Madhya Pradesh High Court
Ymprakash & Anr. vs Nagar Palika Bilaua & Anr. on 27 September, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 27th OF SEPTEMBER , 2022
FIRST APPEAL NO.161 OF 2002
Between:-
1. OMPRAKASH AGE-50 YEARS
2. RAJENDRA PRASAD, AGE-42
YEARS S/O CHAUDHARY
HARVANSH LAL SHARMA,
OCCUPATION- AGRICULTURIST
R/O BADA BAZAR, DABRA
DISTRICT GWALIOR (M.P.)
........APPELLANT
(BY SHRI A.V. BHARADWAJ - SENIOR ADVOCATE
WITH SHRI ROHIT BATHAM-ADVOCATE)
AND
1. NAGAR PALIKA, BILLOWA
PARGANA DABRA, DISTRICT
GWALIOR (M.P.)
2. STATE OF M.P. THROUGH
COLLECTOR GWALIOR (M.P.)
........RESPONDENT
(BY SHRI HARISH KUMAR DIXIT - ADVOCATE
FOR RESPONDENTS NO.1 AND SHRI G.P.
CHAURASIA, GOVERNMENT ADVOCATE FOR
RESPONDENT NO.2/STATE)
----------------------------------------------------------------------------------------
2
This appeal coming on for hearing this day, the Court passed the
following:
JUDGMENT
This first appeal under Section 96 of the Code of Civil Procedure has been filed by the appellants assailing the judgment and decree dated 10.08.2002 passed in Civil Suit No. 141-A/91 by First Additional District Judge Dabra whereby the civil suit preferred by the appellants has been dismissed.
In brief, the facts of the case are that, appellant-plaintiff is title holder and possession holder of a house, garden and yard situated at survey No.520, Village Billowa Tahsil Dabra District Gwalior which is shown in the map annexed with the plaint (hereinafter referred as "disputed property"). The disputed property was constructed by the appellants 30 years ago. At that time, Village Billowa had not been converted into Municipality. 3 biswa land of the said survey number was merged in road and a government godown is constructed on the remaining 5 biswa land. At the time of construction of building and boundary walls and garden, Gram Panchayat Billowa had not raised any objection. The plaintiff is in possession of the disputed property since last 30 years and the said fact is in the knowledge of the State. In the garden there are Mango, Jamun and Lemon trees. On 01.07.1988 employees of Municipality came and asked him to vacate the possession otherwise they will be forcibly evicted. Thereafter plaintiff sent a notice on 13.07.1988 to the respondent No.1 but again on 15.07.1988 employees of respondent No.1-Municipality came on the spot. Due to the said action on the part of Municipality, appellants-plaintiffs preferred civil suit before the court 3 below for declaration of title and permanent injunction against respondent in regard to disputed property.
Upon service of suit summons, respondent No.2-State of M.P. filed written statement denying the averments made in the plaint and contending that the land situated at Survey No.520 is a government land and plaintiff is not in possession of the disputed land. Plaintiff has not mentioned the source of his title to the disputed land. The disputed land is in possession respondent No.1-Municipality. Before constitution of Municipality, the disputed land was outside the limit of village and the disputed land was being used as cemetery but after the expansion of village, the disputed land was included within the limit of village and cemetery was removed from the disputed land. The State of M.P. filed a case under Section 248 of M.P. Land Revenue Code against the plaintiffs bearing case No. 828/92-93 v-68 and by order dated 26.03.1993 plaintiff was evicted from the disputed land. Respondent No.1-Municipality and filed written statement denying the averments made in the plaint and contending that if the disputed land is in possession of the plaintiff, then plaintiffs are encroachers and no relief can be granted to the encroachers.
Learned Court below after framing issues and recording of evidence adduced by the parties, dismissed the plaintiffs' suit.
Learned counsel for the appellants submits that the findings recorded by the trial Court are not based on proper reasonings as the plaintiff is in settled possession for a long period so the defendant has no right to evict the plaintiff from the disputed land.
Learned counsel for the appellants-plaintiffs has relied upon Rame Gowda (D) by Lrs Vs. Mr. Varadappa Naidu (D) reported in 2004 (1) 4 SCC 769, Bharosilal Vs. State of M.P reported in 2001 1 MPWN 3, Sakenabai Vs. State of MP reported in 1988 RN 341, Churmani and others. Vs. Shri Ramadhar and others reported in 1991 RN 61(D.B.) , Refuting the arguments submitted the learned counsel for the appellants, learned counsel for the defendant has submitted that the possession of plaintiff is not settled possession on the disputed land. The status of plaintiff's possession on the disputed land is simply to that of encroacher who is not entitled to get any relief either decree for permanent injunction or decree of Bhumiswami against the true owner State as prayed by the plaintiff. Learned counsel has further argued that the findings recorded by the trial Court are based on proper reasonings and no sufficient reason has been produced by the appellant-plaintiff to interfere in the impugned judgment and decree.
