Rambharose Kandele vs State of MP and Another

Rohit Arya, J.—This appeal u/s 100 of CPC by the plaintiff is directed against the concurring judgment and decree dated 17/10/2011 passed in civil appeal No. 9A/2011 by II Additional District Judge, Dabra, District Gwalior affirming the judgment and decree dated 29/04/2011 passed in civil suit No. 47A/2008 by Civil Judge, Class-II, Dabra, District Gwalior whereby plaintiff''s suit for permanent injunction and demolition of boundary wall over the suit land has been dismissed.

Plaintiff filed the suit inter alia contending that the suit land situated in village Ramgarh, Tahsil Dabra, District Gwalior falling in survey No. 581 area 0.190 hectare and survey No. 582 area 0.063 hectare, total 0.253 hectare is of his ownership and possession. In the revenue record, the suit land is duly recorded in the name of Jagannath. Jagannath bequeathed his entire movable and immovable property in favour of plaintiff by ''will'' dated 20/05/1957. As such, the plaintiff acquired Bhumiswami rights and in possession over the suit land. Defendants'' have no right, title and interest over the suit land, however, in the khasra for Samvat 2026 (1969) without notice to the plaintiff and behind his back changes have been made in column No. 10 and kabristan (burial ground) has been endorsed in respect of suit land whereas there is no kabristan on the spot. Plaintiff complained the aforesaid fact of alleged endorsement of kabristan over the suit land by filing case No. 6/94-95/A-6 before Tahsildar, Dabra and the same is still pending consideration. During this period, defendants'' have raised construction of boundary wall over the area of suit land and tried to install a gate despite resistance by plaintiff. On 20/04/1998, the defendants'' have not acceded to the prayer of plaintiff and constructed the boundary wall and, therefore, plaintiff left with no other alternate instituted the instant suit for permanent injunction and further relief of demolition of boundary wall.

Defendant No. 1/State filed written statement and denied the plaint allegations. Inter alia contending that in fact the suit land in the revenue record is recorded as kabristan prior to and at the time of abolition of Zamindari era. Since 1986, neither plaintiff nor his predecessor have ever raised any objection as regards continuous of the aforesaid suit land as kabristan in the revenue record. Over 60 years has been passed by and since then the suit land is used as burial ground for the mohammedan community. With the aforesaid pleadings, prayed for dismissal of the suit.

Defendant No. 2/Municipal Council, Dabra also filed written statement and denied the plaint allegations. Inter alia submitting that since beginning in the revenue record, suit land has been recorded as kabristan which is factually used as kabristan. The boundary wall has been raised and installation of gate over the suit land is legal and for protection of kabristan. It is further submitted that ex-zamindar of village Ramgarh was Ganpat Rao. Neither plaintiff nor his predecessor, Gopiram and Jagannath Prasad were having ownership rights over the suit land. Since Samvat 1996 (1939) suit land is recorded as kabristan but Gopiram and Jagannath Prasad manipulated and got recorded name in the revenue record whereas there was no entry showing possession over the suit land that of plaintiff or his predecessor. With the aforesaid pleadings, prayed for dismissal of the suit.

Trial Court based upon the aforesaid pleadings had framed issues and allowed parties to lead evidence. Trial Court on critical analysis of the pleadings and the evidence brought on record has dismissed the suit. On appeal, the first appellate Court has again re-appreciated the entire evidence on record. First appellate Court, at the first instance discussed as regards the factum of execution of alleged ''will'' in favour of plaintiff by Jagannath on 20/05/1957 as the plaintiff has claimed right of ownership in respect of suit land on the basis of it. "Will" is on record as exhibit P/1. It is not a original document. No steps have been taken to produce the original ''will'' by the plaintiff. It is not reflected from the alleged document (exhibit P/1) as to who are the attesting witnesses thereon and as provided u/s 63 of the Evidence Act (hereinafter referred to as the ''Act''), at least two witnesses have to attest the said document. ''Will'' to be proved by attesting witnesses as regards factum of its execution as contemplated u/s 68 of the Act. Plaintiff has failed to bring on record the evidence of attesting witnesses, as such, the ''will'' was found to be not proved as stated in paragraphs 10 and 11 of the impugned judgment by the first appellate Court. The first appellate Court has also discussed the oral evidence of P.W. 1, Rambharose Khandele as regards his claim that initially the suit land was sold to his grand-father, Jagannath by Ganpat Rao in Samvat 1990 (1933), however, the sale deed is not on record. The alleged ''will'' executed by Jagannath in favour of plaintiff is also not proved. As such, the plaintiff is found to have failed to establish his title, right and possession over the suit land. Upon detailed evaluation of the oral evidence of P.W. 1 Rambharose Khandele, P.W. 2 Rajendra Khandele, P.W. 3 Rajendra Kumar, the first appellate Court has found that claim of possession of the plaintiff is not established over the suit land. On the contrary, after evaluation of oral evidence of defendants'' witnesses, namely; D.W. 1 Satish Singh Chauhan, D.W. 2 Manjar Alam, D.W. 3 Wahid Khan, D.W. 5 Devendra Kumar Pandey, D.W. 6 Kamlesh Kumar Pathak and D.W. 8 Anwar Khan, the first appellate Court has found that about 800-1000 tombs of Muslim community were made at the suit land. On examination of record, it is found that the suit land is recorded as kabristan. As such, concurring with the findings of the trial Court as regards claim of ownership and possession over the suit land of the plaintiff to be not proved and established, suit of the plaintiff has been dismissed.

Having gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that both the Courts below have recorded impregnable findings of fact based on record. The entire gamut of matter is in realm of facts. No question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is accordingly dismissed.