Madhya Pradesh High Court
Hargovind Pandey vs Smt.Koshilaya Devi & Ors on 30 April, 2013
1
S.A. No.458/1999
Smt. Nanhi Bai & Ors. vs. Smt. Koshalya Devi & Ors.
30.04.2013
Shri P. N. Das learned counsel for the appellants.
Shri Dinesh Agrawal learned counsel for
respondent no.2.
Heard on the question of admission.
The appellants have filed this appeal being aggrieved by the judgment and decree dated 24.03.1999 passed by the District Judge Sagar in Civil Appeal No.26-A/98 whereby the judgment and decree dated 22.4.1998 passed by the Civil Judge Class-II Banda in Civil Suit No.2-A/1995 has been reversed and the suit filed by the appellants/plaintiffs for declaration and permanent injunction in respect of part of Khasra No.436/29, new Khasra No.814 of village Shahgarh District Sagar, has been set aside.
It is submitted by the learned counsel for the appellants that the First Appellate Court has reversed the well reasoned finding recorded by the trial court in respect of ownership of the appellants which was based upon the sale deed dated 2.2.1995, Exhibit P-6, by which the appellants had purchased the land in dispute from the original owner Anil Dattatrey Rao Athle, son of Dattatrey Rao Athle. The learned counsel for the appellants submits that the land in question initially belonged to Malgujar Dattatrey Rao Athle and was the ancestral property of the said 2 S.A. No.458/1999 Smt. Nanhi Bai & Ors. vs. Smt. Koshalya Devi & Ors.
Malgujar who executed an agreement for sale of the said portion of land in favour of the appellants sometime in the year 1974 and thereafter pursuant to the agreement, a sale deed in favour of the appellants was executed on 2.2.1995, on the strength of which the appellants were in possession of the land in dispute but the respondent authorities, by treating the land to be Government land vesting in the concerned Municipality, were trying to dispossess them and trying to construct a shopping complex on the said land which led to the filing of the suit.
It is submitted that the trial court recorded a finding to the effect that the land in question actually belonged to the original owner Dattatrey Rao Athle who had executed a sale deed in favour of the appellants in the year 1995 and, therefore, the land in question was not government land vesting in the Municipality and that the appellants/plaintiffs were the owner in possession of the same, but the first appellate court has reversed the aforesaid finding and has recorded a finding to the effect that the land did not, at any point of time, belong to Malgujar Dattatrey Rao Athle and, therefore, no right or title was conveyed to the appellants by the sale deed dated 2.2.1995 and by recording the aforesaid 3 S.A. No.458/1999 Smt. Nanhi Bai & Ors. vs. Smt. Koshalya Devi & Ors.
finding, the appellate court has set aside the judgment and decree passed by the trial court.
The learned counsel for the appellants submits that the oral and documentary evidence on record, which was duly and properly analysed by the trial court, clearly indicates that the finding recorded by the first appellate court is perverse inasmuch as the document, specifically Exhibit P-11, the sale deed, Exhibit P-6 and the other documents clearly establish to the contrary.
I have heard the learned counsel for the appellants at length and have also perused the record. From a perusal of the same it is clear that there are no documents on record to indicate that the land in question ever belonged to Malgujar Dattatrey Rao Athle. In fact the document on record, Exhibit D-2, which is an order passed by the competent revenue authority on 30.3.1993, Exhibits D-3 and D-8, clearly indicate that in the year 1990-91 proceedings for removal of encroachment against the appellants were taken up by the revenue authorities under section 248 of the M.P. Land Revenue Code and in the said proceedings orders for removal of the encroachment made on the disputed land by the appellants were passed against them. From the said documents it is also clear that the appellants did not 4 S.A. No.458/1999 Smt. Nanhi Bai & Ors. vs. Smt. Koshalya Devi & Ors.
take up the defence of ownership before the revenue authorities nor did they file any document relating to agreement or sale deed in respect of the land in question before the revenue authorities. It is further clear from the order passed by the revenue authorities that the land in fact belonged to the State Government and not to Dattatrey Rao Athle. No document to establish that the land actually belonged to the erstwhile Malgujar Dattatrey Rao Athle has been filed except for Exhibit P-11 which is an amended revenue entry which was made in the year 1995 after the execution of the sale deed and, therefore, has no material bearing on the issue.
The first appellate court has analysed the aforesaid aspect and has recorded a finding to the effect that the appellants have not filed any document to establish the ownership of Dattatrey Rao Athle, the Malgujar, and the subsequent transfer of title to the appellants by the competent owner. The court below has also recorded a finding on the basis of the documents that the land in fact belongs to the State Government and not to the Malgujar Dattatrey Rao Athle. On the basis of the aforesaid finding recorded by the appellate court, which is based on proper appreciation of the oral and documentary evidence on record, the judgment and 5 S.A. No.458/1999 Smt. Nanhi Bai & Ors. vs. Smt. Koshalya Devi & Ors.
decree passed by the trial court has been reversed. The reasoning given by the first appellate court and the analysis of the oral and documentary evidence made by it does not suffer from any perversity or material irregularity, on the contrary it is based on proper appreciation of the oral and documentary evidence on record which does not call for any interference by this Court nor does it give rise to any substantial question of law.
In the circumstances the appeal, filed by the appellants, being meritless is accordingly dismissed.
( R. S. JHA ) JUDGE mms/-