Radhelal vs Vishwanath

Vandana Kasrekar, J—Heard on the question of admission.

The appellant/plaintiff has filed the present appeal against the judgment and decree dated 17/7/2012 passed by 2 nd Additional District Judge, Damoh in Civil Appal No. 11-A/2012 whereby learned first appellate Court has confirmed the judgment and decree dated 29/5/2011 passed by Civil Judge Class-2, Hata, Distt. Damoh in Civil Suit No. 22-A/2009.

The brief facts of the case are that the appellant/plaintiff has filed civil suit seeking relief of declaration in respect of the land situated in Khasra No. 14, old No. 8, Patwari Halka No. 45 situated in Village Chhevlabhagirath, Tahsil Hata, Distt. Damoh admeasuring area 4.73 hectare. It was pleaded by the plaintiff that grandfather of respondent No. 1 namely Gayaprasad and father of the plaintiff namely Jamnaprasad were intimate friends and used to carry on business. In the year 1958, the said land was purchased on an auction in which they agreed that the said land would be purchased in the name of Jamnaprasad and this fact was known to Gayaprasad, Nathuram and respondent No. 1. As the aforesaid land was auctioned in the name of Gayaprasad, therefore, his name was recorded in the revenue record. Thereafter in view of the partition took place in the family of Gayaprasad, the said land was recorded in the name of respondent No. 1. It was further pleaded that in the year 1970, on the ground of adverse possession, the appellant became the owner of the said land, but in the year 1983-84, the land was mutated in the name of respondent No. 1, however, respondent No. 1 was not in possession of the land in question. The appellant/plaintiff has stated that he was in continuous possession of the said land for the past more than 20 years, therefore, he became the owner of the said property by virtue of adverse possession. Thereafter an agreement was executed between the appellant and respondent No. 1 on 5/9/2007, however, as respondent No. 1 failed to comply with the terms and conditions of the agreement and want to dispossess the appellant/plaintiff from the disputed land, the plaintiff/appellant, therefore, filed civil suit seeking relief of declaration and permanent injunction on the ground of adverse possession.

Defendant No. 1 filed written statement wherein he denied the averments made in the plaint. It was specifically pleaded by him that the plaintiff was never in possession of the suit land and the land in question was recorded in his name in the revenue record. Defendant No. 1 has also filed a counter claim in which he has prayed for permanent injunction in respect of land in question.

The trial Court, after hearing both the parties and appreciating the material available on record, has framed five issues and by judgment and decree dated 9/5/2011 dismissed the civil suit of the plaintiff. Against the said judgment and decree, the appellant/plaintiff has preferred an appeal before 2 nd Additional District Judge, Damoh who by the impugned judgment and decree has partly allowed the appeal and dismissed the appeal on the ground of adverse possession and affirmed the findings given by the Courts below of adverse possession. Being aggrieved by the said judgment and decree dated 17/7/2012 the appellant has preferred the present second appeal on the ground that the judgment passed by the first appellate Court is patently erroneous, arbitrary and mala fide. He further stated that learned Courts below have erred in holding that the appellant is not in possession of the suit property and, therefore, no decree on the basis of adverse possession can be passed in his favour.

I have heard learned counsel for the appellant on the question of admission and perused the record as well as judgment passed by the Courts below. I found that the judgments passed by learned Courts below are well reasoned and passed after proper appreciation of oral as well as documentary evidence on record. In the light of the judgment passed by the Supreme Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & another Passed in Civil Appeal No. 8244/2013, the appellant/plaintiff cannot claim title on the basis of the adverse possession. Learned counsel for the appellant has failed to show that how the finding of fact recorded by the Courts below is illegal, perverse or based on no evidence. Thus, no substantial question of law arises for consideration in this appeal.

The Supreme Court in number of cases has held that in exercise of powers under Section 100 of Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are - Shri Hafazat Hussain Vs. Abdul Majeed and Others, AIR 2001 SC 3201 : (2001) 6 JT 591 : (2001) 5 SCALE 104 : (2001) 7 SCC 189 : (2001) AIRSCW 2974 : (2001) 5 Supreme 706 , Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 6 JT 466 : (2012) 4 RCR(Civil) 727 : (2012) 6 SCALE 476 : (2012) 8 SCC 148 : (2013) AIRSCW 2752 : (2012) 4 Supreme 585 and Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, AIR 2012 SC 2586 : (2013) 115 CLT 201 : (2012) 4 CTC 839 : (2012) 6 JT 62 : (2012) 3 RCR(Civil) 702 : (2012) 7 SCC 288 : (2012) AIRSCW 4300 : (2012) 4 Supreme 216 .

For the aforesaid reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed.