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Madhya Pradesh High Court

Mahadev Yadav vs Brajlal Yadav on 31 March, 2017

               HIGH COURT OF MADHYA PRADESH
                PRINCIPAL SEAT AT JABALPUR

    Single Bench: Hon'ble Shri Justice Ashok Kumar Joshi
                   Second Appeal No.810/2016

Mahadev Yadav S/o Rammanohar and
four others ...Appellants/defendants
                               Versus


 1. Brajlal Yadav S/o Ramsanehi ...Respondent/plaintiff
 2. State of M.P. ….Respondent/defendant No.6




Shri Ramsuphal Chaturvedi, learned counsel for the appellants.


Whether approved for reporting: Yes/No

                           ORDER

(Pronounced on 31.3.2017)

1. Appellants/original defendants No.1 to 5 have filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9.5.2016 passed by the Additional District Judge, Teonthar, District Rewa in Civil Appeal No.89-A/2015 reversing the judgment and decree dated 11.9.2015 passed by the Civil Judge Class-II, Teonthar, District Rewa in Civil Suit No.105- A/2012. The trial Court had dismissed the suit filed by the present respondent No.1/plaintiff Brijlal Yadav for a relief of perpetual injunction in relation to agricultural land bearing survey no.71/5 area 2.00 acres of village Hanumanganj, Tehsil Teonthar, District Rewa, whereas the lower Appellate Court has allowed the appeal filed by plaintiff Brijlal Yadav and decreeing his suit has issued perpetual injunction against the defendants No.1 to 5/present appellants not to interfere in possession of plaintiff over the disputed land, except following the procedure established by law.

2. Undisputed facts are that defendants No.2 to 5 are sons of defendant no.1 Mahadev Yadav. Plaintiff Brijlal’s father Ramsanehi had purchased the land bearing survey no.71 from its previous owner through a registered sale-deed dated 30.8.1978 (Ex.P.6). It is also undisputed that disputed land bearing survey no.71/5 had fallen in share of plaintiff Brijlal in partition occurred among father and brothers of the plaintiff. It is undisputed that adjoining agricultural lands bearing survey no.71/4, 71/8 and 71/9 were purchased by defendant no.1 Mahadev Yadav. It is also not disputed that after purchasing the land bearing survey no.71, plaintiff’s father Ramsanehi had filed an application under Section 129 of the M.P. Land Revenue Code for amendment in map, which was allowed by an order passed by the relating Revenue Court on 17.1.2011, but in Revenue Revision No.315/v-12/2010-11 filed by the defendant No.1, the Additional Collector, District Rewa had allowed the revision filed by the defendant no.1 Mahadev by an order (Ex.D-14) passed on 9.3.2015 and had set aside the order dated 17.1.2011 and the Additional Collector directed the lower Revenue Court to get demarcation of questioned lands intimating adjoining agriculturists and for fresh demarcation and deciding the objections received regarding demarcation report in accordance with provision of Section 129 of the M.P. Land Revenue Code.

3. Plaintiff Brijlal Yadav filed his suit on pleadings that he is a recorded owner and possession-holder of disputed agricultural land bearing survey no.71/5 area 2.00 acres, which is part of land purchased by his father and had fallen in share of the plaintiff in the family partition. The Tehsildar ordered for correction in trace map in accordance with four-boundaries mentioned in the registered sale-deed executed in favour of plaintiff’s father, whereas the trace map believed by the defendants is prepared by the Patwari, which is without jurisdiction. Defendants No.1 to 5 on 10.9.2012 threatened and tried forcefully to take possession of the disputed land. Thus, cause of action arose to the plaintiff for a decree of perpetual injunction, thus relief of perpetual injunction to protect the possession of the plaintiff over the disputed land was prayed.

4. In joint written statement filed by the defendants No.1 to 5 before the trial Court, it was pleaded that the plaintiff’s father secretly and without intimating the defendants had got an order from Tehsildar, Teonthar regarding correction of the map and in the garb of that order, plaintiff had got included defendants’ 0.82 acre agricultural land in his land and the revenue revision filed by the defendants was pending in the Revenue Court of Additional Collector, Rewa at the time of filing of the written statement. Defendant No.1 Mahadev had purchased lands being survey nos.71/4, 71/8 and 71/9 through registered sale-deed from previous owner Ramayan Singh and defendants had got the trace map corrected in the year 1986 and continued in possession of his (defendant No.1's) land. The defendants had previously got demarcation of the defendants’ land on 9.11.1986 through Revenue Inspector, Circle Teonthar and at that time spot panchnama report and field book were prepared and that demarcation was approved by the Tehsildar, Circle Gird on 28.4.1987. Above mentioned previous demarcation was never challenged by the plaintiff or his father. Plaintiff is not entitled for any relief. Thus it was prayed that plaintiff’s suit be dismissed.

