Smt.Shanti Bai (Dead) and another vs Himanshu and others

The appellants have filed this appeal under Section 100 of C.P.C. challenging the judgment and decree dated 03.02.2017 passed in RCA

No.2700028/2016 passed by the IInd Additional District Judge Katni, whereby affirming the judgment and decree passed by the Trial Court.

The appellants/plaintiffs have filed a civil suit for declaration and permanent injunction. According to the plaint averments that appellants are the

owner of land bearing khasra No.279/04 New No.279/07, having purchased the same from one Tulsa Bai, area 0.091 hectare of land, through

registered sale deed dated 6/5/1986. the entire description of the property has been given in the sale deed and the map attached with sale deed. In

the sale deed of the appellants, it was clearly mentioned that on the north side of the land there is open land, on the south there is road, on the west

there is High Way and on the east, the house of one Soni was there. Thus, full particulars of the property purchased by the plaintiffs were given

through the sale deed registered in his favour. It is also mentioned in the sale deed of the appellants that on the south there is road and a well and

appellants shall have the right to use the well shown in the sale deed. Thus, the right of easement for use of the well was given in the sale deed to

the appellants. It was pleaded by the appellants/plaintiffs that respondents No.1 and 2 were trying to disturb the possession of the land of the

plaintiffs over the land which forms part of khasra No.279/07 and further that they are also preventing the plaintiffs/appellants from using the well.

It was further contended by the plaintiffs that defendants did not have any right, title of interest on any part of the road situated on the south side of

the land of the appellants as shown in the plaint map and since the road is adjoining to the land of the appellants, the respondents No.1 and 2 on

the basis of a Tabalatnama were trying to disturb the possession of the land hence plaintiffs/appellants have filed a present civil suit.

Respondents No.1 and 2 filed their written statement before the Court and it was contended by them that by virtue of a Tabalatnama executed

by Tulsa Bai in their favour in respect of the part of the land held by her and also the road on the south side of land of the appellant, they are the

owners of the land and appellant has no right to the question their authority under law. It was further contended by respondents that in a

demarcation proceedings held by the Revenue Court, the appellants have encroached upon the land of the respondents No.1 and 2 came out with

a specific case that by virtue of Tabalatnama they are the owners of 0.116 hectares of land. In these premises they prayed for dismissal of the civil

suit.

The Trial Court after framing the issues and recording documentary as well as oral evidence by both the parties arrived at conclusion that the

plaintiffs/appellants failed to prove their claim, accordingly, dismissed the suit filed by the appellants/plaintiffs. Against the judgment and decree

passed by the trial Court, the appellants/plaintiffs have filed First Appeal before the First Appellate Court which was too dismissed by the First

Appellate Court while affirming the judgment and decree passed by the trial Court. Being aggrieved by the impugned judgment and decree passed

by the First Appellate Court, the appellants/plaintiffs have preferred this second appeal on the ground that the findings arrived at by both the

Courts below are illegal.

Learned counsel for the appellants submit that the finding arrived at by both Courts below is contrary to the material and evidence available on

record. It is submitted that by no stretch of imagination Tulsa Bai could not have executed a Tabalatnama having an area of 0.116 Are. Thus, the

Tabalatnama prima facie seems to be forged and fabricated document designed with an aim to encroach upon the land of the appellants. It is

further submitted that the entire demarcation report based on forged and fabricated Tabalatnama was defective as original document, itself, was

faulty because on which the respondents claimed their land which was not possessed by them. It is also contended that apart from this, both the

Courts below should have taken into consideration that since the demarcation report of revenue authorities was not acceptable under law, a fresh

demarcation report should have been called as the same is not binding on the Civil Court. In view of the aforesaid, he prays that while allowing this

appeal, the suit filed by the appellants may be allowed.

I have heard learned counsel for the appellants and perused the judgment and decree passed by the Courts below. From perusal of the record

of both the Courts below, it appears that the judgments are based on due and proper appreciation of oral as well as documentary evidence on

record. Findings recorded by the Courts below are concurrent finding of the facts, which do not require any interference by exercising the powers

under Section 100 of the CPC. Learned counsel appearing on behalf of the appellants fails to show any illegality, perversity in the finding given by

the Courts below. Learned counsel for the appellants has failed to point out that any substantial question of law is involved in this case.

The Supreme Court in number of cases has held that in exercise of powe rs under Section 100 of Code of Civil Procedure, the Court 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 -Hajazat Hussain

Vs. Abdul Majeed and others, (2011) 7 SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8) SCC 148 and Vishwanath Agrawal Vs. Sarla

Vishwanath Agrawal, (2012) 7 SCC 288. In the present case the learned counsel for appellants has failed to show that findings given by the Court

below are perverse.

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