Saryu Prasad & Another vs Keshri Prasad & Others

This First Appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 28/03/2007 passed by

Additional Judge, Mauganj to the Court of Additional District Judge, Mauganj, District Rewa, in Civil Suit No.16-A/2004 whereby the learned ADJ

rejected the civil suit filed by the appellants seeking themselves to be declared as the owners of the pond (Talab), the land survey no. 122 area 4.18

acres on which it is built, and survey nos. 121,123 area 2.42 acres, survey no.130 area 2.42 acres, situated around the pond at village Bara, Tehsil

Mauganj District Rewa (M.P.), (hereinafter referred to as “suit landâ€) and to direct the respondents/defendants no. 1 to 7 to not to obstruct them

from using the suit land and for also issuing a mandatory injunction against the respondents no. 1 to 7 that they will remove the hut etc. made by them

upon suit land and to direct them to pay an amount of Rs.60,500/- as compensation.

Notably, during pendency of this appeal, the respondent No.7 defendant of the suit Ramanuj died and his LRs’ were brought on record as

respondent 7(a) and 7(b) by names of Kashi Prasad Tiwari and Raghuvendra Tiwari, vide order dated 01/02/2012. It is further notable that the notice

sent to Shiv Ramdas, Respondent No.8 returned with the endorsement that he had died, but appellants neither deleted his name from the cause title of

the Appeal nor did they bring on record the legal representatives of Shiv Ramdas.

Brief facts of the case are that the appellants/plaintiffs of the suit Saryu Prasad and his son Arvind Kumar, filed a Civil Suit no.16A/2004 before

A.D.J, Mauganj, District Rewa averring they are the owners of the suit land, on which a pond (Talab) is also situated. Initially, suit land belonged to

late Baba Jhuledas and the pond (Talab) was built by him on the suit land. After the death of late Baba Jhuledas, late Parsandas became the owner of

the suit land and remained in possession of the entire land as owner during his lifetime. After the death of late Parsana Das, suit property transferred

to his son Ramvishal and he remained in possession of the entire suit land till his death in the year 1976 when his son Rampal Das @ Rajpal Das

became the owner of the Suit land. During the lifetime of late Ramvishal, the entire suit land was looked after by late Hublal, father of the appellant

no.1 and his brother Gaya Prasad, and they used to irrigate their land by taking water from the pond with the permission of late Ramvishal. In the year

1993, some of the respondents moved an application before the collector Rewa requesting to restrain Gaya Prasad from irrigating his land from the

pond’s water as it was not late Ram Vishal's property, but a public property. During the hearing of that application, it was found that Gaya Prasad

had been irrigating his land from pond’s water for the last 30 years. It is further averred that Rampal sold suit land including the pond to appellant

no.2 Arvind Kumar on 24/08/1984 for a total consideration of Rs 25,000/-and the physical possession of the entire suit land was also given to appellant

no.2 by Rampal and ever since the entire suit land has been in the possession of appellants.

It is further averred that after the death of Baba Jhuladas, in the bandobast of the year, 1924, in the revenue record, the tank as well as the land

were recorded in the name of late Parsandas as the owner. The revenue entries and settlement made in the bandobast of the year 1923 clearly shows

that the tank, as well as land, was self-acquired property and Parsandas got the suit land in inheritance. Rampal, grand-son of late Parsandas executed

the sale deed of the suit land in favour of the appellants, therefore, appellants are the owner of the suit property. Respondents falsely claim that the

suit property is public property. The respondents are intentionally obstructing the appellants from using and cultivating the suit land and also restraining

them from irrigating their land by taking water from the pond. The respondents have built a hut and have also planted several trees on the land. The

drainage of the pond's (Talab) water has been blocked by them. Respondents no.2 to 7 have also destroyed the paddy crop which was sown by the

appellants over the suit land. So, it be declared that the plaintiffs are the owner of the suit land including the pond and respondents no.1 to 7 be

directed not to interfere in the possession of appellants over the suit land and not create hurdles in usage of the suit land by the appellants. A

mandatory injunction also be issued to the effect that the hut which was erected by the respondents over the suit land and the plants planted thereon

be removed by them. Also, a compensation of Rs,60,500/- also be given to the appellants for the damage caused to them by the respondents by

preventing them from cultivating the suit land and irrigating their other land from the pond.

