Gayaprasad (Dead) Through Lrs (1A) ... vs Kishorilal (Dead) Through Lrs (I) Maya ... on 1 May, 2023

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Madhya Pradesh High Court

Gayaprasad (Dead) Through Lrs (1A) ... vs Kishorilal (Dead) Through Lrs (I) Maya ... on 1 May, 2023

1. This first appeal under Section 96 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants against the common judgment and decree passed in a consolidated manner on 06/02/2022 by Additional District Judge, Gohad, District Bhind in Civil Suit No 10-A/1992 (Gayaparasad and Another vs Kishorilal and Others) and Civil Suit No. 10-A/1994 (Jagdish Prasad vs. State of M.P. & Others.).

2. The necessary facts for disposal of the present appeal in short are that the land bearing survey No. 25/1 admeasuring area 18 Biswa was situated at Gohad Choukhatta, Gohad, District Bhind (M.P.). Out of the said total land of 18 Biswa, 3 Biswa of the said land was purchased by the plaintiffs vide registered sale deed dated 09/04/1980 from its previous Signature Not Bhumiswami Verified in possession namely Shyamdas S/o Shri Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 5 )- F.A. No. 70 of 2002 Haridas. The plaintiffs obtained their possession at the time of purchase. The dimensions of the aforesaid disputed land are 85' east-west and 45' north-south. The boundaries of the disputed land are shown in the plaint map.

3. The plaintiffs/appellants instituted civil suit No. 10A/92 against the defendants/respondents No. 1 to 4 for declaration of title permanent injunction and damages mainly with the following averments :-

(a) The land comprising in Survey No. 25/1 situated at village Keeratpura, Pargana Gohad, District Bhind was possessed by Shyamdas as a Bhumiswami. Out of this land, the disputed land was sold by him to the plaintiffs vide registered sale deed dated 9-4-1980 and its possession was also delivered to the plaintiffs at the time of its purchase. The plaintiffs thereafter have been continuously in possession of the disputed land since the date of purchase in the capacity of a Bhumiswami. Pursuant to Bandobast, the survey number of the disputed land is changed from 25/1 to survey number 3.

Further in pursuance of the Bandobast, a patta was also Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 6 )- F.A. No. 70 of 2002 granted to the plaintiffs in respect of the disputed land. The plaintiffs, thereafter, got the disputed land diverted vide order dated 18-6-90 passed by the then SDO, Gohad. Thereafter, the plaintiffs made construction maintaining a passage 3' in width and 75' in length. However, the passage was and is owned and possessed by the plaintiffs exclusively.

(b) Adjacent to the disputed property in south direction, there is a house property occupied by the defendants. The plaintiffs submitted an application for demarcation of the disputed property. The demarcation was made in case No. 18/89-90 A/12 of Tehsil Gohad and the defendants were also apprised of the same. The defendant/respondent No. 2 submitted objections which were dismissed on 29-6-90 and an appeal preferred against it was also dismissed by the SDO Gohad.

(c) The defendants/respondents No. 1 to 4 had an eye over this property, but the plaintiffs refused to sell the same to them, with a malafide intention of grabing the disputed property, the defendant opened a door towards the plaintiffs Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 7 )- F.A. No. 70 of 2002 passage in an illegal, unauthorized and forcible manner and have started using the passage. The ingress and egress of the defendant's property is from the Gwalior Bhind Road i.e. from south direction. The plaintiffs are entitled to seek a restraint order against them in the matter.

(d) Similarly, the defendants/respondents No. 1 to 4 have caused damage in 09/04/1991 in the midnight to the stone slabs of the constructed room of the plaintiffs which was immediately reported to the police station Gohad and a criminal case against them was registered under section 336, 147, 506-B and 294 of PC. They further did not allow the plaintiffs to make the repairs and made an abortive attempt to dispossess the plaintiffs from the disputed property without any authority of law.

(e) During pendency of the suit, the defendants/ respondents No. 1 to 4 constructed 2 RCC pillars in the passage and covered it by R CC slabs. They have further covered a portion of the passage in the same manner on the second and third floor also. The plaintiffs are entitled to the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 8 )- F.A. No. 70 of 2002 removal of the over hanging encroachment.

