Madhya Pradesh High Court
Ram Pramod Kacchi vs Gayadeen And Ors. on 1 September, 2004
Equivalent citations: 2004(4)MPHT493
JUDGMENT S.K. Pande, J.
1. Being aggrieved by the judgment-decree dated 22-9-90, passed by II ADJ, Sidhi in C.A. No. 1-A/89, reversing, the judgment-decree dated 31-1-87, passed by III Civil Judge Class II, Shahdol in C.S. No. 33-A/86, plaintiff/appellant has preferred this appeal under Section 100, CPC.
2. The appeal has been heard on the following substantial question of law :--
"Whether the Lower Appellate Court was justified in dismissing the plaintiffs suit on the finding that the plaintiff/appellant was out of possession and, therefore, the suit for declaration was not maintainable ?"
OR "Whether the Lower Appellate Court should have afforded an opportunity to the plaintiff/appellant to amend the plaint and claim the relief of possession also ?"
3. Admittedly suit land Khasra No. 501, area 0.22 acres, Village Panchgaon, Tehsil Sohagur, District Shahdol is recorded in the name of plaintiff/appellant Rampramod. On a portion of this land, residential houses were constructed by defendant/respondents, however, the remaining portion of land described in Para 4 of the plaint-map attached therewith, remained in exclusive possession of plaintiff/appellant. Defendant/respondents on 25-2-78, tried to dispossess him from the aforesaid portion described in Para 4 of the plaint and map attached therewith. Therefore, plaintiff/appellant instituted C.S. No. 33-A/86 before III Civil Judge Class II, Shahdol seeking declaration of tile and injunction restraining defendant/respondents from dispossessing him from the suit land. The suit aforesaid has been resisted by the defendant/respondents stating inter alia that plaintiff/appellant Rampramod is not related to defendant/respondents. Suit land Khasra No. 501, area 0.22 acres remained in possession of defendant/respondent and they never intended to dispossess the plaintiff/appellant.
The Civil Judge in C.S. No. 33-A/86 vide judgment dated 31-1-87 held that plaintiff/appellant Rampramod is owner of suit land Khasra No. 501, area 0.22 acres. Except the portion of land consisting of residential houses of defendant/respondents the remaining area always remained in exclusive possession of plaintiff/appellant. On 25-2-78, defendant/respondents threatened him to dispossess from the remaining portion of land. As such, C.S. No. 33-A/86 was decreed and defendant/respondents were restrained from dispossessing plaintiff/appellant from the suit land described in Para 4 of the plaint-map attached therewith. Being aggrieved, defendant/respondents preferred C.S. No. 1-A/89 before the II ADJ, Shahdol. The Court below setting aside the judgment-decree passed by Civil Judge in C.S. No. 33-A/86, allowed the appeal vide impugned judgment dated 22-9-90 and dismissed the suit C.S. No. 33-A/86. Being aggrieved, plaintiff/appellant has preferred this appeal under Section 100, CPC.
4. First Appellate Court dismissed the plaintiff/appellant's suit on the ground that he was out of possession and, therefore, the suit for declaration was not maintainable. It is contended that the finding aforesaid arrived at by the First Appellate Court is contrary to evidence on record and in any case, if necessary plaintiff/appellant must have been permitted to amend the plaint seeking relief of possession.
Exhibit P-1, Khasra entry for the year 1974-75 goes to show that plaintiff/appellant Rampramod was the recorded owner in possession of suit land Khasra No. 501, area 0.22 acres. As per Exhibit P-2 Bhuadhikar Patrika also, he is recorded owner of suit land. Exhibit P-3, demarcation report part of revenue case No. 14-A-92/75-76 is to the effect that the plaintiff/appellant Rampramod is recorded owner of Khasra No. 501, area 0.22 acres. On a part of this land, houses were built by defendant/respondent Suresh and Ramesh. The remaining portion of land part of Khasra No. 501 is in possession of plaintiff/appellant. Rampramod (P.W. 1), Patwa (P.W. 2) have stated that only on a portion of land Khasra No. 501, two rooms were constructed by the defendant/respondents. The dispute does not relate to the aforesaid portion of land in their possession. Rampramod (P.W. 1), Patwa (P.W. 2) has stated that the remaining portion of land part of Khasra No. 501 always been in possession of plaintiff/appellant Rampramod and defendant/respondent threatened to dispossess him. As against this, there is no evidence in rebuttal. Gayadeen (D.W. 1), Kheliya (D.W. 2) although have stated that defendant/respondents remained in possession of suit land, however, there is nothing to substantiate further. As against statements of Gayadeen (D.W. 1), Kheliya (D.W. 2), there is ample evidence on record vide Exhibits P-1, P-2, P-3, certified copies of revenue record that only on a portion on land, two rooms were constructed by defendant/respondents. The remaining portion of land always remained in possession of plaintiff/appellant.
5. The Civil Judge in fact rightly held that plaintiff/appellant is owner in possession of suit land, as such entitled to seek declaration and injunction restraining defendant/respondents from dispossessing him from portion of suit land described in Para 4 of the plaint and map attached therewith. The First Appellate Court however, with reference to Section 34 of the Specific Relief Act, erred in reversing the judgment-decree passed by Civil Judge. In any case, as has been held in S. Bhagat Singh v. Satnam Transport Co. Ltd. and Ors., AIR 1961 Punjab 278, suit seeking declaration and injunction ought not to have been dismissed with reference to Section 34 of the Specific Relief Act. Instead, plaintiff/appellant should have been given opportunity to amend his plaint. There is overwhelming evidence on record to state that plaintiff/appellant owner of suit land in fact is in possession of portion of land described in Para 4 of the plaint and map attached therewith. As such the First Appellate Court erred in allowing the appeal and dismissing the suit seeking declaration and injunction. The finding arrived at by the First Appellate Court is perverse and illegal.
6. Consequently, the appeal is allowed. Setting aside the judgment-decree dated 22-9-90, passed by II ADJ, Shahdol in C.A. No. 1-A/89, the judgment-decree dated 31-1-87 passed by Civil Judge Class-II, Shahdol in C.S. No. 33-A/86 decreeing the suit for declaration and injunction stands restored. Defendant/respondents shall bear their costs and pay the cost of plaintiff/appellant. Counsel fee as per rule or certificate (whichever is less).