Respondents no.1 to 4, 6, 7 & 10 in their separate written statements opposed the prayer and averred that the suit property was not the personal

property of Baba Jhuledas and the pond was constructed in the suit property by Baba Jhuladas for public use with public support. On the suit land,

there was a temple which has fallen apart and presently only the temple’s platform is left. The idols of Lord Shiva and Lord Hanuman are still

there. The villagers offer water to those idols after bathing in the pond and worship them. The lease of the suit land was given to Baba Jhuledas as

Mahant of the temple to manage the arrangements of the temple. Parsandas was not a nephew of Baba Jhuledas, but his disciple. Parsandas also

never got the rights of the owner in the suit land. The suit land has always been used by the villagers and the water of the pond has also been used by

the villagers for nistar. Rampal Das was not a sannyasi, but a householder. Appellants in connivance with the revenue officials wrongly got the name

of Rampal Das mutated on the suit land. So, on the basis of Rampal's name being recorded in revenue records on the suit land, he had not got any title

in the suit property. Rampal Das had no right to sell the suit property, so on the basis of the sale deed of the suit land, allegedly executed by Rampal

Das in favour of appellant no.2 they do not get any right in the suit land. The appellants were never in the possession of suit land. The respondents

have the right to visit the suit land and worship the idols of the God placed on it and use the pond’s water for Nistar. Appellants have filed instant

suits to usurp the suit property, which is public property. So their suit should be dismissed.

Defendant no. 5 Santosh & 8 Rampal Das @ Rajpal Das in their written statements have admitted the appellants claim.

Appellant no.9/Defendant no.9 M.P. Government did not file any written statement before the trial Court.

Based upon the rival pleadings of the parties, the trial Court framed as many as 18 issues and after recording the evidence of all the parties and

after hearing them all, vide judgement dated 28/03/2007, rejected appellant’s suit, holding that appellants have failed to prove that the suit land was

the personal property of Baba Jhuledas and after his death, Parsandas, Ramvishal, and Rajpal became the owner of the suit property in a succession.

So, on the basis of sale deed of suit land executed by Rajpal in favour appellant no.2 Arvind, he does not acquire any right in the suit property. The

sale deed of suit land allegedly executed by Rajpal in favour of appellant no.2 is also doubtful. Rajpal was not in the possession of suit land so no

possession of suit land was transferred by him to the appellants. The pond situated in the suit land is used by the villagers for their Nistar. The idol of

Lord Hanuman and Lord Shankar have also been placed over the suit land. The villagers offer water to those idols after bathing in the pond and

worship them. The suit land is Government property and used by the villagers as public property. Being aggrieved from that judgment, appellants filed

this appeal.

Learned counsel for the appellants submitted that from the evidence documentary as well as oral produced by the appellants in the suit before the

trial court, it is clearly proven that the suit land was earlier owned by late Baba Jhuledas. He also constructed a pond (Talab) on the suit land. After

his death, the late Parsandas became the owner of the suit land. The revenue entries and settlement made in the year 1923 clearly shows that the

pond as well as the land, was the personal property of late Parsandas. In the revenue record, the suit land was recorded on his name. After the death

of late Parsandas, suit property came to his son Ramvishal and he remained in possession of the entire suit land till the year 1976. After the death of

