Madhya Pradesh High Court
The State Of Madhya Pradesh vs Gangaram on 22 August, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
S.A. No. 550/2011
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
Second Appeal No.550 of 2011
State of M.P. ... Appellant.
Defendant.
Vs.
Gangaram (Decd.) through L.Rs.
Mangilal & others. ... Respondent.
Plaintiff.
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Shri Mayank Purohit, Govt. Adv. for the appellant/State.
Ms. Bharti Lakkad, Adv. for respondents.
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JUDGMENT
(Delivered on 22nd August, 2019) The appellant/defendant has preferred this second appeal being aggrieved by judgment and decree dated 1.3.2011 passed by 2nd Additional District Judge, Shajapur whereby Civil Regular Appeal No.18-A/2010 filed by respondent/plaintiff has been allowed by decreeing the suit in his favour.
2. Facts of the case, in short, are as under :
(i) Respondent/plaintiff (since deceased, now represented through legal heirs) filed the suit for declaration of title and permanent injunction in respect of land bearing Survey No.206 area 0.19 Hect. (hereinafter referred to as "the suit land").
Before the settlement in the year 1998-99, the suit land was having Survey No.101/2 area 0.523 Hect. situated in Village Singarchori. The plaintiff filed the suit through his grandson by way of Power of Attorney dated 24.10.2008.
(ii) The suit land was initially in possession of the Head of the 2 S.A. No. 550/2011 Family - Chenaji who had two sons viz. Kalu and Rugga. The present plaintiff is grandson of Kalu. According to the plaintiff, the suit land came into his share and possession after partition in the family. He is in possession of the suit land since last more than 30 years from the period of his ancestors. Four months back, Patwari of Halka concerned came there to dispossess the plaintiff from the suit land being an encroacher. Thereafter, the plaintiff verified the land record and came to know that his name had been removed from the Column of "Bhoomi Swami" and the suit land had been recorded in the name of state Government, hence cause of action accrued in his favour to file the suit.
(iii) The defendant/State appeared and filed the written statement by submitting that the suit land is a Government land and the plaintiff is in possession as an encroacher and he is liable to be removed u/s. 248 of the M.P. Land Revenue Code, 1959 (MPLRC).
(iv) On the basis of pleadings in the plaint and the written statement, learned trial Court framed three issues. The plaintiff did not enter into the witness box, but examined Dulesingh as P.W.1 as Power of Attorney holder (Ex. P/21). The plaintiff got exhibited Khasra Panchsala vide Ex. P/1 to P/20. Khasra Panchsala of Samwat 2018-19 was filed, in which, name of Dhulji is recorded as 'Pakka Krishak'. In Khasra Panchsala of Samwat 2021-23, name of Gangaram is recorded as an encroacher in Column No.14, 16 and 18. In Khasra Panchsala of Samwat 2013-27, again the name of Gangaram is recorded in Para 12 as an encroacher and that continued up to Samwat 2090- 3 S.A. No. 550/2011
91. Likewise, in Khasra Panchsala of Samwat 2049-52 (year 1991-96) again the name of Gangaram is recorded as an encroacher.
(v) After appreciating the evidence came on record, learned trial Court came to the conclusion that though the plaintiff is in possession of the suit land, but did not acquire any title of "Bhoomi Swami" of the suit land, which belongs to the State Government; the plaintiff has failed to prove as to how he became owner of the suit land. Hence, by judgment and decree dated 31.3.2010 the suit has been dismissed for title, but a decree for permanent injunction has been granted that he be not dispossessed from the suit land without following the due process of law.
(vi) Being aggrieved by the aforesaid dismissal of the suit for declaration of title, the plaintiff preferred first appeal. Vide judgment and decree dated 1.3.2011, learned first appellate Court has reversed the findings recorded by the trial Court and held that the name of 'Dhulji' was recorded as "Pakka Krishak"
up to Samwat 2010 and without any order passed by the revenue authority, his name had been recorded as an encroacher. Learned first appellate Court has also held that by virtue of Section 158 of MPLRC, the plaintiff has acquired the title of "Bhoomi Swami". Vide the aforesaid judgment, learned first appellate Court has granted the decree of title in favour of the plaintiff, hence the present second appeal before this Court by the State.
3. The State/defendant has filed the present second appeal only on the ground that the plaintiff has wrongly been granted the decree of title u/s. 158 of MPLRC. The suit is not 4 S.A. No. 550/2011 maintainable without giving notice u/s. 80(2) of C.P.C. The defendant has suggested following substantial questions of law :
"(,) D;k izR;FkhZ ds vke eq[kR;kj ds }kjk fd;s x;s dFkuksa ds vk/kkj ij izR;FkhZ ds vk/kkj ij izR;FkhZds i{k esa t;i= iznku fd;k tk ldrk gS\ (ch) D;k /kkjk&80 lh-ih-lh- dk lwpuk i= fn, cxSj 'kklu ds fo:) izR;FkhZ dk okn izLrqr djus dk vf/kdkj gS\ (lh) D;k /kkjk&80(2) lh-ih-lh- dk vkosnu i= U;k;ky; esa izLrqr dj nsus ls lwpuki= izLrqr djus dh NwV iznku dh tk ldrh gS\ (Mh) D;k fopkj.k U;k;ky; ds }kjk oknh ds fo:) fof/kor dk;Zokgh djus ds t;i= dks izR;FkhZ ds }kjk pqukSrh ugha nsus ds i'pkr Hkh 'kklu ds fof/k lE;d izfdz;k ls csn[ky djus dk vf/kdkj lekIr fd;k tk ldrk gS\
