.P. Land Revenue Code is concerned, such provision is very different and could be invoked by the State Authority for taking the possession of the Government land from the encroacher, which is not the subject matter of the impugned suit and, therefore, there is no circumstance to frame such substantial question of law in the matter.

Apart the above, the concurrent findings of the Courts below on the question of possession in favour of the respondent Nos. 1 and 2 being finding of fact could not be interfered u/s 100 of CPC in the light of the dictum of the Apex Court in the matter of Kishanlal Biharilal Maheshwari and Others Vs. Ramrao Hanumant Rao Patil and Another, , in which it was held as under:--

We feel that it may not be necessary to go to that extent because the amendment, if liberally construed, as indicated above includes the possession by plaintiff No. 1 and, therefore, there was no error of law in the finding of the Court below so as to invoke the second appellate jurisdiction of the High Court. We might mention hereby that the Trial Court had given a categorical finding that defendant No. 2 had no title to the land in question nor was he in possession of it and that plaintiff No. 1 was in possession of the property at the date of the suit. In this connection, the Trial Court observed as follows:--

Thus on the whole, it is difficult to hold that defendant No. 2 was in possession and that too as owner or adversely to the plaintiffs and Radhabai. Hence, for this, and for reasons already noted, it is more probable that the plaintiff No. 1 was in possession of the property at the date of suit.

On arising the occasion aforesaid dictum is further followed by this Court in the matter of Ram Manohar Patel Vs. Ram Prasad Patel and Others, . In view of the aforesaid discussion and legal position, I have not found any substance or situation in the matter giving rise to any question of law rather than substantial question of law, consequently, this appeal being devoid of any merits is hereby dismissed at the stage of motion hearing.