Phullan Bai vs Narayan Das

N.K. Gupta, J.—Heard on admission.

The respondent has preferred civil suit no.80- A/08 before the 3rd Civil Judge Class-I, Chhatarpur for declaration of his title on a land bearing area of 118.55 sq. ft. situated at village Bameetha, Tahsil Rajnagar, District Chhatarpur and also a perpetual injunction was sought against the appellants so that, no interference should be done in his possession. The trial Court vide judgment and decree dated 29.6.2009 decreed the suit. In Civil Appeal No.53-A/09, the 3rd Additional District Judge, Chhatarpur vide judgment and decree dated 3.12.2009 dismissed the appeal. Being aggrieved with the aforesaid judgments and decrees, the appellants have preferred the present second appeal.

Facts of the case in short are that the respondent has filed a civil suit that in survey no.567/01, a portion of the land was sold by Madhav Jagannath Kelkar to the plaintiff and thereafter, he constructed a house on the land and some open place was kept by the plaintiff on the eastern side of construction. The appellants have tried to get the encroachment on some portion of his land and house and thereafter, they moved an application under Section 145 of the Cr.P.C. before the SDM, Rajendranagar. Vide order dated 29.12.1992, the SDM returned the possession of the property to the plaintiff and the defendants were directed to get their title declared. However, the appellants had again tried to construct a wall on the land of the plaintiff and therefore, the plaintiff has filed a civil suit for declaration and injunction.

The appellants in their written statement denied the claim of the plaintiff and it was pleaded that some portion of the land bearing survey no.567/01 was purchased by Manik Chand Jain and the appellants were legal representatives of Manik Chand Jain. After perusal of boundaries marks in both the sale deeds, disputed property was of the defendants/appellants and therefore, it was pleaded that suit be dismissed.

The trial Court after framing the issues recorded the evidence of the parties and thereafter, suit decree filed by the appellants was also dismissed.

After considering the submissions made by learned counsel for the appellants and considering the evidence adduced by the parties before the trial Court, it appears that the appellants challenge the title of the respondent that he did not file any sale deed in his favour. The document Ex.P/14 was not a sale deed and therefore, no title had accrued to the respondent. After considering the evidence, it appears that document Ex.P/14 was nothing, but a contract to sell the property a plot bearing area 53.180 sq. ft. That agreement was executed by Madhav Kelkar in favour of the respondent. Though, no sale deed was executed in favour of the respondent but it would be apparent from other documents for e.g. Panchnama Ex.P/2 that on 9.10.1983, the revenue officers went to the spot and corrected the boundary marks of the plot of the respondent. Name of the respondent was entered on that land by the revenue authorities. When the appellants have moved an application under Section 145 of the Cr.P.C. before the SDM concerned, it was dismissed and the possession of the property was returned to the respondent. The criminal revision filed by the appellants was also dismissed on 20.3.1997. Under such circumstances, the possession of the respondent was proved beyond doubt since 17.2.1985 (date of sale) upto the date of civil suit filed by him and therefore, if no sale deed was done by Madav Kelkar then, still a title was accrued to the respondent on the basis of his adverse possession for more than 12 years against actual owner of the property. Hence, prima facie, the respondent was owner of the property, who constructed the house on the some portion of land and some portion was lying vacant. The respondent has also got meets and bounds of his land verified by Panchnama Ex.P/2 on 9.10.1983.

Under such circumstances, when the appellants have tried to get the possession of some portion of the property, they would have required to show their ownership on the property concerned. Various documents had filed by the appellants before the trial Court. It appears that an entry was made vide order dated 15.11.1982 that the appellants had share of property through their ancestral Manak Chand in survey no.657/1/k. It appears that Madhav Kelkar had sold the property to various persons. Similarly, Vinayak Rao Kelkar had also sold the property to various persons. The entries mentioned in the revenue record Ex.D/6 indicates that the entry was filled on survey no. 657/1/k, which was in the possession of Vinayak Rao Kelkar and therefore, the appellants could not get any rights over the property, which was of Madhav Kelkar initially.

It appears that at the time of purchasing of property, Manik Chand Jain could not get meets and bounds of purchased property verified and therefore at present, due to share of his land in comparison to the area, which was mentioned in the sale deed, the appellants are now claiming the land, which is of the ownership of the respondent. It was for the appellants and their ancestral Manik Chand Jain to get meets and bounds of the property verified by revenue authorities and thereafter, they would have moved the civil suit for declaration of their ownership in the property and their application under Section 145 of the Cr.P.C. was dismissed with the directions that they will get their title declared but instead of doing so, they forcefully tried to get the possession on the property of the plaintiff/respondent. Both the Courts below have rightly decreed the suit file by the respondent. There is no perversity or illegality visible in the judgments passed by the Courts below. There is no substantial question of law arisen, which can be decided in the present appeal and therefore, the present appeal cannot be accepted for final hearing.

Consequently, the present second appeal filed by the appellants Phullan Bai, Rajendra Kumar Jain, Vinaya Kumar Jain, Vijay Kumar Jain and Ajay Kumar Jain is hereby dismissed at motion stage.

Copy of the order be sent to both the Courts below alongwith its record for information and compliance.