5. No any relief was claimed against defendant No.6 State of M.P./present respondent no.2. No written statement was filed by the State before the trial Court.

6. The trial Court framed issues on pleadings of the parties and before it, four witnesses were examined by the plaintiff including plaintiff Brijlal (P.W.1) and his father Ramsanehi (P.W.4) and defendants’ four witnesses were also examined. The trial Court after hearing recorded findings that it was not proved that plaintiff is possession-holder of the disputed land; it was not proved that the defendants no.1 to 5 illegally interfered in legal possession of the plaintiff; plaintiff is not entitled for perpetual injunction against the defendants; the suit has been filed within limitation and it also observed that the plaintiff has not come before Court for discretionary relief of perpetual injunction and consequently, plaintiff’s suit was dismissed. The first appeal filed by the plaintiff had remained successful and the Appellate Court had set aside the decree regarding dismissal of the suit passed by the trial Court and after allowing the appeal filed by the plaintiff, it has issued perpetual injunction as indicated above.

7. Learned counsel for the appellants vehemently contended that the lower Appellate Court had erred in reversing the well reasoned judgment and decree passed by the trial Court and the lower Appellate Court had not properly appreciated the oral and documentary evidence filed by the parties. It has been further argued that plaintiff Brijlalal (P.W.1) has clearly admitted in para no.15 (cross-examination) that between him and defendants there is no any dispute regarding ownership and dispute is only relating to correction of the map. It has been forcefully argued that plaintiff remained unsuccessful in proving that on 10.9.2012, the appellants had threatened him to dispossess, thus the decree passed by the lower Appellate Court is not in accordance with law.

8. It is clear from the pleadings and evidence of both parties that there is no any dispute regarding the ownership of disputed land bearing survey no.71/5 and adjoining agricultural lands bearing survey no.71/4, 71/8 and 71/9 owned by the defendants. It is clear from evidence of both parties that the dispute had arisen at the time of demarcation made by the revenue officials.

9. Defendant No.1 Mahadev clearly deposed in para no.15 (cross- examination) that plaintiff's father Ramsanehi got demarcation of the disputed land, in which plaintiff's father measured his (defendant No.1's) 70 decimals agricultural land in any plaintiff's land, which is possessed by him and when Revenue Inspector Badri Prasad had previously demarcated, then his two beegha land was found in possession of Ramsanehi. In the same para, defendant No.1 had deposed that his possession is in accordance with the old map, whereas in subsequent map, plaintiff has included his 70 decimals land. Defendant No.1 had clearly deposed that if anyone would try to cultivate on this 70 decimals land, then he will raise a dispute.

10. Defendant No.2 Lavkush (D.W.2), who is son of Mahadev deposed in para 11 (cross-examination) that at the time of demarcation, he has received 90 decimals land within disputed land bearing survey no.71/5, recorded in the name of father of plaintiff and he has possessed over that 90 decimals part of disputed land, which was received by him at the time of demarcation, but in the next breath in the same para, deposed that to obtain possession of 90 decimals land, he has filed claim before the relating Tehsildar, which is still pending. In para 12, Lavkush (D.W.2) deposed that when subsequently Revenue Inspector Surendra made demarcation, thereafter on police report of Revenue Inspector Surendra, criminal case in Court is pending and he is not agreed with the measurements made by Surendra because he was showing plaintiff's land in his possession.

