Madhya Pradesh High Court
Smt.Chandrakiran vs Smst.Krishna Soni on 24 October, 2016
Author: Rohit Arya
Bench: Rohit Arya
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Second Appeal No.425/2014
Smt. Chandrakiran and others
Vs.
Smt. Krishna Soni and others
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Shri N.K.Gupta, Sr. Advocate assisted by Shri M.K.Chaturvedi,
Advocate for the appellants.
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JUDGMENT
( 24/10/2016) Rohit Arya, J This appeal under section 100 CPC by defendants No.1 to 4 is directed against the confirming judgment and decree dated 18/09/2014 passed in civil appeal No.10A/2013 by I Additional District Judge, Joura, District Morena. The judgment and decree dated 16/08/2013 passed in civil suit No.11A/2011 by the trial Court has been confirmed.
2. Facts necessary and relevant for the purpose of disposal of this appeal are in narrow compass. Plaintiff/respondent No.1 has filed a suit initially for permanent injunction against the defendants No.1 to 4 restraining them from interfering with the possession of the plaintiff over the suit land admeasuring 10 x 40 sq., feet faling in ward No.4, Ramnagar Colony, Alapur Joura, Tehsil Joura, District Morena. However, during pendency of the suit, plaint was amended with the claim that in the intervening night of 25/26 th September, 2010 defendants No.1 to 4 have raised construction by raising a wall and covered it with a tin shed on an area of 26 feet in length from east to west and 13 feet width from north to south by taking forcible possession of the suit land. Therefore, the relief for recovery of possession with mesne profits at the rate of Rs.500/- (for short, 'the suit land') has been prayed. The suit land, a part of 700 sq., feet land falling in survey No.722 was purchased by the plaintiff from one Arjun Lakhina for a consideration of Rs.1,00,200/- by a registered sale deed dated 12/12/2008 vide exhibit P/5. The aforesaid 700 sq., feet of land was purchased by Arjun Lakhina from the undisputed owners 2 Sundarlal and others, defendants No.5 to 8. The said land of 700 sq., feet is out of 1 Biswa of land as per registered sale deed dated 26/06/2000 (exhibit P/7) executed in favour of Arjun Lakhina by the predecessor-in-title. Admittedly, the plaintiff laid foundation on 10 feet x 18 feet and the remaining land is vacant where belongings of the plaintiff are stacked. Defendant No.2 has raised two-storeyed pakka house on an area of 25 feet x 65 feet towards north side of the suit land. There is a pakka constructed wall from east to west, as such, the defendants No.1 to 4 have nothing to do with the plot of land owned by the plaintiff. On the southern end of the house, defendants broke open the wall and started digging the area of suit land. Despite resistance, the illegal digging continued with threat of dire consequences. Thereafter, in the intervening night of 25th /26th September, 2010, the possession of suit land (an area of 13 feet x 26 feet) has been forcibly taken and covered it with tin shed by the defendants. With the aforesaid facts, the relief for recovery of possession and injunction has been prayed.
3. Defendants No.1 to 4 have filed written statement and denied plaint allegations. Though defendants denied that the suit land is not part of survey No.722 but have not filed any document to demonstrate that the suit land is of their ownership. That apart, the defendants have also not filed the sale deed of the plot allegedly purchased from the common original owner, Sundarlal and others whereupon two-storeyed pakka house has been constructed by them. Defendants have asserted right over the suit land claiming perfection of title by adverse possession, as according to them since the year 1996, the suit land has been in their possession. It has been denied that defendants either broke open the wall or raised construction in the intervening night of 25th/26th September, 2010 and covered on an area of 13 feet x 26 feet by a tin shed, as alleged.
4. On the aforesaid pleadings, trial Court framed following issues and allowed parties to lead evidence.
3dz- okniz'u fu"d"kZ 1 D;k okfn;k oknxzLr Hkwfe 10 izekf.kr xq.kk 40 oxZQhV fLFkr okMZ dzekad 4 jkeuxj dkWyksuh tkSjk losZ dzekad 722 ftls okni= ds lkFk layXu ekufp= esa yky L;kgh ls n'kkZ;k x;k gS] dh Hkwfe Lokeh o vkf/kiR;/kkjh gS \ 2 D;k izfroknh dzekad 1 yxk;r gkWa 4 mDr oknxzLr Hkwfe ij tcju vkf/kiR; djukk pkgrs gSa \ 3 D;k izfroknh dzekad 1 yxk;r Ugha 4 }kjk oknxzLr Hkwfe ij o"kZ 1996 esa gh Hkou fuekZ.k dj dCtk dj fy;k Fkk \ 4 D;k izfroknhx.k dks mDr Ugha oknxzLr Hkwfe ij fojks/kh vkf/kiR; ds vk/kkj ij Hkwfe Lokeh LoRo izkIr gks x;s gSa \ 5 vuqrks"k ,oa okn&O;; \ okn lQy jgk 6 D;k izfroknhx.k us okn izLrqfr gkWa ds i'pkr~ 13 xq.kk 26 oxZQhV dh oknxzLr Hkwfe ij bZaVksa dh nhoky cukdj o Vhu'ksM Mkydj tcju dCtk dj fy;k gS\ 7 D;k izfroknhx.k us oknxzLr Hkwfe ugha ij voS/kkfud :i ls vkf/kiR;
dj yxHkx 500@& :i;s izfrekg dk ykHk vftZr dj jgs gSa \ From paragraphs 7 to 10 and 13 to 18 of the judgment, the trial Court has discussed the oral and documentary evidence placed on record, viz., certified copies of application for demarcation (exhibit P/1), receipt (exhibit P/2), demarcation map (naksha Aks simakan) exhibit P/3 & panchnama (exhibit P/4) filed by the plaintiff and recorded a finding on issue Nos.1, 3 and 4 to the effect that the suit land is a part of survey No.722 and the defendants though claimed to be in possession of the suit land since the year 1996 but have not produced any documentary evidence in that behalf somuch so, it is only after the plaintiff has filed the sale deed dated 20/11/1996 (exhibit P/6) executed in favour of defendant No.1 indicating that part of the land falling in survey No.720 had been transferred in their favour by erstwhile common owner, Sundarlal and the survey No.720 is adjacent to survey No.722 (paragraphs 16 to 18), the defendants attempted to agitate that the suit land is not a part of survey No.722. By 4 analyzing the sale deeds dated 12/12/2008 (exhibit P/5) and 26/06/2000 (exhibit P/7) respectively, the trial Court has also recorded a finding that the plaintiff has purchased the same area from Arjun Lakhina who had purchased from the original owners, Sundarlal and others i.e., 700 sq., feet of land out of survey No.722. While answering issue Nos.2 and 6, the trial Court in paragraphs 23 to 26 of the judgment has concluded that the defendants were never in possession of the suit land since the year 1996 and further possession of the suit land has been taken forcibly and construction activity has been carried out thereon by the defendants as per Court Commissioner-advocate's report (paragraph 24 in particular). Consequently, decreed the suit.
