SHER SINGH & OTHERS vs STATE OF MADHYA PRADESH & ANOTHER

Substantial question of law which arises for consideration in this Second Appeal is as to "Whether the lower appellate Court, while reversing the finding of the Trial Court committed error of law in holding that the plaintiff has title over the property"?

Relevant facts giving rise to said substantial question of law briefly are that, plaintiff having purchased the suit property bearing Khasra No. 22/5 admeasuring 4 acres situated at Village Garra, Patwari Halka No. 58 Revenue Circle Tahsil Waraseoni District Balaghat, vide registered sale-deed dated 31.3.1983 from one Rajanbai W/o Jhanaklal brought a suit in the year 1989 for possession, permanent injunction and for compensation on the plea that the defendant had encroached upon plaintiff''s 0.14 acre land and has taken recourse to cultivation thereover. It was contended, inter alia, that after purchasing the property a demarcation was carried out in August 1983; whereon the suit land was found to be of the part of the land purchased by the plaintiff. However, the same was encroached upon by the defendant led the plaintiff to file subject suit.

Defendant contested the claim. Written Statement was filed; wherein the defendant categorically denied of plaintiff purchasing the suit property vide sale-deed dated 31.3.1983 and being placed in possession thereof. It was denied that any agricultural activity was carried on by the plaintiff over the suit property in May 1983. It was also denied that the defendant caused any hindrance in the alleged agricultural activities carried out by the plaintiff. It was also denied that any demarcation was carried out by Naib Tahsildar. The defendant further denied of of encroaching 0.14 acre of land, said to be belonging to plaintiff. It was further denied that the plaintiff initiated a proceeding under Section 250 of Madhya Pradesh Land Revenue Code forming subject matter of Revenue Case No. 1 A/1970. It was denied that any order was passed on 4.8.1986. The defendant further stated that the land in question is not of the ownership of the plaintiff. It was further denied that the defendant after encroaching upon land of the plaintiff cultivated the same and that, any loss has occasioned to the plaintiff because of alleged encroachment by the defendant. By way of additional submission the defendant stated that at no point of time plaintiff got the land demarcated and the defendant is in possession over 2.35 acres of land of Khasra No. 21/4 which he purchased from one Keshev Rao Pradhan in the year 1965. It was stated that the land was purchased after due permission by Collector, Balaghat which was granted in the year 1970 and after getting it demarcated the defendant is in possession over the land bearing Khasra No. 21/4 admeasuring 2.35 acres. It was urged that since 1965 the defendant is in possession thereof and the portion of land which the plaintiff claimed to be of his is a land which is part of 2.35 acre of Khasra No. 21/24. It was contended that plaintiff had purchased the land out of Khasra No. 22 and under the garb thereof has filed the suit claiming possession over the property belonging to the defendant. It was further contended that against the order passed by Tahsildar, Waraseoni on an application under Section 25 of the Code, 1959, Defendant filed an appeal before the Sub Divisional Officer, Waraseoni, who set aside the order passed by Tahsildar. Whereagainst the plaintiff preferred a second appeal which was dismissed by Additional Commissioner, Jabalpur Division, Jabalpur. It was contended that the plaintiff having failed to get any relief from the Revenue Authorities has filed a suit for possession over the land, which does not belong to him. It was further contended that even prior to the sale of land in question to plaintiff by Rajanbai the defendant has been in possession over the suit property which was part of his land purchased in the year 1965. It was urged that plaintiff without getting the land demarcated got sale-deed executed in his favour on 31.3.1931 which ipso facto does not create any right in petitioner over 0.14 acres. It was further contended that the plaintiff be put to strict proof that he has title over the suit property admeasuring 0.14 acres.

Trial Court framed following issues:

"VERNACULAR MATTER OMITTED" 5. Parties went to Trial.

Since the core issue has been as to whether plaintiff is owner of the land 0.14 acre burden was on plaintiff to have established the same. Relying upon sale-deed dated 31.3.1983 (Ex. P-1) plaintiff who examined himself as plaintiff witness No. 3, it was stated in paragraph 5 that before purchasing the land he got the land demarcated by Patwari though he did not remember the name of said Patwari. It was further stated that after execution of sale-deed he went on field within one hour and thereafter with the help of certain Labours started developing the field for cultivation. Replying to the question as to why the name of neighbouring farmer does not find mention in the map filed with the sale-deed the plaintiff stated that he was not aware that the name of defendant is Keshev Rao. Instead he had the information that it is Kesev. He further states that as an objection was raised by the defendant, he filed application for demarcation. The demarcation was done after one week from filing an application. The demarcation was done with the help of Chanda and map whereon the place marked as A to A in Ex.P-2 the defendant was found in possession thereof. He states that the demarcation order was not challenged. In paragraph 11, 12 and 13, the plaintiff categorically stated:

"VERNACULAR MATTER OMITTED" 7. Plaintiff witness No. 1, who had taken land on lease for cultivation, in his evidence stated that the suit property was in possession of one Rajan where-after it was possessed by one Holi. However, he denies the fact as to since when the defendant Keshev Rao was in possession over the suit property. There is no denial of the fact that Keshev Rao defendant has been in possession over the suit property. Plaintiff witness No. 2 in paragraph 1 of his Chief has stated that defendant is in possession over the suit land over a period of 8 to 9 years. This fact is evident from paragraph 1 of the statement wherein he categorically states:

"VERNACULAR MATTER OMITTED"

On the contrary defendant examined himself; wherein he stated that he is owner of land bearing Khasra No. 21/4 admeasuring 2.35 acres and that the land purchased by the plaintiff bears Khasra No. 22/5. He further stated that he has not encroached upon the land belonging to the plaintiff but is in possession over the land which he purchased in the year 1965. It was contended that from the date of purchase he has been cultivating the land in question. In paragraph 6 of his deposition the defendant stated that it was after one year from the date when the plaintiff purchased the property he (defendant) came to know that 0.14 acres land demarcated in his favour. Other defendant witnesses also supported the defendant,

Trial Court on the basis of material evidence, oral and documentary, on record negatived the claim and dismissed the suit. In respect of issue No. 1 and 2, the Trial Court found that the plaintiff could not establish his title and ownership over the suit land admeasuring 0.14 acre. The Trial Court observed:

"VERNACULAR MATTER OMITTED"

The Trial Court further observed that plaintiff could not establish defendant has encroached upon his part of land.

The appellate Court; however, reversed the finding.

While dwelling upon the issue as to title and ownership of plaintiff over the suit property the Appellate Court observed:

"VERNACULAR MATTER OMITTED" 12. These finding arrived at by the First Appellate Court are based on cogent material evidence, oral and documentary, on record including the demarcation report which was carried out by the Revenue Authorities at the instance of plaintiff, which as rightly observed by the Fist Appellate Court has never been questioned by the defendant as would create any doubt on the finding arrived at in said demarcation that the defendant is in occupation over 0.14 acre being part of land purchased by the plaintiff vide sale deed dated 31.3.1983. The First Appellate Court is absolutely justified in returning a finding that the defendant did not lay any foundation to establish that he has perfected the title by adverse possession over the suit property.

In view whereof the First Appellate Court is justified in reversing the judgment and decree passed by the Trial Court and decreeing the suit with a direction to defendant to handover the vacant possession of suit property admeasuring 0.14 acres being part of Khasra No. 22/5. The substantial question is answered accordingly that the Appellate Court did not commit any error in arriving at a finding that the plaintiff is the owner of suit land admeasuring 0.14 acre which is part of Khasra No. 22/5.

Appeal fails and is dismissed. No costs.