4. I have heard the learned counsel appearing for the parties and perused the record.
5. Shri Mayank Purohit, learned Govt. Advocate appearing for the appellant-State/defendant, submits that the plaintiff did not enter into witness-box and on his behalf the power of attorney holder was examined, which is not permissible in view of the law laid down by the apex Court in the case of Janki Vashde Bhojwani V/s. Indusind Bank Ltd. :
AIR 2005 SC 439. He further submits that before filing the suit, notice u/s. 80 of C.P.C. was not given to the State, hence the suit is not maintainable. In support of his contention, he is relying over the judgment of apex Court in the case of Gopal Singh V/s. Swaran Singh : (2019) 2 SCC 177.
Appreciation & Conclusion .......
6. So far as maintainability of the suit for want of giving notice u/s. 80 of C.P.C. is concerned, the appellant has failed to 5 S.A. No. 550/2011 examine the proceedings of the civil suit before filing this appeal. The plaintiff filed the suit along with an application under Order 39 Rule 1 & 2 of C.P.C. seeking ex-parte injunction because the revenue authorities were trying to dispossess him.
He also filed an application u/s. 80(2) of the C.P.C. seeking permission to file the suit without issuance of notice u/s. 80(1) of the C.P.C. By order dated 20.2.2009, learned trial Court has allowed the application and granted permission to institute the suit. Hence, the aforesaid ground is not tenable hence rejected.
7. So far as grant of relief of title u/s. 158 of MPLRC is concerned, admittedly the name of forefather of the plaintiff was recorded as "Pakka Krishak" in the revenue record from Samwat 2008 to Samwat 2012 and thereafter, from Samwat 2018-19 onward, name of Gangaram has been recorded as an encroacher. There is no order on record by which such entry was changed by the revenue authorities. The possession of the plaintiff as well as possession of his forefathers has been found proved by both the Courts below since 1950. The burden was on the defendant to establish as to how the name of Gangaram and his forefather had been changed from "Pakka Krishak" to encroacher. No proceedings u/s. 248 of MPLRC were initiated against the plaintiff or his ancestors. Since the plaintiff and his ancestors are in possession prior to the enforcement of MPLRC, therefore, by virtue of Section 158 of MPLRC, they have perfected their title as "Bhoomi Swami". Therefore, there is no illegality and perversity in the finding recorded by learned first appellate Court in Para 20 of the impugned judgment. Para 20 of the impugned judgment is reproduced below :
6 S.A. No. 550/2011"20 - ;g lqLFkkfir fof/k gS] fd O;ogkj oknksa esa oknh dks viuk okn Lor% izekf.kr djuk gksrk gS ,oa U;k;ky; rF;ksa dh vfrlaHkkO;rk ds vk/kkj ij fof/k ds lqLFkkfir fl)karksa dk vuqlj.k djrs gq, fu'd"kZ nsrh gSA oknh ds mDr eq[R;kj vke us ,oa vU; nks oknh lkf{k;ksa us okn xzLr Hkwfe ij oknh xaxk jke ds dCts esa gksus ,oa Qly izkIr djus dk tks] vfHkdFku fd;k og izfroknh lk{kh ds izfr ijh{k.k esa dh xbZ LohdkjksfDr ls izekf.kr gS] fd okn xzLr Hkwfe ij 'kklu }kjk fdlh vU; dks dHkh iV~Vs ij ugh fn;k ,oa oknh }kjk gh oknxzLr Hkwfe ij yEcs le; ls d`f"k dk;Z fd;k tk jgk gSA oknxzLr Hkwfe ij lu~ 1950 ls oknh ds iwoZt ,oa lEor~ 1912 esa Hkwfe dk nks Hkkxksa esa foHkktu gksus ij /kwy th iDdk d`"kd ds :i esa ntZ fd;k] mDr nLrkostksa dk fuekZ.k izfroknh 'kklu }kjk fd;k x;k gSA ,sls esa fdl izdkj ckn ds o"kksZ esa oknh iwoZ esa iDdk d`"kd Hkwfe Lokeh gksrs gq, vfrdzked gks x;k] ;g fl) djus dk lcwr dk Hkkj izfroknh ij gh pyk tkrk gS] ijUrq izfroknh us ,slk dksbZ vfrdze.k izdj.k oknh ds fo:) cuk;k x;k gks] viuh lk{; ds }kjk crkus esa vlQy jgk gSA 'kkjnk vjksjk fo:) e0 iz0 jkT;] vkfn 2007 jktLo fu.kZ; 54 ds izdj.k esa