4. Per contra, the defendants /respondents No. 1 to 3 have filed their written statement and counter claim denying the averments made in the plaint by the plaintiffs. It is submitted that the land bearing survey No. 2/1 was not owned and possessed by Shyamlal as Bhumiswami, therefore, the sale deal dated 09/04/1990 in favour of the plaintiffs/appellants is illegal and incompetent. It is further submitted that the disputed property falls in survey No. 25/2 and not in survey No. 25/1. The disputed land was not possessed by Shyamdas and its possession was not delivered to the plaintiff. Thus, the plaintiffs have neither title nor possession over the disputed land. It is further submitted that the land bearing survey No. 25/2 is 10 biswa in area and is owned by and possessed by the respondents No. 1 to 3. Their house is also constructed on a part of it. Adjacent to it, there is a piece of land admeasuring 44' x 80' and a temporary injunction was issued in their favour against the State of M.P. It is further submitted that the plaintiffs have constructed a well and also a house on the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 9 )- F.A. No. 70 of 2002 piece of land admeasuring 44' x 80' in contravention of the injunction order and the defendants have initiated proceedings for breach of injunction. It is further submitted that the passage belongs to the defendants which they have been using for their house. It is further submitted that the demarcation and other proceeding of diversion etc. are also denied factually and also for want of competence. Similarly, the alleged RCC construction is also valid. The defendants by way of counter claim prayed that the sale deed dated 9-4-1980 executed by Shyamdas in favour of the plaintiffs be declared ineffective for want of title and the plaintiffs be restrained from interfering into the possession and usage of the defendants over the disputed land.

5. The plaintiff/appellants submitted their written statement to the counter claim and prayed for the dismissal of the counter claim.

6. The defendant/respondent No. 2 had also instituted civil suit No. 10/94 in the court of Civil Judge, Class-I, Gohad District Bhind against the respondent No. 4 to 7, wherein, he Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 10 )- F.A. No. 70 of 2002 prayed for declaration that the disputed land comprising in survey no. 25/2 in area 10 biswa may be declared to be of his ownership and possession and respondent s No. 4 to 7 may be restrained from causing any interference into his possession.

7. The state of M.P. submitted a written statement and denied the claim of respondent No. 2 in civil suit No. 10/94. It was stated that the survey No. 25/2 is a Government land. It is neither owned nor possessed by Jagdish (plaintiff of civil suit No. 10A/94 and the present respondent No. 2). It was further stated by the State of M.P. that 15 biswa of survey No. 25/2 is occupied by the police station Gohad and the remaining area of 15' x 80' of survey No. 25/2 has been encroached upon by Jagdish illegally.

8. The civil suit No. 10-A/92 and 10-A/94 were consolidated by virtue of order dated 4-8-99 passed by this Court in Civil Revision No. 578/98. After consolidation, learned Ist Additional District Judge , Gohad, District Bhind has passed impugned common judgment and decree dated 6-2- 2002 holding that the plaintiff's predecessor-in-title (namely Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 11 )- F.A. No. 70 of 2002 Shyamdas) was a Bhumiswami in possession of the disputed property. The learned trial judge, further held that the plaintiffs are entitled for declaration of title, however, they are not in possession over the suit land and defendants are in possession over the land in dispute. The declaration of title has been made in favour of the plaintiffs denying the injunction for want of possession. Civil Suit No. 10A/94 instituted by Jagdish was dismissed. However, his counter claim has been decreed in respect of injunction. Aggrieved by the same, the plaintiffs/appellants have filed the instant appeal.

9. The learned counsel for the appellants argued that the impugned judgment and decree is perverse, illegal and against the settled principle of law. The learned trial court has ignored the evidence adduced by the plaintiffs/appellant and disbelieved the possession of plaintiffs over the suit land. The evidence has not been properly appreciated. Since there was a dispute over the plaint map, therefore, learned trial court should have appointed the local commissioner and call Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 12 )- F.A. No. 70 of 2002 for the report over the issue of possession.

10. On the other hand, learned counsel for the respondent supported the impugned judgment and decree passed by the court below and prayed for dismissal of the instant appeal being bereft of merit and substance.

11. The learned counsel for appellants on 08.02.18 sought time to verify whether there is another appeal in Civil Suit No.10A/1994 (Jagdish Prasad Vs State of MP). At the time of final arguments in this appeal learned counsel for appellants submitted that as informed by his party apart from this appeal no other appeal is pending against the judgement passed in Civil Suit No.10A/1994 (Jagdish Prasad Vs State of MP).

12. Heard and perused the record.

13. The appellant/plaintiff Gayaprasad has examined himself as PW-1 and Ramnaresh, Omprakash, Ramesh Singh Gaur & Sarnaam Singh Patwari to prove his case and also produced documentary evidence i.e. copies of Khasra Panchshalla (Ex. P/4 to P/6).

14. On the other hand, respondent/defendant Jagdish Prasad Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 13 )- F.A. No. 70 of 2002 has examined himself as well as witnesses Haider Singh, Chottelal & Sarnaam Singh.