5. The first appellate Court has reconsidered the entire oral and documentary evidence placed on record and affirmed the findings of fact recorded by the trial Court from paragraphs 13 to 22 of the judgment.
6. Both the Courts below have rendered judgments and decrees based on critical evaluation of the evidence on record with comprehensive findings.
7. Learned senior counsel for the appellants' taking exception to the judgments and decrees passed by the Courts below has vehemently argued that both the Courts below have adopted perverse approach in the matter of appreciation of the evidence on record. Hence, there is patent illegality on the part of the Courts below having not appreciated the fact that the appellants/defendants have been in possession over the suit land since the year 1996 and, therefore, perfected title by adverse possession.
8. Further, learned senior counsel contends that the Courts below ought to have appointed a commissioner for demarcation of location of the suit land. That having not been done, the findings recorded by the Courts below are vitiated. As indicated above; in the pleadings, the defendants have not disclosed the fact of purchase of plot in survey No.720 over which the pakka house is constructed. No document, muchless, the title 5 documents are placed on record to claim right of ownership over the suit land. As such, the defendants have suppressed the material facts and did not file the pleadings with clean hands. That apart, no application for demarcation of land or appointment of commissioner was filed either before the trial Court or before the first appellate Court. The contention raised in that behalf is rejected. The application filed before this Court to the same effect cannot be countenanced, at this stage. Moreover, the Courts below after taking into consideration the certified copies of exhibits P/1, P/2, P/3 & P/4 viz., application for demarcation, receipt, demarcation map (naksha Aks simakan) & panchnama, respectively conducted by the revenue department showing that the suit land is part of survey No.722 and the report of the Court Commissioner-advocate appointed by the trial Court, have concluded that the suit land is a part of survey No.722. The aforesaid finding is reinforced- on examination of sale deed dated 26/06/2000 (exhibit P/7) executed for an area of 700 sq.feet., in favour of Arjun Lakhina by the original owner, Sundarlal and the same land being transferred in favour of the plaintiff by Arjun Lakhina vide sale deed date 12/12/2008 (exhibit P/5). The judgment of Hon'ble Supreme Court cited by him in the case of Haryana Waqf Board Vs. Shanti Sarup and others, (2008) 8 SCC 671 is of no assistance to the appellants and distinguishable on facts. In the said case, despite, applications filed for appointment of local commissioner for demarcation of the boundaries before the trial Curt and the appellate Court, the same have not been taken into consideration. Under such circumstances, the Hon'ble Supreme Court had directed for ascertaining the encroachment. Likewise, the judgments of this Court in the cases of Jagdish Prasad Vs. State of M.P., and another, 2009(2) MPHT 459 (DB) & Gajraj Singh Vs. Ram Singh and others, 2006(2) MPLJ 126 are distinguishable on facts and not of assistance to the appellants.
9. In view of the aforesaid facts and circumstances, the defendants No.1 to 4 have failed to establish perfection of title by adverse possession over the suit land since the year 1996. Even otherwise, in the light of law laid down by Hon'ble Supreme Court 6 in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669, the aforesaid plea of perfection of title by adverse possession now cannot be taken even by way of defence. Accordingly, this Court finds no merit in the submissions advanced by the learned senior counsel for the appellants.
10. As such, both the Courts below are fully justified in decreeing the suit of plaintiff. The findings are absolutely impeccable in nature. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference under section 100 CPC.
11. Appeal sans merit and is accordingly dismissed.
(Rohit Arya) Judge 24-10-2016 b/-
7HIGH COURT OF MADHYA PRADESH, BENCH GWALIOR SINGLE BENCH:
Reserved on 05/10/2016 HON. SHRI JUSTICE Rohit Arya Second Appeal No.425/2014 Smt. Chandrakiran and others Vs. Smt. Krishna Soni and others Judgment Post for /10/2016.
(Rohit Arya) Judge.
/10/2016