ekuuh; e0 iz0 mPp U;k;ky; }kjk /kkjk 54 (7) ,oa /kkjk 158 e0 iz0 Hkw jktLo lafgrk] 1959 dh foospuk djrs gq, ;g fl)kar izfrikfnr fd;k gS] fd ;fn dksbZ O;fDr Hkw vfHkys[kksa esa iq[rk eks:lh ds :i esa izfo"V gqvk gS vkSj mls 1950 ds vf/kfu;e ds vUrxZr iDdk d`"kd ds :i esa lfEefyr fd;k x;k gS] rks mls Hkwfe Lokeh ds vf/kdkj vftZr gks tkrs gS ,oa bls vfUrer% izkIr gksrh gS rFkk i'pkr~orhZ dk;Zokgh esa mDr gd mRrjkf/kdkjh ds fo:) fo{kqC/k ugh gks ldrk gSA e/; izns'k Hkw jktLo lafgrk] 1959 dh /kkjk 117 esa izko/kku fd;k x;k gS] fd Hkw vfHkys[k esa dh xbZ izfof"V;ksa ds ckjs esa ;g mi & /kkj.kk dh tk;sxh] fd og lgh gS] tc rd fd rRizfrdwy lkfcr u dj fn;k tkosA oknh us okn xzLr Hkwfe ij viuk LoRo ,oa vkf/kiR; jktLo vfHkys[kksa esa gksus ,oa izfroknh }kjk mls fdlh Hkh izdkj [kafMr u dj ikus ds rdZ ds leFkZu esa Hkxorh ckbZ fo:) e/; izns'k 'kklu 2006 jktLo fu.kZ; 229 izLrqr fd;k ftlesa ekuuh; e/; izns'k mPp U;k;ky; us ;g fl)kar izfrikfnr fd;k gS] fd Hkwfe Lokeh ds uke esa Hkwfe vfHkfyf[kr gks vkSj jkT; dh Hkwfe ugha gks rFkk [kljk dh izfof"V;ka [akf.Mr ugha dh xbZ gks] rc izfof"V;ksa dh 'kq)rk dk mi /kkj.kkRed lcwr gSA izfroknh ds xokg ls Hkh oknh ds mDr rdZ dks cy feyrk gS] fd oknh ds fo:) dHkh vfrdze.k laca/kh dk;Zokgh ugha dh xbZ] tcfd 101@2 Hkwfe losZ cuus ds i'pkr~ /kwyth iDdk d`"kd ds :i esa lEor~ 2019 rd vafdr gksus ds i'pkr~ lEor~ 2020 ds [kljk ikap lkyk esa /kwy th ,oa Hkksuk th dks vfrdzked vafdr fd;k x;k] ftldk dksbZ dkj.k Hkh ugha crk;k x;k] ,oa izfroknh } 7 S.A. No. 550/2011 kjk dh xbZ mDr izfo"Vh izfroknh lk{kh uohu pan dqEHkdkj ds dFkuksa ls gh euekus rjhds ls fd;k tkuk izdV gks jgk gSA "
8. So far as non-examination of plaintiff is concerned, the entire case of the plaintiff is based on documentary as well as oral evidence. Certified copies of Ex. P/1 to P/20 have been filed and all have been duly proved by the Power of Attorney holder of the plaintiff. To that extent, the Power of Attorney holder can examine himself on behalf of the plaintiff to prove the certified copies of the revenue records.
9. So far as possession of the plaintiff is concerned, P.W.2 and P.W.3 have categorically proved his possession. Even the defendant's witness - D.W.1 did not dispute the possession of the plaintiff over the suit land. The finding in respect of possession was recorded by the trial Court and the same was not assailed by the appellant/defendant in first appeal, therefore, non-examination of plaintiff would not be fatal in this case. The Power of Attorney holder of the plaintiff has produced and proved the certified copies of the revenue entries. In the case of Janki Vashdeo Bhojwani (supra), Order 3 Rule 1 & 2 of C.P.C. empowers the holder of Power of Attorney to act on behalf of the principal. If the Power of Attorney holder renders some act in pursuance to power of attorney, he may depose for the principal in respect of such acts. Therefore, so far as examination of Power of Attorney holder for proving the certified copies of revenue entries and which have clearly established the case of the plaintiff, is concerned, learned first appellate Court did not commit any illegality in decreeing the suit. Even otherwise, the appellant/defendant did not raise this 8 S.A. No. 550/2011 objection before the trial Court as well as before the first appellate Court that the suit is liable to be dismissed due to non- examination of the plaintiff. For the first time, the appellant/defendant is raising the same before this Court.
10. In view of the above, I do not find any question of law much less substantial question of law, as proposed by the appellant, is involved in this appeal.
11. Resltantly, this appeal fails and is hereby dismissed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.08.27 16:49:43 +05'30'