Madhya Pradesh High Court
Waheed Khan vs Gyani Bai And Ors. on 25 February, 2005
Equivalent citations: AIR2005MP232, 2005(3)MPHT91, AIR 2005 MADHYA PRADESH 232, (2005) 3 MPHT 91, (2005) 3 MPLJ 213, (2005) 4 CIVLJ 729
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Challenging the order (Annexure P-1) dated 23-3-2004 passed by the Court of Additional District Judge Sironj in Civil Appeal No. 36/03 setting aside the order of injunction granted to the petitioner by the learned Civil Judge Class I, Lateri Distt. Vidisha on 6-9-03 vide Annexure P-2, petitioner has filed this petition.
2. Petitioner had filed a suit for declaration and injunction with regard to suit land consisting of Survey No. 170 area 3.592 hectare. The Survey Number has been further changed to Survey Nos. 170/1 and 170/2. Initially, a patta was granted on 18-8-1986 in the name of defendant No. 1 Pancha who has been recorded as Bhoomiswami. It is the case of the petitioner that out of the land allotted to Pancha, petitioner had purchased 1.012 hectare and is in possession of the said land with the knowledge of all concerned. It is the case of the petitioner that petitioner and Pancha are in possession of the land since more than 32 years but Pancha has illegally sold certain portion of the land occupied by the petitioner to Gyani Bai and defendant No. 2 Bihari who is Kotwar of the village taking advantage of his status defendant Bihari has manipulated the records and has entered the name of his wife Gyani Bai respondent No. 1 in the revenue records holding that petitioner is in possession of the suit property has acquired right to hold possession by virtue of adverse possession and by filing various revenue records, petitioner pointed out that his possession over 1.012 hectares of land can not be interfered with. Initially on the basis of the material available on record learned Trial Court granted injunction and on appeal being filed, Appellate Court had quashed the order of injunction and has allowed the appeal. Shri Prashant Sharma, learned Counsel argued that once it is established on the basis of the document (Annexure P-6) demarcation report so also the Panchnama prepared vide Annexure P-7 that petitioner was in possession of the land to the extent of 0.630 hectares at the time of filing of the suit, possession of the petitioner to that extent should have been protected. In this regard, he invites my attention to a judgment of this Court in the case of State of M.P. v. Hariom General Industries and Ors., AIR 1992 MP 286. Further inviting my attention to revenue records (Annexure P-8) Shri Sharma argued that once it is established that petitioner is in possession since Samvat 2027 which comes to corresponding year 1979 as per Annexure P-8, his possession should have been protected. Shri Sharma argued that without considering these documents in an arbitrary manner, learned Appellate Court has interfered with the injunction granted by the Trial Court which is unsustainable.
3. Shri K.N. Gupta, learned Sr. Advocate refuted the aforesaid and inviting my attention to the evidence recorded by the learned Appellate Court in Para 21 of the impugned judgment argued that adverse possession of the petitioner is not established from the records and holding that petitioner is an encroacher over the land, learned Appellate Court has rightly rejected the application for injunction. It is argued by Shri Gupta that injunction in favour of an encroacher can not be granted. In support of his contention he invites my attention to a judgment of the Supreme Court in the case of Rame Gowda (dead) by L.Rs. v. M. Varadappa Naidu (dead) by L.Rs. and Anr., (2004) 1 SCC 769.