Ramvishal, his son Rampaldas @ Rajpaldas became the owner of the Suit land and the revenue officials recorded the name of Rajpaldas over the suit

land as owner in revenue records. During the lifetime of late Ramvishal, the entire suit land was looked after by late Hublal, father of the plaintiff no.1

and his brother Gaya Prasad, and they used to irrigate their land by taking water from the pond with the permission of late Ramvishal. Rajpaldas sold

the suit land including pond to appellant no.2 Arvind Kumar. On the basis of sale deed, revenue officials recorded the name of Arvind Kumar on the

suit land in the revenue record. Learned trial without considering all such evidence wrongly rejected the appellants’ suit. He further submitted that

the learned trial Court in its judgement also held that the suit land is Government land, while the government which is a party to the suit has not filed

any written statement claiming that the suit land is Government's property. On the contrary revenue officials recorded the suit land on the name of

appellant no.2 Arvind. Likewise, Rajpaldas who was the defendant in the suit had admitted in his written statement that he executed the sale deed of

the suit land in favour of appellant no.2. Even then without any evidence, the trial court found that the execution of sale deed of the suit land by

Rampaldas in favour of appellant no.2 is doubtful. From the evidence produced by the appellants, it is also proved that the Respondents are

intentionally obstructing the appellants from using the suit land and taking water from the pond. The paddy crop which was sown by the appellants

over the suit land was also destroyed by the respondents. Learned trial Court by ignoring all such evidence wrongly rejected the appellant's suit. So,

the judgement and decree passed by the trial Court be set aside and suit of the appellants be decreed in toto.

Learned counsel of the respondents no.2, 4(i), (ii), (iv), (v), 5, 6 and 7 (a) & (b) has opposed the prayer and submitted that in ceiling case

no.105/B/90/1975-76 instituted against Ramvishal under ceiling act, he had filed an affidavit (Ex.P-22), in which he himself admitted that he only had

77.53 acres of land which is situated at village Koni. Apart from that he has no other land in his personal ownership. The other land held by him is the

property of the temple which is open to the people in general. The income from the lands held by him as the Mahant (priest) of the temple has actually

been used for the benefit of the temple itself. As he is the Mahant of the temple, the lease of land attached to the temple stands in his name, as this

has also been the practice in the past. In that case, he also filed a list (Ex.P- 23) of those lands which were held by him as the Mahant (priest) of the

temple and belonged to the trust, of which suit land is also a part and it is also mentioned that suit property is a pond and is not used for the agriculture

purposes. This clearly shows that Ramvishal himself declared before Collector, Rewa in the ceiling case, that the suit land is not his personal property

and belongs to trust and no cultivation is done on it. Appellant no.1 Saryu Prasad (PW-1) has himself admitted in his statement that the idol of Lord

Hanuman is kept on the suit land. The villagers offer water to that idol after bathing in the pond and worship it and also use the water of the pond for

Nistar. According to the provisions of Section 251 of the M.P. Land Revenue Code, from 6th April 1959, all tanks situated on unoccupied land have

been vested in the State Government. Even, Collector Rewa in the order dated 23/02/70 (Ex.D-14), declared all the lands of Baba Ram Vishal as

surplus except for the 75 acres of land located in village Koni showing that apart from the land situated in the village Koni, all other lands mentioned in

the list (Ex.P-23), including the suit land were not the personal property of Ramvishal. He was the trustee of the suit property, which is public

property. Even then revenue officials wrongly recorded the name of Rampaldas @ Rajpaldas on the suit land, in revenue records. Rampaldas @

Rajpaldas had no right in the suit land. So, appellant no.2 also does not get any title in the suit land on the basis of the sale deed executed by

Rampaldas @ Rajpaldas in his favour. So the trial Court has not committed any mistake in rejecting appellants’ suit. Hence, this appeal should be

dismissed.

For determination of this appeal, the following points arise :-

(i) Whether, the appellants are the owner of the suit land ?

(ii) Whether, the respondents are intentionally obstructing the appellants from using and cultivating the suit land and irrigating their land by taking water from the

pond and whether they also destroyed the paddy crop sown by the appellant over the suit land ?