11. Plaintiff Brijlal (P.W.1) deposed in para 12 that his father Ramsanehi had filed an application for demarcation of disputed land and previously the defendant No.1 Mahadev had filed an application for demarcation and at that time, the Revenue Inspector Badri Prasad Mishra had come but in that demarcation, his one or two decimal land was entrapped in the land of defendant No.1 Mahadev and in this para, he has clearly admitted that between him and the defendant No.1 Mahadev, demarcation is still disputed and it could not be settled. In para 14, plaintiff deposed that when his father got demarcated his land, then defendant No.1 Mahadev's 10 decimals land was entrapped. It is clear that witnesses of both parties have given their deposition in their village language and tried to depose that his land is entrapped in opponent's land, which means that at the time of demarcation, it was found that each party is having in his possession a part of opponent's land. It is clear from the above mentioned discussion that there is existing dispute between the parties regarding identity of their lands and encroachment of another over his land.

12. It is also clear from certified copy of the order dated 9.3.2015 (Ex.D.14) passed by the Additional Collector, District Rewa, wherein it is mentioned that on demarcation made by the Revenue Inspector on 12.7.2009, it was found that plaintiff's father Ramsanehi had illegal possession of 0.90 decimal land and similarly some other adjoining agriculturalists Buddhilal and Ramnewaj are also having illegal possession i.e. encroachment on other's lands and thus the Additional Collector had ordered for fresh demarcation. In this order, it is also mentioned that after demarcation, stones were tried to be placed by digging, then the defendant No.1 Mahadev and his sons had opposed and police case was also registered against Mahadev and his sons. Thus, it could not be inferred that there is no any dispute regarding the land which is in possession of the plaintiff.

13. It appears that the learned trial Court had only picked up some sentences from different parts of depositions of some witnesses and based inferences only on these sentences. It is well established that the deposition given by any witness should be totally considered and inferences should not be drawn from stray sentences. It is clear that the oral evidence given by witnesses could not resolve such type of dispute. It is clear that the Appellate Court had only passed a decree for perpetual injunction that without following legal procedure, the possession of the plaintiff should not be disturbed. If the appellants believe that any part of their land is in possession of the plaintiff, then they are free to file a suit for obtaining possession of such encroached portion. It is clear that the learned trial Court's findings were perverse and not based on total appreciation of evidence produced by the parties. It is clear that there is no any perversity in any of the findings recorded by the lower Appellate Court and it has properly and legally analysed the entire oral and documentary evidence available on record.

14. I have not found any substance on which the impugned judgment and decree of the lower Appellate Court could be said to be contrary to any law or procedure, consequently, I have not found any substance or circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Single Bench: Hon'ble Shri Justice Ashok Kumar Joshi Second Appeal No.810/2016 Mahadev Yadav S/o Rammanohar and four others ...Appellants/defendants Versus

1. Brajlal Yadav S/o Ramsanehi ...Respondent/plaintiff

2. State of M.P. ….Respondent/defendant No.6 Shri Ramsuphal Chaturvedi, learned counsel for the appellants.

Whether approved for reporting: Yes/No ORDER (Pronounced on 31.3.2017)

1. Appellants/original defendants No.1 to 5 have filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9.5.2016 passed by the Additional District Judge, Teonthar, District Rewa in Civil Appeal No.89-A/2015 reversing the judgment and decree dated 11.9.2015 passed by the Civil Judge Class-II, Teonthar, District Rewa in Civil Suit No.105- A/2012. The trial Court had dismissed the suit filed by the present respondent No.1/plaintiff Brijlal Yadav for a relief of perpetual injunction in relation to agricultural land bearing survey no.71/5 area 2.00 acres of village Hanumanganj, Tehsil Teonthar, District Rewa, whereas the lower Appellate Court has allowed the appeal filed by plaintiff Brijlal Yadav and decreeing his suit has issued perpetual injunction against the defendants No.1 to 5/present appellants not to interfere in possession of plaintiff over the disputed land, except following the procedure established by law.

2. Undisputed facts are that defendants No.2 to 5 are sons of defendant no.1 Mahadev Yadav. Plaintiff Brijlal’s father Ramsanehi had purchased the land bearing survey no.71 from its previous owner through a registered sale-deed dated 30.8.1978 (Ex.P.6). It is also undisputed that disputed land bearing survey no.71/5 had fallen in share of plaintiff Brijlal in partition occurred among father and brothers of the plaintiff. It is undisputed that adjoining agricultural lands bearing survey no.71/4, 71/8 and 71/9 were purchased by defendant no.1 Mahadev Yadav. It is also not disputed that after purchasing the land bearing survey no.71, plaintiff’s father Ramsanehi had filed an application under Section 129 of the M.P. Land Revenue Code for amendment in map, which was allowed by an order passed by the relating Revenue Court on 17.1.2011, but in Revenue Revision No.315/v-12/2010-11 filed by the defendant No.1, the Additional Collector, District Rewa had allowed the revision filed by the defendant no.1 Mahadev by an order (Ex.D-14) passed on 9.3.2015 and had set aside the order dated 17.1.2011 and the Additional Collector directed the lower Revenue Court to get demarcation of questioned lands intimating adjoining agriculturists and for fresh demarcation and deciding the objections received regarding demarcation report in accordance with provision of Section 129 of the M.P. Land Revenue Code.

