Madhya Pradesh High Court
Mangilal Mewada vs The State Of M.P. And Ors. on 3 December, 2014
1
SA No.1421 of 2005
3.12.2014
Shri Avinash Zargar, counsel for the appellant.
Shri Amit Kumar Sharma, counsel of respondent No.1
and 2.
He is heard on the question of admission.
ORDER
1. On behalf of the appellant/ plaintiff, this appeal is preferred under section 100 of the CPC being aggrieved by the judgment and decree dated 3.3.2005 passed by the First Addl. District Judge, Sehore in Civil Appeal No.29-A/05, affirming the judgment and decree dated 22.12.04 passed by the IInd Civil Judge, Sehore in COS No.30-A/04 whereby the suit of the appellant filed against the respondents for declaration and perpetual injunction with respect of the land in dispute described in the plaint on the basis of adverse possession was dismissed.
2. The appellant's counsel after taking me through the record of both the courts below along with the impugned judgment and the appeal memo argued that as per the pleadings and the available evidence adduced by the appellant, the appellant is coming in possession of the disputed land since last 40 years from the time of his fore-fathers and, in such premises, he being remained in uninterrupted possession, by declaring the title of himself over the property so also under the hostile title of the true owner and Bhumi Swami of such land had perfected the 2 SA No.1421 of 2005 title long before on the basis of adverse possession and pursuant to that, in the available circumstances, the trial court ought to have pass the decree for declaration and consequently for perpetual injunction. He further said that, in any case, when the declaratory decree could not be passed in favor of the appellant then on the basis of long possession the decree for perpetual injunction ought to have been passed by the trial court. In continuation he said that on challenging such judgment and decree by the appellant, the appellate court ought to have considered the aforesaid aspect and the question raised by the appellant before the appellate court but, on consideration, by affirming the judgment and decree of the trial court, his appeal was dismissed under wrong premises, on which, he has come to this court with this appeal. In the aforesaid premises, on the basis of the findings of adverse possession as well as perfecting the possessory title over the property, prayed to admit this appeal on the proposed substantial question of law mentioned in para-6 of the appeal memo. It was also argued that his prayer for declaration has been refused by both the courts below under wrong premises and contrary to the legal position.
3. Having heard the counsel at length, keeping in view the arguments advanced, I have carefully gone through the record of both the courts below along with the impugned judgment. As per findings of both the courts below based on the appreciation of the evidence, the uninterrupted possession over the disputed land 3 SA No.1421 of 2005 was not found with the appellant. In this regard the available revenue record and other documents had also been taken into consideration and on such consideration, it was also found that the appellant has failed to prove the requisite ingredient of adverse possession in the matter. Accordingly, the suit was dismissed by the trial court and such decree of dismissal was affirmed by the appellate court. In such premises, it is apparent that there is a concurrent findings of both the courts below holding that the appellant was not remained in uninterrupted possession by declaring himself to be the owner of the disputed property for the requisite period in the knowledge of the true owner of the property and, accordingly, the findings of both the courts below being concurrent findings of facts, could not be interfered under section 100 of the CPC, as such, the same is not giving rise to any question of law rather than substantial question of law. So, firstly only on such count the appeal deserves to be dismissed at the initial stage of motion hearing.
4. Apart the aforesaid, in view of the law laid down by the Apex Court in the matter of Gurudwara Sahib Vs. Gram Panchayat village Sirthala-2014(1) SCC 669(B) holding that the person who is claiming the right and title over the disputed property on the basis of the adverse possession has no authority to file the civil suit against the true owner of the property. So, in such premises, the impugned suit of the appellant was not entertainable even at the initial stage before the trial court and 4 SA No.1421 of 2005 when the suit itself was not entertainable under the law then in that circumstance, the trial court or the appellate court could not pass the decree for perpetual injunction in the matter because the basic ingredient or the legal possession of the appellant was not proved by the admissible circumstance or the documents. So, in such premises, also, I have not found any circumstance giving rise to frame any question of law rather than the substantial question of law for admission of this appeal.
5. In view of the aforesaid discussion, I have not found any merit in the proposed substantial questions of law for admission under section 100 of the CPC. Consequently, this appeal being devoid of any merit, deserves to be and is hereby dismissed. There shall be no order as to the cost.
(U.C.Maheshwari) Judge MKL