4. I have heard learned Counsel for the parties and perused the records.
5. From the records it is seen that apart from the Panchnama, the Revenue records and the Demarcation Report filed by the petitioner in this petition as Annexures P-6, P-7 and P-8, learned Trial Court with a view to ascertain possession on the date of filing of the suit had appointed one Shri K.B. Shrivastava, Advocate as Commissioner. The Court Commissioner visited the spot on 26-7-2003 and has submitted his report with regard to possession of the petitioner on certain portion of land in question and had found that crops of Jawar are standing on the field. The detailed report has been submitted by the Commissioner indicating possession of the petitioner on certain area in the land in question. Thereafter, considering the affidavits filed and holding that petitioner is in possession of land bearing 0.382 hectares in Survey No. 170/1 and 0.630 hectares in Survey No. 170/2 injunction was granted. Injunction has been granted by the learned Court not only on the basis of the revenue records but also on the basis of the report submitted by the Commissioner. Learned Trial Court has assessed the prima facie case, balance of convenience and irreparable loss in the light of these documents and has passed the order of injunction. This order of injunction has been interfered with by the learned Appellate Court by only holding that petitioner has not proved adverse possession over the land but he is a encroacher. However, a perusal of the order impugned passed by the Appellate Court on 23-3-2004 indicates that the Appellate Court has not given any reason for holding that the findings recorded by the Trial Court is illegal or perverse. In fact, the learned Appellate Court has dealt with the general principles governing encroachment and grant of injunction and without evaluating the general principles, in the light of the facts and circumstances of the present case has given a finding holding the petitioner to be encroacher. A perusal of the order passed by the learned Appellate Court indicates that from Paras 1 to 10, learned Appellate Court has narrated the case of the parties concerned, thereafter in Para 11 it has mentioned about the order dated 6th September, 2003 passed by the learned Trial Court, in Para 12 learned Appellate Court contends that it has heard and considered the arguments advanced by learned Counsel appearing for the parties and has perused the order dated 6th September, 2003. Thereafter in Paras 13, 14, 15 and 16, learned Court has referred to certain judgments and has dealt in detail the principles on the basis of which injunction can be granted and the factors to be considered for assessing the prima facie case and adverse possession. However, all of a sudden in Para 17 again certain judgments are referred to and the principle laid down therein is discussed. Similar discussion takes place in Para 18 also and thereafter in Para 19 a evaluation is made on the basis of the material available on record. However, after evaluating these records, no finding is given either way with regard to possession or encroachment. On the contrary, after referring the documents available on record on Para 19 and 20 in a casual manner in Para 21 after referring to some judgment, a finding has been recorded that petitioner is an encroacher does not prove adverse possession and, therefore, injunction can not be granted. Going through the entire order passed by the learned Appellate Court, it is seen that except for discussing the general principles and law in the matter of granting injunction learned Court has not considered the documents available on record, the reasons given by the learned Trial Court and assessment of the prima facie case made by the Trial Court for granting injunction. Learned Trial Court after considering the revenue records, the demarcation report, the Panchnama so also the Commissioner's Report has come to the conclusion that petitioner was in possession in certain portion of land and granted injunction. It is this order of the learned Trial Court which has been interfered with by the learned Appellate Court in the manner as indicated hereinabove. It is true that in the case of Rame Gowda (supra) it has been observed that an encroacher can not claim injunction but at the same time Supreme Court has laid down in the aforesaid case that a person in peaceful possession is entitled to retain his possession. Injunction can not be granted against a rightful owner who has been disposed by use of force. In the facts and circumstances of the present case, the said principle will not apply. On the contrary, the principle laid down the earlier cases with regard to protection of possession and removal of an encroacher will apply in the facts and circumstances of the case. It is seen that petitioner had established his possession on the property on the date of filing of the suit and it is not the case of the State Govt. that petitioner is encroacher on the land. On the contrary, his possession is claimed on the basis of the transaction made between him and Pancha defendant No. 3. In the peculiar facts and circumstances of the present case possession of the petitioner having been established on the date of filing of the suit same was protected by the learned Trial Court and the same does not call for any interference by the learned Appellate Court in a manner as indicated hereinabove. The Trial Court having found the plaintiff to be in possession and having held that the question of title has to be decided after recording of evidence granted injunction, the aforesaid order was unnecessarily interfered with by the learned Court below in a mechanical manner without recording any reason as to how and in what manner the findings is perverse or unsustainable.
6. Accordingly, it is to be held that the order passed by the learned Appellate Court is clearly perverse and unsustainable. Learned Appellate Court has acted in excess of jurisdiction. Accordingly, petition is allowed. Order (Annexure P-1), dated 23-3-2004 passed by the learned Appellate Court is quashed. The order of injunction granted by the Trial Court vide Annexure P-2 on 6th September, 2003 is restored.
Petition stands allowed and disposed of with the aforesaid.