(iii) If yes, whether the appellants are entitled to get compensation from respondents 1 to 7 ? If yes, how much ?

(iv) Whether, the learned trial Court has committed a mistake in declaring the suit land as Government property, without the respondent filing any counterclaim for

that ? Moreover, without any claim by the State Government, who is a defendant in the suit and without framing any issue on that point.

(v) Relief and cost.

Point No.:-1

The burden of proving the fact that the appellants are the owner of the suit land on which pond is situated was on appellants. Although appellant

no1, Saryu Prasad Tripathi ( PW-1) has deposed in his court statement that initially suit land belonged to late Baba Jhuledas who constructed the pond

on it, with his own investment. After him late Prasandas got the suit land as the heir of Baba Jhuledas and remained in possession of the entire land as

owner during his lifetime. In the settlement of the Year 1924, suit land including the pond was recorded on the name of late Parsandas as owner.

After the death of late Prasannadas, suit property came to his son Ramvishal and he remained in possession of the entire suit land till the year 1976.

After him, his son, Rampal @ Rajpal became the owner of the suit land. Rajpaldas sold the suit land including pond to appellant no.2 Arvind Kumar on

24/08/1984 for a total consideration of Rs 25,000/- and the physical possession of the entire suit land was also given by Rampal to appellants. Since

then, appellants are in possession of the entire suit land as owners. Appellant's witnesses Bala Prasad (PW-2) Parasnath (PW-3) and Ram Yash

Mishra (PW-4) also reiterated the same.

In this regard, appellants have also filed the Jamabandi of samvat 1970-71 to 1999 (Ex.P-10) in which suit land is recorded in the name of

Maharaja Sahab Bahadur and name of Parsandas is mentioned as a cultivator of the land and yearly Jamabandi of the year 1958-59 (Ex.P-11 & 12)

in which name of Parsandas is recorded as the owner of the suit land, Khasra of the year 1977-78 to 1981-82 (Ex.P-14 & Ex.P-32), the copy of

mutation register (Ex.P-27), where it is mentioned that according to mutation order 27-07-81, the name of Rajpaldas has been recorded on the suit

land in place of Parsandas and Khasra entries of the year 1982-83 to 1986-87 (Ex.P-16) in which the name of Rajpaldas has been recorded over-suit

land. They have also filed the sale deed of the suit land, executed by Rampal @ Rajpal in favour of appellant No.2 (Ex.P-7), copy of mutation register

(Ex.P-28) in which it is mentioned that the name of appellant no.2 was recorded over the suit land in place of Rajpal on the basis of sale deed and

Khasra entries of the year 1988-89 to 1991-92 & 1992-93 to 1996-97 (Ex.P-18 & 33) in which the name of appellant no.2 is recorded over the suit

land [in the Khasara (Ex.P-18) it is also mentioned that land survey no.122 is a pond which is used for public Nistar].

However, where ownership of the land on which the pond is also situated is disputed itself, only on the basis of above-mentioned revenue entries, it

can not be said that appellant no. 2 is the owner of the suit land. Revenue records do not confer any title over the property. Entries made in the

revenue records would be subject to a rebuttable presumption. Hon'ble Apex Court in the case of State of Himachal Pradesh vs. Keshav Ram and

Others, AIR 1997 SC 2181 has held that entry in revenue records will not confer the basis for the declaration of title in favour of such party. A

Coordinate Bench of this Court in the case of Vishnu Sharan v. Ajuddhibai, 2004 SCC OnLine MP 167 = (2004) 3 MP LJ 2 5has held that in a case,

based on title, if the source of title is not produced, merely on the basis of khasra entries, it cannot be held that the plaintiff is the Bhumiswami of the

suit property especially when the defendants have seriously raised the objection of the title of the plaintiff. In this case also Respondents have raised a

serious objection of the title of the plaintiff over the suit land.