3. Plaintiff Brijlal Yadav filed his suit on pleadings that he is a recorded owner and possession-holder of disputed agricultural land bearing survey no.71/5 area 2.00 acres, which is part of land purchased by his father and had fallen in share of the plaintiff in the family partition. The Tehsildar ordered for correction in trace map in accordance with four-boundaries mentioned in the registered sale-deed executed in favour of plaintiff’s father, whereas the trace map believed by the defendants is prepared by the Patwari, which is without jurisdiction. Defendants No.1 to 5 on 10.9.2012 threatened and tried forcefully to take possession of the disputed land. Thus, cause of action arose to the plaintiff for a decree of perpetual injunction, thus relief of perpetual injunction to protect the possession of the plaintiff over the disputed land was prayed.

4. In joint written statement filed by the defendants No.1 to 5 before the trial Court, it was pleaded that the plaintiff’s father secretly and without intimating the defendants had got an order from Tehsildar, Teonthar regarding correction of the map and in the garb of that order, plaintiff had got included defendants’ 0.82 acre agricultural land in his land and the revenue revision filed by the defendants was pending in the Revenue Court of Additional Collector, Rewa at the time of filing of the written statement. Defendant No.1 Mahadev had purchased lands being survey nos.71/4, 71/8 and 71/9 through registered sale-deed from previous owner Ramayan Singh and defendants had got the trace map corrected in the year 1986 and continued in possession of his (defendant No.1's) land. The defendants had previously got demarcation of the defendants’ land on 9.11.1986 through Revenue Inspector, Circle Teonthar and at that time spot panchnama report and field book were prepared and that demarcation was approved by the Tehsildar, Circle Gird on 28.4.1987. Above mentioned previous demarcation was never challenged by the plaintiff or his father. Plaintiff is not entitled for any relief. Thus it was prayed that plaintiff’s suit be dismissed.

5. No any relief was claimed against defendant No.6 State of M.P./present respondent no.2. No written statement was filed by the State before the trial Court.

6. The trial Court framed issues on pleadings of the parties and before it, four witnesses were examined by the plaintiff including plaintiff Brijlal (P.W.1) and his father Ramsanehi (P.W.4) and defendants’ four witnesses were also examined. The trial Court after hearing recorded findings that it was not proved that plaintiff is possession-holder of the disputed land; it was not proved that the defendants no.1 to 5 illegally interfered in legal possession of the plaintiff; plaintiff is not entitled for perpetual injunction against the defendants; the suit has been filed within limitation and it also observed that the plaintiff has not come before Court for discretionary relief of perpetual injunction and consequently, plaintiff’s suit was dismissed. The first appeal filed by the plaintiff had remained successful and the Appellate Court had set aside the decree regarding dismissal of the suit passed by the trial Court and after allowing the appeal filed by the plaintiff, it has issued perpetual injunction as indicated above.

7. Learned counsel for the appellants vehemently contended that the lower Appellate Court had erred in reversing the well reasoned judgment and decree passed by the trial Court and the lower Appellate Court had not properly appreciated the oral and documentary evidence filed by the parties. It has been further argued that plaintiff Brijlalal (P.W.1) has clearly admitted in para no.15 (cross-examination) that between him and defendants there is no any dispute regarding ownership and dispute is only relating to correction of the map. It has been forcefully argued that plaintiff remained unsuccessful in proving that on 10.9.2012, the appellants had threatened him to dispossess, thus the decree passed by the lower Appellate Court is not in accordance with law.

