Madhya Pradesh High Court
Smt. Buttan Bai vs The State Of Madhya Pradesh on 28 February, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 28 th OF FEBRUARY, 2024
SECOND APPEAL No. 990 of 2022
BETWEEN:-
SMT. BUTTAN BAI W/O SHRI KAMTA PRASAD
KUSHWAHA, AGED ABOUT 80 YEARS, OCCUPATION:
HOUSE WIFE, R/O VILLAGE DELAURA (TIKURIA TOLA),
TEHSIL RAGHURAJNAGAR, DISTRICT SATNA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI R. P. KHARE - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH THE
COLLECTOR SATNA (MADHYA PRADESH)
2. UNION OF INDIA, MINISTRY OF AVIATION,
THROUGH AERODROME OFFICER, CIVIL
AVIATION, KANNOOR, DISTRICT-KANPUR
(UTTAR PRADESH)
SMT. HARIRAJ KUMARI (NOW DECEASED)
THROUGH LEGAL REPRESENTATIVES
3A. SMT. ASHA KUMARI SINGH, WD/O LATE SHRI
ADITYA PRATAP SINGH, AGED ABOUT 64 YEARS,
3B. BHANVI SINGH D/O LATE SHRI ADITYA PRATAP
SINGH, AGED ABOUT 42 YEARS,
3C. APARNA SINGH, D/O LATE SHRI ADITYA PRATAP
SINGH, AGED ABOUT 32 YEARS,
ALL R/O TIKURIYA TOL, OPPOSITE NATARAJ DAL
MILL, TEHSIL RAGHURAJNAGAR, DISTRICT
SATNA (MADHYA PRADESH)
4. STATE OF M.P., THROUGH NAZUL OFFICER,
SATNA DISTRICT SATNA (MADHYA PRADESH)
2
.....RESPONDENTS
(RESPONDENT NOS.1 AND 4-STATE BY SHRI JITENDRA SINGH PARIHAR
- PANEL LAWYER)
Reserved on : 15.02.2024
Pronounced on : 28.02.2024
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
In this second appeal, the appellant/plaintiff has challenged the judgment and decree passed on 12.2.2022 by Ninth District Judge, Satna, in RCA No.115/2017 affirming the judgment and decree of Second Civil Judge, Class I, Satna, passed on 12.4.2017 in RCSA No.900362/2008. By these judgments, the civil suit filed by plaintiff regarding declaration and permanent injunction on suit property having Survey No.66, measuring 50 X 80 sq.ft. was dismissed.
2 . The appellant shall hereinafter be referred to as "plaintiff" while the respondents shall be referred to as "defendants" in congruence with their serial number.
3(a). The facts relevant here are that a civil suit was filed by plaintiff claiming that in the year 1960, Nyay Panchayat, Delaura, district Satna, allotted a land measuring 50 X 80 sq.ft. in Survey No.66 to the plaintiff against which plaintiff deposited the amount on 28.2.1960 and obtained a written permission regarding construction; it is claimed that plaintiff is in possession of suit property since then; proceeding relating to encroachment was initiated by Tahsildar (Nazul), Satna, in 1971 against plaintiff and decided it against her; appeal filed before the SDO, Raghurajnagar, district Satna, was also dismissed but Commissioner, Rewa Zone, allowed the second appeal of plaintiff and set aside the orders of both the courts below on 31.7.1974; on 17.7.1976 Tahsildar 3 (Nazul), Satna, dismissed the proceedings of encroachment instituted against the plaintiff; later an application was filed by plaintiff to get her name recorded in revenue papers but despite a favourable report given by Revenue Inspector on 24.10.1987, no order was passed in her favour; defendant no.3 was in possession of adjoining land and forged documents to legalize her possession; on the basis of a forged order, she was recorded as owner of one acre land in Survey No.66 and later this area was defined as Survey No.66/2; the remaining area was reckoned as Survey No.66/1 and it was recorded in favour of Union of India; this division of Survey No.66 was illegal and against the right, title and interest of plaintiff who is in possession of suit property ever since 1960, therefore reliefs of declaration of title and permanent injunction were prayed for in the civil suit. The defendants no.2 and 3 filed their separate written statements and challenged the contentions of plaintiff.
3(b). The trial court framed eight issues and recorded the evidence of both the parties; total three witnesses were examined by plaintiff while defendant nos.2 and 3 examined one witness each; documents of Exs.P-1 to P-40 and Exs.D-1 to D-22 were produced in evidence. After assessing and analyzing the evidence, the suit was dismissed by the trial court and appeal filed by plaintiff was also dismissed under the impugned judgment and decree.
4. The grounds raised in this appeal are that the courts below failed to appreciate the lengthy documentary evidence produced by the plaintiff; these documents have proved that the plaintiff is in possession of land of original Survey No.66 (now No.66/2) since 1960; the admissions made by defendant's witness Arvind Kumar (D.W.1) has also not been taken into consideration; in the absence of any document filed on behalf of defendant no.2, adverse 4 inference should have been drawn against it in the light of claim of defendants that Survey No.66, having an area of 1.81 acre, was acquired for the purpose of construction of Aerodrome, how a part of this land could have been allotted to defendant no.3; it is pleaded that if the allotment in favour of defendant no.3 is valid, then the possession of plaintiff over the remaining land of Survey No.66/2 ought to have been held valid. It is, therefore, submitted that the appeal should be admitted on the proposed substantial questions of law and be decided in favour of plaintiff.