15. As per the statement of plaintiff Gayaprasad, survey No. 25/1 is situated at Khiratpura, in which, 3 biswa of land was purchased by him in Sarnaam's as well as his own name. Plaintiff's witness Ramnaresh who is the attesting witness of sale deed has supported the statement of plaintiff. The document Ex. P/4 Khasra Panchshalla reveals that name of Shyam Das, Kartar Singh, Gulab Singh, Chotte, Hardayal Gayaprasad, Sarnaam Prasad are recorded in column No. 3. Similarly, in Ex. P/5 Khasra Samvat 2031 to 2034, the names of the above persons have been recorded in column No. 3. Other Khasra Panchshalla also have the same entries.

16. The documents further show that in Ex. P/11, which is Khasra Samvat 2055 to 2056, the names of the plaintiffs are recorded as owner (Bhumiswami) in column No. 3. The document Ex. P/14 reveals that the deceased Shyam Das has filed a civil suit in respect to survey No. 25/2 against the defendant Jagdish Prasad and his brother as well as Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 14 )- F.A. No. 70 of 2002 Government of M.P. The said Civil Suit was filed for declaration of the ownership as well as permanent injunction. Ex. D-14 reveals that the deceased Shyam Das pleaded in civil suit that in the part of survey No. 25/2, the defendant Mayachand has encroached upon the land and had constructed his shop and house.

17. A joint perusal of the registered sale deed Ex. P/11 and plant map annexed with the plaint in this civil suit reveal that the boundaries shown in Ex. P/11 are different from the boundaries of disputed land in the plaint map. The record reveals that the present civil suit was filed on 16/05/1991 along with the plaint map. The plaint map was amended in the year 1997. The appellant /plaintiff Gayaprasad during his cross examination at para 5 has specifically mentioned that in sale deed Ex. P/11 boundaries are wrongly mentioned and he did not pay attentions to this factum until he filed this civil suit. In view of the above fact that the boundaries in the sale deed by which the plaintiffs claimed their title does not match with the boundaries of disputed land, it is not proved that the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 15 )- F.A. No. 70 of 2002 disputed land was purchased by the appellants/plaintiffs vide registered sale deed Ex. P/11. Section 92 of the Indian Evidence Act bars giving of oral evidence on a written document except to prove that the document reflects a sham transaction. Therefore, the oral evidence adduced by plaintiff that the boundaries in the sale deed Exhibit P-1 are wrongly mentioned and actual boundaries are different from those mentioned in sale deed, is not acceptable. Since it is not proved that the land purchased by the plaintiff is the disputed land, therefore, the statement of the appellant/plaintiff Gayaprasad is not acceptable that the defendant has encroached upon the disputed land because the land on which he has claimed his possession had not been sold to him as per sale deed Exhibit P-1.

18. The appellants /plaintiffs have examined the Revenue Inspector Ramesh Singh Gaur to prove their case. However, this witness has failed to explain the boundaries and location of the survey No. 25/1, therefore, the evidence of this witness does not support the case of the appellants/plaintiffs.

19. The appellants /plaintiffs have pleaded as well as stated Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 16 )- F.A. No. 70 of 2002 that they have purchased the land admeasuring 3 biswa and they have got possession over the entire land. In these situation also the case of plaintiff is not found to be proved because they have covered the entire area which was purchased by them from Baba Shyam Das.

20. Learned counsel for the appellants /plaintiffs has placed reliance on the judgments delivered by the Apex Court in the cases of Shreepat vs. Rajendra Prasad and Ors. reported in (2000) 6 Supreme 389, Haryana Waqf Board vs. Shanti Sarup and Ors. reported in 2008 (8) SCC 671 as well as the judgment delivered by this Court in the cases of Durga Prasad vs. Parveen Foujdar and Ors. reported in 1975 JLJ 340, Suresh Kumar vs. Town Improvement Trust, Bhopal reported in 1975 JLJ 468, Jaswant S/o Kashi Ram Yadav vs. Deen Dayal reported in 2011 (2) MPLJ 576 & Shailendra vs. Rakesh vide order dated 27/08/2018 passed in S.A. No. 641/2012 and argued that in this case the issue of encroachment and identity of suit land is involved, therefore, local commissioner should have been appointed by the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM -( 17 )- F.A. No. 70 of 2002 learned trial court. However,the facts and circumstances of the above mentioned cases are different from this case. Therefore, they do not help the appellants. In this case the boundaries mentioned in the sale deed which is the source of title is different from the plaint map and it is well settled that for collection of the evidence Commissioner cannot be appointed as held by this court in the case of Dharam Singh and Another vs. Deenanath and Ors. reported in 2019 (4) MPLJ 32.

21. In view of the above discussions, it is apparent that the plaintiffs have failed to prove their case. Therefore, this court does not find any perversity or illegality in the impugned judgment and decree.

22. Consequently, this appeal sans merits and is hereby dismissed.

(SUNITA YADAV) JUDGE Durgekar* Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 02-05-2023 06:18:53 PM

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