Vijay Shankar Tiwari (DW-1), Kesari Prasad Tiwari (DW-2), Somdatta Mishra (DW-3), Shivnandan Shukla (DW-4), and Santosh Tiwari (DW-5)

have clearly deposed that Baba Jhuledas had constructed the pond on the suit land. A temple was also constructed by him thereon which has fallen

apart and presently only the temple’s platform is left. The idols of Lord Shiva and Lord Hanuman are still there. The villagers offer water to those

idols after bathing in the pond and worship them. The lease of the suit land was given to Baba Jhule Das as mahant of Temple to manage the affairs

of the temple. The suit land has always been used by the villagers and the water of the pond is used by the villagers for Nistar. Even Saryu Prasad,

appellant no.1 himself admitted in his statement that one Idol of Lord Hanuman has been installed on suit land, people bathe at the pond and offer

water to the idol. It is not the case of the appellants that the said idol has been placed by the respondents on the suit land which shows that it has been

there for a very long time and villagers worship the Idol placed on the suit land.

It is not the case of appellants that Jhuledas or Parsandas or Ramvishal ever cultivated the suit land. Appellant no.1 Saryu Prasad (PW-1) only

deposed that Baba Jhuledas planted trees on the remaining part of the land. The fruits of these trees standing on the suit land were used by the

Parsandas and Ramvishal. But he admitted in his cross-examination that Parsandas and Ramvishal lived in village Koni. From the copy of affidavit

(Ex.P-22) and the list of land (Ex.P-23), which were filed by the Ramvishal in the ceiling case no.105/B/90/1975-76, the interim order dated

05/07/1967 (Ex.D-15) and final order (Ex.D-14) dated 23/02/70 passed by the collector Rewa in that ceiling case, it is revealed that in that case

Ramvishal had admitted before collector Rewa that he only had 77.53 acres of land which is situated at village Koni. Apart from that, there is no other

land in his personal ownership. He also stated in the affidavit that other land held by him is the property of the temple which is open to the people in

general. The income from the lands held by him as the Mahant (priest) of the temple is actually used for the benefit of the temple itself. Since he is the

Mahant of the temple, the lease of land attached to the temple stands in his name, as this has been the practice in the past and if these lands are

recorded on the name of the temple, he would have no objection. This fact is also corroborated by the interim order (Ex.D15), passed by Collector,

Rewa in that ceiling proceeding. (Ex.P-23 ) is the list of particulars of land submitted by Baba Ramvishal in the ceiling case mentioning that the land

included in the list belongs to the trust, so the provisions of ceiling act do not apply on those lands. The suit land is also included in this list and it is also

mentioned in the list that suit land is a pond and not used for agricultural purposes. Although appellants have also filed a copy of the application (Ex.P-

2) allegedly filed by the Ramvishal before collector Rewa in the ceiling case no. 34/B90/77-78 stating that the suit land has been acquired by his

ancestors and it is a pond, so the provisions of the ceiling act do not apply . But that application is not a public document and the appellants have not

proved that document by calling the original application. No date is mentioned on that application. So that document can not be taken into

consideration.

From the documents (Ex.P-22 & Ex.P-23) filed by the appellants themselves and the orders of Collector (Ex.P-14 & Ex.P-15), it is apparent that

Ramvishal himself declared before collector Rewa in the ceiling proceedings that the suit property is not his personal property, it is trust's property and

no cultivation is done on it. So the statement of appellant no.1 saryu Prasad (PW-1), that the fruits of the trees, standing on the suit land was used by

Parsandas and Ramvishal, does not appear to be correct.

Although, Saryu Prasad (PW-1) has also deposed that with the permission of Ramvishal, his father Hubblal and uncle Gyarsi Lal also used the

fruits of the trees standing on the suit land, grazed their cattle there and used water from the pond to irrigate their land. But only on that basis, it can

not be said that the suit land was used by the Ramvishal. From the above discussion, it is clear that suit land was never used by the Parsandas and

Ramvishal for their own purpose.