Heard learned counsel for the rival parties and perused the impugned judgment and decree and evidence on record.
It is alleged by the plaintiff in the plaint that the disputed land has been in possession of the plaintiff for long i.e. more than thirty years but the plaintiff has not made clear in the pleadings as to how he got Bhumiswami rights in the disputed land. No source of origin of Bhumiswami rights has been pleaded by the plaintiff without which no relief regarding Bhumiswami rights can be granted as prayed in the plaint.
Plaintiff has not produced any reliable and convincing document showing his possession for more than thirty years on the disputed land. The plaintiffs encroached over the disputed land from the year 1985 to 1994 as shown in the Khasra entries Ex.D-1, D-2. Therefore, the pleadings made by plaintiff as regard more than thirty years old 5 possession is totally baseless and hypothetical. Mere pleadings do not create title, on the other hand, it should be proved by cogent and credible evidence. Encroacher on government land can never get Bhumiswami Right or tenancy right against true owner i.e. State Government.
Basdev Soni (DW-2) has deposed that the disputed land is a part of Survey No.520. The said land was previously used as cemetery. On the one part of Survey No.520, godown of Seva Sahakari Sastha was constructed and municipality came into possession of remaining land. Appellants illegally in the year 1987-88 in collusion with Patwari without any order of competent authority recorded their names in Khasra entries as encroacher. Plaintiffs are not in possession of the disputed land since last 30 years. Since plaintiffs tried to encroach upon the disputed land, therefore, a case was registered by concerned Naib Tahsildar bearing No. 828/92-93 v-68 against plaintiff under Section 248 of M.P. Land Revenue Code, 1959 and affording opportunity of hearing to the plaintiffs, by order dated 26.09.1993, plaintiffs were evicted from the disputed land. During cross-examination the said witness admitted that in 1989 plaintiffs possessed the said land and constructed a house. From the side of appellants-plaintiffs no question was put before him so that his evidence could be disbelieved.
Learned Trial Court having discussed the oral and documentary evidence produced by the plaintiff as well as defendant in depth in Para 7 to 14 has discarded the plaintiff's case and has recorded a finding that the status of plaintiff is only to that of an encroacher on the government land and he has no Bhumiswami rights to the disputed land.
Learned counsel for the appellants has strenuously submitted that 6 the decree of permanent injunction against the defendant not to evict the plaintiff from the disputed land as the plaintiff has been in long possession of the disputed land. In support of his contention learned counsel cited the judgments as mentioned earlier.
The contention raised by the plaintiff's counsel has no relevance in this case as the plaintiff's possession herein is of the nature of encroachment so his possession cannot be regarded as settled possession. Though learned counsel for the plaintiff on the basis of para 9 of the judgment rendered in Rame Gowda's case (Supra) has tried to say that the possession of the plaintiff is to be treated as settled possession, yet the cited judgment does not help the plaintiff's case. The verdict of the Hon'ble Apex Court is related to a dispute between the private parties. In the aforesaid judgment, it has not been held that if a person unauthorizedly entered into possession of the land, his possession shall be treated as settled possession. In the instant case, State government is a party as defendant. Indisputably, since the possession of the disputed property was not handed over by the State Government to the plaintiff, the unauthorized possession of the plaintiff cannot be held to be a settled possession.
Under Section 248 of the M.P Land Revenue Code, the State Government has full right to evict an encroacher from the government land and the said encroaching possession cannot be protected by perpetual injunction of civil Court as held in State of M.P v. Ismail Khan 2006 Revenue Nirnay 271. In the judgment of this Court in the case of Chuamani and others Vs. Shri Ramadhar and others reported in 1991 RN 61 (D.B.), it has been categorically held that an entry made 7 by the Patwari in the remark column or any other column of a khasra or field book no presumption of correctness can be attached as per section 117 of the M.P. L.R.C. The Division Bench further held that the Patwari is not required to make any kind of entry in the khasra or field book under Chapter 9 of the M.P.L.R.C. In this view of the matter, even if any entry in column no. 12 is made by the Patwari in the khasra in favour of plaintiff, it would not mean that the plaintiff is in possession of the suit property. Similarly, other cited judgments does not help the plaintiff's case because the said judgments are not relevant so far as the controversy in the present case is concerned.
Having taken into account the recorded evidence, facts and circumstances of the case, this Court holds that the learned trial Court has not committed any error in dismissing the plaintiff's suit. No flaw has been found in the findings of the impugned judgment to interfere with it. Consequently, the appeal filed by the plaintiff is found to be baseless, therefore, upholding the finding of impugned judgment, the appeal is dismissed.
YOGENDR
(DEEPAK KUMAR AGARWAL)
A OJHA JUDGE
2022.09.2
ojha
9 17:51:25
+05'30'