Madhya Pradesh High Court
Vijay Namdev vs The State Of Madhya Pradesh on 27 August, 2014
S.A.No.89/2012
27.8.2014
Shri A.D. Mishra, learned counsel for the appellants.
This second appeal under Section 100 of the Code of
Civil Procedure, by the plaintiffs is against the judgment and
decree dated 17.10.2011, passed in regular Civil Appeal No.7-
A/2011, by the Additional District Judge, Pipariya, arising out
of judgment and decree dated 27.1.2011, passed in Civil Suit
No.10-A/2009, passed by the Civil Judge Class-I, Pipariya,
dismissing the suit of the appellants.
The appellants have approached the Civil Court by filing
a suit claiming inter alia that by virtue of a sale deed certain
land was purchased by them. From the date of purchase of
the land, they were in possession of the same over which
their house is constructed. By the side of the land so
purchased by the appellants, certain Nazul land was situated,
which was subsequently declared to be Abadi land. A
common way which was available on Sheet No.25-D, Plot
No.3, admeasuring 327 sq. meter was obstructed by one
Kamran Shah and against him the complaint was made by
the appellants and all other residents of the ward. The action
was initiated against the said person and the common way
was got opened. Said Kamran Shah filed a suit against the
State seeking declaration of his title over the aforesaid land,
which suit was dismissed, against which an appeal was also
preferred, but the same was dismissed. On account of such
reason, a complaint was made against the appellants before
the Sub Divisional Officer, Pipariya and Collector
Hoshangabad, regarding encroachment made on the Nazul
land. After giving a notice, without affording proper
opportunity of hearing, an order of eviction was passed by
the Sub Divisional Officer, Pipariya, against the appellants,
therefore, the suit for declaration that the order so issued and
the action initiated for removal of the appellants/ plaintiffs
from the land by the Sub Divisional Officer was null and void.
A further relief was claimed by the plaintiffs that by adverse
possession within the knowledge of the defendants/
respondents for a long period, the appellants have perfected
their title over the land in suit. A decree of injunction was also claimed.
The suit filed by the appellants was contested by the respondents/defendants contending inter alia that the appellants/plaintiffs were not entitled to encroach on the land belonging to the State specially when the same was not allotted to the appellants. It was contended that the house constructed by the appellants on the land so purchased by them, was not being disturbed. Only the part of it which was constructed on the land belonging to the State just five years back was being demolished and that being so, the claim made by the appellants was wholly misconceived. The plea of perfection of title by virtue of adverse possession was also denied.
The trial Court framed the issues, recorded the evidence and reached to the conclusion that the appellants have failed to prove their claim. Appreciating the evidence available on record, the trial Court dismissed the suit. In appeal, the lower appellate Court after re-appreciating the evidence and marshalling the same again reached to the conclusion that findings recorded by the trial Court were not perverse and affirmed the judgment and decree. Hence, this appeal.
It is, vehemently, contended by learned counsel for the appellants that the evidence recorded by the trial Court was not properly appreciated, inasmuch as, in the statement of witness examined by the defendants, DW/2 it is categorically deposed that the proceedings were not rightly done inasmuch as no field map was prepared, nor the same was produced along with the report before the authorities. It is contended that in view of this admission made by the defendants' witnesses, it was clear that proceedings were not rightly done in the matter of eviction of the appellants treating them as encroacher and, therefore, such findings recorded by the Courts below are perverse. It is also contended that the fact that the appellants were in possession of the suit property for a long time within the knowledge of the respondents/ defendants was also not taken note of. In fact, by virtue of the registered sale deed since the adjoining land was purchased by the appellants, they had right to use the suit land though it was not part of the sale deed.
All such submission of learned counsel for appellants are wholly misconceived. If the claim was made in the plaint that the suit land though was belonging to the State was in continuous possession of the appellants for more than a period of thirty years, specific pleading in that respect was required to be made and then it was to be proved that within the knowledge of the respondents/defendants, the appellants have remained in possession of the land for the aforesaid period of thirty years continuously. In respect of such pleadings, no evidence was produced by the appellants. Only because an adjoining land was purchased, although by virtue of a sale deed it was not to be treated as proved that the appellants were in possession of the Government land as well from the date of purchase of the land under the sale deed within the knowledge of the respondents/defendants. That being so, the findings recorded by the Courts below cannot be said to be perverse. Apart from that the other aspect is that it was to be demonstrated by the appellants themselves being plaintiffs that proceedings were not rightly done by the authorities against them. No such evidence was produced by them. In absence of such evidence if the finding was recorded that the order passed by the concerning authority of respondents was not violative of the law and was not to be declared as null and void, again it cannot be said that such findings are perverse in any manner. In view of the aforesaid, the findings recorded by the Courts below are not perverse nor can it be said that material evidence available on record was not taken note of. No substantial error of law is found in the findings so recorded by the Courts below.
No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.
(K.K.Trivedi) Judge.
A.Praj.