Appellant no.1 Saryu Prasad Tripathi deposed that Rajpaldas was the son of Ramvishal and grandson of Parasandas. After the death of Prasanna

Das, suit land came to his son Ramvishal and he remained in possession of the entire suit property till the year 1976 when his son, Rampal @ Rajpal

became the owner of the suit land after him. However, the revenue record filed by the appellants shows that the suit land was never recorded in the

name of Ramvishal and has directly been recorded in the name of Rampaldas @ Rajpaldas after Parsandas by order dated 27/07/81, as mentioned in

(Ex.P-27). While, Collector Rewa, vide final order (Ex.-D14) dated 23/02/70, had already declared suit land as surplus land. Then on what basis did

revenue officials mute the suit land in the name Rampaldas @ Rajpaldas. In this regard, appellants have not filed the copy of mutation order.

Although, in another order of Collector Rewa (Ex.P-40), it is mentioned that the suit land and the land area of 14.50 acres situated at village Barati

are the land of ponds, so that land is declared to be free from the ceiling. But this order is contrary to the order (Ex.P-14) passed by the same

Collector, by which Collector Rewa, had declared the suit land and other lands as surplus. So that order also does not help appellants. In that order, the

collector released the suit land on the basis that suit land is the pond and no cultivation is done on it. So, on the basis of that order also it can not be

said that the suit land was ever in the possession of Ramvishal as even after that order, the suit land was never recorded in the name of Ramvishal

during his lifetime.

The suit land was recorded directly in the name of Rampaldas after Parsandas in the year 1981. In the transfer register (Ex.P-28), it is mentioned

that appellant no. 1 Saryu Prasad, certified the family tree of Rampaldas, which shows that appellant no. 1 Saryu Prasad was instrumental in getting

that order passed. Thereafter, on 24/08/1984, Rajpaldas executed the sale deed of the suit land in favour of appellant no.2. For executing the sale

deed, Rajpaldas did not go to the sub registrar’s office. The sub-registrar came to ASLR Yamuna Prasad's house located at Rewa, where

Rajpaldas executed the sale deed (Ex.P-8) of the suit land in favour of appellant no.1. The suit land is situated at village Bara Tehsil Maugang District

Rewa. but the sale deed was not executed before sub-registrar Maugang. In the sale deed (Ex.P-8) it is not mentioned that there is a tank on the suit

land. It is evident from the sale deed that no consideration was given to Rajpaldas by the appellants at the time of execution of said sale deed which

shows that appellant no.1 did all this exercise for usurping the suit land.

Where one part of suit land is submerged under water in the form of a pond, an idol of Lord Hanuman is installed on the remaining part which is

worshipped by the villagers. The water of the pond was used by the villagers for Nistar and the suit land had never been used by Parsandas and

Ramvishal for their personal use and was never in their possession so, merely because suit land was recorded, in the name of Parsandas in revenue

records, it can not be said that Parsandas was the owner of the suit land and after his death, Ramvishal and subsequently Rajpaldas became the

owner of the suit land. Although, in the Jamabandi of samvat 1970-71 to 1999 (Ex.P-10), Prasandas is recorded as cultivator of the land while as

discussed above, disputed land was never cultivated by Prasandas, which clearly shows that said entry is erroneous and it appears that subsequent

entries were done on that basis only. Therefore, only on the basis that Rajpaldas executed sale deed of suit land in favour of appellant Arvind Kumar,

appellants do not get any right in the suit land. So in the considered opinion of this Court, the trial Court has not committed any mistake in holding that

appellants have failed to prove the fact that they are the owners of the suit land.