8. It is clear from the pleadings and evidence of both parties that there is no any dispute regarding the ownership of disputed land bearing survey no.71/5 and adjoining agricultural lands bearing survey no.71/4, 71/8 and 71/9 owned by the defendants. It is clear from evidence of both parties that the dispute had arisen at the time of demarcation made by the revenue officials.

9. Defendant No.1 Mahadev clearly deposed in para no.15 (cross- examination) that plaintiff's father Ramsanehi got demarcation of the disputed land, in which plaintiff's father measured his (defendant No.1's) 70 decimals agricultural land in any plaintiff's land, which is possessed by him and when Revenue Inspector Badri Prasad had previously demarcated, then his two beegha land was found in possession of Ramsanehi. In the same para, defendant No.1 had deposed that his possession is in accordance with the old map, whereas in subsequent map, plaintiff has included his 70 decimals land. Defendant No.1 had clearly deposed that if anyone would try to cultivate on this 70 decimals land, then he will raise a dispute.

10. Defendant No.2 Lavkush (D.W.2), who is son of Mahadev deposed in para 11 (cross-examination) that at the time of demarcation, he has received 90 decimals land within disputed land bearing survey no.71/5, recorded in the name of father of plaintiff and he has possessed over that 90 decimals part of disputed land, which was received by him at the time of demarcation, but in the next breath in the same para, deposed that to obtain possession of 90 decimals land, he has filed claim before the relating Tehsildar, which is still pending. In para 12, Lavkush (D.W.2) deposed that when subsequently Revenue Inspector Surendra made demarcation, thereafter on police report of Revenue Inspector Surendra, criminal case in Court is pending and he is not agreed with the measurements made by Surendra because he was showing plaintiff's land in his possession.

11. Plaintiff Brijlal (P.W.1) deposed in para 12 that his father Ramsanehi had filed an application for demarcation of disputed land and previously the defendant No.1 Mahadev had filed an application for demarcation and at that time, the Revenue Inspector Badri Prasad Mishra had come but in that demarcation, his one or two decimal land was entrapped in the land of defendant No.1 Mahadev and in this para, he has clearly admitted that between him and the defendant No.1 Mahadev, demarcation is still disputed and it could not be settled. In para 14, plaintiff deposed that when his father got demarcated his land, then defendant No.1 Mahadev's 10 decimals land was entrapped. It is clear that witnesses of both parties have given their deposition in their village language and tried to depose that his land is entrapped in opponent's land, which means that at the time of demarcation, it was found that each party is having in his possession a part of opponent's land. It is clear from the above mentioned discussion that there is existing dispute between the parties regarding identity of their lands and encroachment of another over his land.

12. It is also clear from certified copy of the order dated 9.3.2015 (Ex.D.14) passed by the Additional Collector, District Rewa, wherein it is mentioned that on demarcation made by the Revenue Inspector on 12.7.2009, it was found that plaintiff's father Ramsanehi had illegal possession of 0.90 decimal land and similarly some other adjoining agriculturalists Buddhilal and Ramnewaj are also having illegal possession i.e. encroachment on other's lands and thus the Additional Collector had ordered for fresh demarcation. In this order, it is also mentioned that after demarcation, stones were tried to be placed by digging, then the defendant No.1 Mahadev and his sons had opposed and police case was also registered against Mahadev and his sons. Thus, it could not be inferred that there is no any dispute regarding the land which is in possession of the plaintiff.

13. It appears that the learned trial Court had only picked up some sentences from different parts of depositions of some witnesses and based inferences only on these sentences. It is well established that the deposition given by any witness should be totally considered and inferences should not be drawn from stray sentences. It is clear that the oral evidence given by witnesses could not resolve such type of dispute. It is clear that the Appellate Court had only passed a decree for perpetual injunction that without following legal procedure, the possession of the plaintiff should not be disturbed. If the appellants believe that any part of their land is in possession of the plaintiff, then they are free to file a suit for obtaining possession of such encroached portion. It is clear that the learned trial Court's findings were perverse and not based on total appreciation of evidence produced by the parties. It is clear that there is no any perversity in any of the findings recorded by the lower Appellate Court and it has properly and legally analysed the entire oral and documentary evidence available on record.

14. I have not found any substance on which the impugned judgment and decree of the lower Appellate Court could be said to be contrary to any law or procedure, consequently, I have not found any substance or circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.

(ASHOK KUMAR JOSHI) JUDGE C