5. Arguments of counsel for plaintiff and respondent nos.1 and 3 have been heard on admission and the records are perused.
6 . This case is primarily based upon documentary evidence to claim possession and title. It is pleaded by plaintiff that she was given permission to construct the house on the suit property in the year 1960 by Nyay Panchayat, Delaura, and she is in possession of that property since 1960. Admittedly, no patta was produced by plaintiff to show that the suit property was ever given into lease to her by Nyay Panchayat or any other revenue authority. No provision of law was argued on behalf of plaintiff which would suggest that permission to construct a house would imply lease or title in favour of the person seeking permission. Thus, on the basis of documents filed by plaintiff, only this fact stands proved that she was allegedly given permission to construct the house without there being any title in her favour regarding suit property. Further, there is no material placed on record to show that before granting this permission to construct, the title or ownership of plaintiff was investigated by the authority giving the permission.
7. Admittedly, the right of plaintiff to continue with the possession of suit property was challenged before higher revenue authorities and under the remand 5 order, statements of Uday Singh, son of Shankar Singh, the then Sarpanch of Nyay Panchayat, Delaura, were recorded on 20.8.1985, marked as Ex.P-28. These statements reveal that only on the basis of memory, this witness has testified the fact of giving permission to the plaintiff to construct but no record was available in Nyay Panchayat, Delaura, to confirm that any such permission was ever given in writing to the plaintiff. Thus, the alleged permission in favour of plaintiff was a doubtful fact in the case and no documentary evidence was produced to dispel this doubt.
8 . The claim of plaintiff is that she came into possession of the suit property in the year 1960 and continued in possession throughout the period, but pleadings made by her reveal that she was asked to remove her possession in the year 1971 when a case of encroachment was registered against her by Tahsildar (Nazul) under Case No.50A-68/1971-72. The pleadings of plaintiff, therefore, reveal that she remained in alleged peaceful possession over the suit property hardly for 11 years i.e. from 1960 to 1971 and her right to continue with the possession was challenged by a case registered against her for removal of encroachment. 11 years possession does not confer title of any kind on property, including the Government property. Admittedly, her possession was in continuous dispute since 1971 and this fact is manifest from the documents submitted by the plaintiff herself, therefore claiming title on the basis of adverse possession cannot be a successful plea in the present case.
9 . Plaintiff has relied upon some of the enquiry reports of revenue authorities, marked as Exs.P-23, P-25, P-26 and P-29, but these reports cannot have the effect of conferring title on the plaintiff. Ex.P-30 is the order by which review of order of Tahsildar (Nazul) dated 17.7.1976 was proposed and in the 6 light of this order dated 23.8.1984 subsequent documents, namely Ex.P-25, P- 26 and P-29, came into existence. The plaintiff has failed to file any further order passed thereafter on the basis of these revenue reports, therefore it is confirmed that by Appeal No.330A-68/73-74 the order passed in favour of plaintiff by Tahsildar (Nazul) on 8.9.1972 was directed to be reviewed under the remand order and the order passed under this remand direction dated 17.7.1976 was directed to be reviewed and despite some reports in favour of plaintiff, as mentioned earlier, no final order has been passed to confirm that the plaintiff has obtained ownership rights on the suit property either through a valid patta or on the basis of long, peaceful and adverse possession.
10. Plaintiff has grievance against the lease-deed granted in favour of original defendant no.3 and entry of her name in the revenue documents, but in the absence of any rightful ownership or claim in favour of plaintiff, she does not have any right to contest or challenge the title of original defendant no.3. Her claim is based upon the fact that if the title of original defendant no.3 can be acknowledged then she should also be considered to be the owner of suit property, but that argument is completely void of any logic. The plaintiff is supposed to prove her title and there cannot be any competitive claim that the title of original defendant no.3 would bestow title of suit property upon plaintiff as well.
11. The property belonging to defendant no.3 is not in question before this court and there is no demarcation report showing that the properties of plaintiff and defendant no.3 are overlapping or original defendant no.3 has encroached upon any part of the suit property. Moreover, plaintiff never attempted to get the properties of the two parties demarcated by boundaries. Thus, there is no evidence available before this court to suggest that both the 7 parties are having any rival claims over the same property. The property entered in revenue records in favour of original defendant no.3 is of Survey No.66/2 having an area of one acre. The entire plaint does not reveal in which part of Survey No.66 her property lies and only in relief para she has suddenly made a claim that her property lies in Survey No.66/1, but on what basis this claim is being made is not revealed in the entire plaint.
12. The documents relied upon by the plaintiff regarding spot inspection and suggesting her possession over the suit property disclose that the officer giving the possession report in favour of plaintiff was himself not clear about the survey number of the property in which he was showing the possession of plaintiff. This fact can be gathered from the documents, marked as Exs.P-25, P- 26 and P-29. In all these three documents, it is mentioned that the inspection was made of land of Survey Nos.66 and 67. In none of these documents, the exact survey number of land in the ownership of plaintiff is mentioned.
13. On the basis of above discussion this court finds that in the light of documents produced by plaintiff, the courts below have committed no error in holding that the plaintiff has failed to prove her title over the suit property and from her documents it appears that in the year 1971 she was found to be an encroacher. Accordingly, this court finding no substantial questions of law involved herein, dismisses this second appeal in limine.
14. Let the records of the courts below be sent back along with a copy of this order for information and necessary compliance.
(ANURADHA SHUKLA) JUDGE ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2024.02.29 14:06:53 +05'30' Adobe Reader version: 11.0.8