Point nos. 2 & 3

In this regard, Appellant no.1 Saryu Prasad has deposed that after purchasing the suit land from Rampaldas, they took possession of the suit land

and started cultivating the part of the suit land that was not submerged in water. He used to irrigate his 9 acres of land situated near the pond, from

the pond. In 1992, he sowed paddy crops on the suit land. The respondents no.2 to 7 destroyed the paddy crop. Respondents no.2 to 7 prevented him

from irrigating his land by taking water from the pond and from using the suit land which caused him damage. But appellant no.1 Saryu Prasad has

stated that the respondents no.2 to 7 damaged his Paddy crop in the year 1992, while appellants filed the suit in the year 2004. He, even admitted that

some of the respondents filed Civil Suit against him in the year 1989. There is no explanation regarding the delay in filing of the suit for getting

compensation for paddy crop, which was allegedly destroyed by the respondents in the year 1992 which shows that he is making a false statement in

this regard.

It is also alleged that respondents have prevented the appellants from using the suit land. But, appellants themselves mentioned in para 14 of their

plaint that respondents no.2 to 7, had filed Civil Suit No. 254A/1991 against the appellants before Civil Judge, Class I Mauganj. In that suit, the Civil

Judge issued a temporary injunction against the appellants and directed them not to change the nature of suit land and nor obstruct the villagers in

using the pond’s water for Nistar nor block the entry of water into the pond and maintain the status quo, which shows that the respondents have

prevented appellants by taking recourse of law, which can not be said illegal. Where the appellants, who have no right in the suit land, have been

prevented by the respondents, by taking recourse of law, the appellants are not entitled to get any compensation for the damage caused by not getting

to use the suit land. So this Court holds that appellants are not entitled to get any compensation from respondents.

Point No.4

It appears from the record that the trial Court while considering the issue no.6 i.e. “Whether, Baba Parsandas was the owner and the occupier

of the suit land"" & issue no. 20 i.e. “Whether, the suit land belongs to god†also opined that the suit land is the Government property, while the

State Government, who is a party to the suit, as defendant no.9 has not filed any written statement, claiming the suit land as Government property, nor

have the other respondents filed any counterclaim to declare the State Government as the owner of the suit land. The trial Court has not even framed

any issue in the case regarding ownership of suit land by the State Government. The suit was filed by the appellants to declare them the owner of the

suit land. In the case, the only issue before the trial Court was whether the appellants are the owners of the suit land or not. In these circumstances,

the scope of the trial Court was confined only till deciding whether the appellants were the owners of suit land or not. In the peculiar facts and

circumstances of the case, the trial Court was not required to express its opinion on the point as to who was the owner of the suit land if not the

appellants. In the absence of such an issue and evidence, the trial Court could not have recorded the finding that the suit land belonged to the

Government. In the case, the findings of the trial Court should have been confined only on the issue of whether the appellants were the owners of the

suit land or not. The findings of the trial Court that the Government is the owner of the suit land is merely an opinion of the trial Court, because this

was not an issue before the trial Court. Hon’ble Apex Court in the case of B. Rajagopala Naidu vs State Transport Appellate, AIR 1964 SC 1573

held the Court should not make any obiter observations on points, not directly raised before it for its decision. So in the considered opinion of this court

while giving the findings that the government is the owner of the suit land the trial court has acted beyond the scope of the case. Therefore, the

conclusion of the trial Court on the point cannot be considered sustainable. Thus, this Court is constrained to intervene and holds that the question

whether the Government is the owner of the suit land remains unresolved by this judgment. It will have to be resolved by a competent Court or

authority before which such an issue is raised.

So, appeal is partly allowed and the finding of the trial Court that the Government is the owner of the suit land is set aside with the observation that

the question whether the Government is the owner of the suit land remains unresolved by this judgment. It will have to be resolved by a competent

Court or Authority before which such an issue is raised. However at the same time, this Court held that the trial Court did not commit any mistake in

rejecting the appellants’ claim. So, remaining findings of the trial Court are hereby upheld. Both the parties shall bear their own cost.

Decree may be drawn accordingly.

Certified copy as per rules.