State of M.P. vs Ujiar Singh Lodhi

Appellants/defendants have preferred this Second Appeal under Section 100 of C.P.C. against the judgment and decree dated 25.07.2006 passed by II Additional District Judge (Fast Track) Maihar, District Satna in Civil Appeal No.69-A/2003, by which learned appellate Court has confirmed the judgment and decree dated 18.01.2005 passed by First Civil Judge, Class-I, Maihar, in Civil Suit No.31-A/2001, by recording concurrent findings.

The case of respondent/plaintiff in brief is that the disputed land khasra Nos.19 and 20 area 19 bigha situated at village Lakhwar is self acquired property of plaintiff. He is cultivating the land since 1946 - 47 with the permission of erstwhile Maihar State. Later on he was recorded as Gairhaqdar Kashtakaar and after coming in force of M.P. Land Revenue Code, 1959 he became Bhumiswami of disputed land. Defendants No.1 and 2 are nephew of plaintiff. In the year 1950 the partition of joint family property was taken place between plaintiff and his brothers. Thereafter they all are cultivating their land separately. The defendants have no right, title or possession over the disputed land. They are trying to interfere with possession of the plaintiff. Therefore, the plaintiff filed a suit for issuance of prohibitory injunction against them.

3 The appellant/defendants in their written statement denied the averments made in the plaint and pleaded that the disputed land is their ancestral property. The land was obtained for cultivation by grand-father of defendants namely Nakchhedi Patel from erstwhile Maihar State. Since plaintiff was elder son, therefore, it was got allotted on his name. The disputed land was under cultivation by all the members of joint family as joint family property. In the family partition of 1963 - 64 the half part of disputed land was allocated to defendants'' father and half land was given to other uncle Ram Garib. After partition defendants are in possession of the land. Plaintiff always assured them to transfer the land in the revenue record on the name of defendants. Actually defendants are in possession of disputed land, therefore, the suit is liable to be dismissed.

Both the parties have adduced evidence in their support. The trial Court by passing judgment and decree dated 18.01.2005 arrived at the conclusion that the plaintiff is owner of the disputed land and at the time of filing of the suit, he was in possession. Therefore, suit was decreed in his favour and perpetual injunction has been issued against the defendants restraining them to interfere with possession of plaintiff. Against, the judgment and decree of trial Court defendants preferred First Appeal, which is also dismissed by appellate Court vide judgment dated 25.07.2006 recording concurrent findings against the defendants.

It is submitted by the learned counsel for the appellant that it is not disputed that the disputed land was obtained in the year 1946 - 47 from erstwhile Maihar State. At that time the family of plaintiff and defendants were joint. Thus, the land was acquired by the joint family and it remains as joint family property. The land was recorded jointly upto the year 1963 - 64, thereafter the family partition took place and disputed land was partitioned and half of the land given to father of defendants and another part was given to Ramgopal. Thereafter, they are continuously cultivating the disputed land as allocated to them in partition. This fact is also recorded in Khasra Panchsala (Ex.D/8, D/9 and D/10). The defendants are paying the land revenue and irrigation charges. The Courts below have failed to take into consideration the evidence and documents adduced by the defendants and arrived at the erroneous and perverse findings. The appellants are in possession of the land, therefore, suit is liable to be dismissed.

Heard arguments.

For the purpose of grant perpetual injunction it is to be seen whether at the time of filing of suit the plaintiff was in settled possession of the disputed land. In this regard the plaintiff Ram Sudharshan (PW-1) deposed that he had acquired the disputed land in the year 1946 - 47 and had been cultivating it exclusively. He became Gair Haqadar Kastkar and thereafter coming into force of M.P. Land Revenue Code, 1959 got Bhumiswami right on disputed land. This is his self acquired property. He is cultivating the land since 1946 - 47, the defendants have no right or title on the disputed land. This land was never included in family partition and never being allocated to defendants. This fact is also corroborated by statement of Babu Lal (PW-2) and Sukhendra Singh (PW-3). The testimony of plaintiff is also corroborated by Jama bandi Khatoni of the year 1958 - 59 (Ex.P/4) which is deemed to be record of rights, wherein he is recorded as Gairhaqdar Kastkaar. In the Khasra Panchashala of the years 1985 - 86 to 1994 - 95 and 2000 - 2001 (Ex.P/3, P/5 and P/6) the plaintiff is recorded as government lessee and in possession of the land. Later on as per the order of Sub Divisional Officer dated 09.02.2002 (Ex.P/8), the revenue records were corrected and the plaintiff was recorded as Bhumiswami of the land instead of government lessee. Thus, from the revenue records the presumption of Bhumiswami right and possession of the plaintiff over disputed land can be drawn. The Courts below have relied upon the testimony of plaintiff and his witnesses, which is duly supported by the revenue records arrived at the findings that the plaintiff is in possession of disputed land under his Bhumiswami rights.

Although, there is oral evidence of defendant and his witnesses to show that they are in possession of the land but this cannot rebut the presumption of plaintiff possession drawn on the basis of revenue records. The Courts below have rightly disbelieved the entry of possession of defendants in Kafiyat column of Khasra for the year 1966 - 67 to 1974 - 75 (Ex.D/8, D/9 and D/10). It is settled law that no presumption of possession can be drawn on the basis of entry recorded in column No.12 (Kafiyat) of Khasra Panchshala. Learned appellate Court has assigned valid reasons in this regard.

The plaintiff was aged about 21 years at the time of acquisition of the disputed land. The land recorded exclusively on his name and in his possession in Jama Bandi of the year 1958 - 59 and thereafter Khasra Panchsala of subsequent years. There is admission of defendants made in their written statement (Ex.P/11) filed in earlier Civil Suit, which is duly proved by the plaintiff, wherein they have admitted the plaintiff''s right and possession over the disputed land. This admission goes against the defendants and corroborates the plaintiff''s case. Thus, relying upon above evidence the Courts below have rightly recorded the concurrent findings of possession of the plaintiff over disputed land as Bhumiswami. This finding is neither perverse nor illegal.

In Vidhyadhar Vs. Manikrao (1993) 3 SCC 573 Hon''ble Apex Court held that:-

"Concurrent findings of fact recorded by trial court and first appellate Court could not have been legally upset by High Court in second appeal unless such finding are shown to be

perverse being based on no evidence or on evidence on record no reasonable person could have come to such conclusion."

In view of preceding analysis, findings of the Court below appears to be on correct appreciation of evidence, there is no illegality or perversity found in it, therefore, no substantial question of law arises for determination in the instant appeal.

Consequently, this second appeal fails and is hereby dismissed. However, there shall be no order as to costs.