Madhya Pradesh High Court
Hargovind vs Mus. Makhani Devi on 14 May, 2019
1 S.A. No.1105/2018 HIGH COURT OF MADHYA PRADESH S.A. No.1105/2018 (Hargovind Vs. Mus.Makhani Devi & Ors.) Gwalior, dated: 14.05.2019 Shri Santosh Agrawal, learned counsel for the appellant. This Second Appeal has been filed by the plaintiff under Section 100 of Civil Procedure Code being aggrieved of judgment and decree dated 25.01.2018 passed by the Court of V Additional District Judge, Bhind in Civil Appeal No.122/2016 conforming judgment and decree passed by the Court of IV Civil Judge, Class II, Bhind in Civil Suit No.174A/2014 dated 29.10.2015.
2. Brief facts leading to the present Second Appeal are that plaintiff/appellant had filed a suit in regard to land contained in Survey No.449 measuring 0.115, Survey No.462 measuring 2 Bigha 15 Biswa and land contained in Survey Nos.483, 484, 485, 487 measuring 3 Bigha 5 Biswa seeking declaration of ownership, permanent injunction and correction in the revenue records.
3. It is submitted by learned counsel for the appellant that the land in question belongs to one Pandit Pandmakar Ojha, who was a Zamindar and father of the appellant namely Shri Ramnath was a Mourushi Krishak and his name was recorded in Khasra for Samvat 2007. After abolition of Zamindari and coming into force of M.P. Land Revenue Code, 1959 (hereinafter shall be referred to as the MPLRC) name of his father Ramnath was recorded in Revenue 2 S.A. No.1105/2018 records and after death of his father, plaintiff is owner and possessor of such agricultural land. It is also submitted that after Bandobast, new Survey numbers were given namely; 379, 564 and 570. Out of total land, land contained in Survey No.449 measuring 0.115 Bigha and in Survey No.462 measuring 2 Bigha 9 Biswa was vested in Railways and only 0.06 Biswa land was left. It is mentioned that his father Ramnath was owner and possessor of land contained in new Survey No.570 and after his death plaintiff and defendant No.6 are performing agricultural operations being owner and possessor of such land. It is submitted that land contained in Survey No.564 is 0.06 Biswa and one contained in Survey No.570 is 0.68 Biswa.
4. It is an admitted position that in Survey numbers showing entries between Samvat 2010 to 2014 and Samvat 2015 to 2019, name of father of the plaintiff namely, Ramnath is mentioned as Bhumisami but in Column No.12 name of Juggi Singh and Chote Singh has been recorded unauthorisedly. It is submitted that after death of Juggi Singh and thereafter of Chote Singh names of defendant No.1 and 2 have been recorded though they have no title in their favour.
5. In regard to such contentions appellant's counsel has drawn attention of this Court to Ex.P/1 in which name of Ramnath has been shown in column No.5, whereas that of Shri Padmakar Ojha as Muafidar in column No.3. This is Khasra for Samvat 1950-1951 to 3 S.A. No.1105/2018 Samvat 2007. Thereafter, attention has been drawn to Ex.P/2 where name of Ramnath as Pakka Krishak has been shown in column No.4 and that of Juggi Singh and Chote Singh in Column No.12. This is the position in regard to survey for Samvat 2010 to 2014. Same is the position for the Survey showing entries for Samvat 2015 to 2019, however, in Survey for Samvat 2018 to 2021 name of Juggi Singh and Chote Singh has been mentioned in Column No.4.
6. When learned counsel for the appellant/plaintiff is asked as to what action has been taken by them when name of Juggi Singh and Chote Singh was recorded in Column No.4 showing survey entries for the Samvat 2018-2021, he submits that suit has been deemed to be within limitation and cause of action had arisen only when plaintiff was threatened of dispossession in the year 2012.
7. When learned counsel for the appellant is asked as to when there is an admission by their own witnesses that they are not in possession of the suit land, why relief for possession is not sought, he has no answer to such query.
8. Learned counsel for the appellant has placed reliance on Section 158 of MPLRC, wherein Bhumiswami has been defined and more specifically to provisions contained in Sub Section (1) Clause(b) and thereafter, he has drawn attention of this Court to the provisions contained in Madhya Bharat Land Revenue and Tenancy Act, where Pakka tenant has been defined under Clause-7 of Section 4 S.A. No.1105/2018 54 (1). Reliance has been placed on the provisions contained in Madhya Bharat Zamindary Abolition Act specifically to Section 38, which deals with conferral of pakka tenancy right on tenant and sub- tenants.
9. Learned trial Court has recorded a finding that documents on the basis of which Khasra entries Ex.P/3 was made, was challenged by the plaintiff/appellant before the higher authorities in appeal and such appeal has been dismissed by the Court of SDO Bhind, vide order dated 25.02.2015 and no further proceedings have been under taken by the plaintiff/appellant. It has also come on record in the Khasra Khatoni for the year 2014-15 name of defendants No.1 and 2 has been mentioned as Bhumi Swami against survey No. 570.
10. It has also come on record that plaintiff's witness Hargovind (P.W.1) in his cross-examination has admitted that there exists a plot of Brijendra Singh on the disputed land and this plot has a boundary wall constructed around it. Similarly, Mahipal (P.W.2) in para 5 of cross-examination has admitted that defendants are in possession of the suit land since coming into force of M.P. Land Revenue Code. It has also come on record that plaintiff cannot take advantage of weakness of defendant's case. This finding has been confirmed by the First Appellate Court. It has also come on record that appellant/plaintiff did not produce any documents to show as to which of the earlier survey numbers were changed into which survey 5 S.A. No.1105/2018 numbers. It has also come on record that name of Juggi Singh and Chote Singh is mentioned as Pakka Krishak in Misal Kramank 1/54 in place of Ramnath as Pakka Krishak and thereafter in Ex.P/5 names of defendants Makhani, Lakhan and Brijendra Singh have been recorded but no evidence has been produced to show title or ownership of plaintiff's father Ramnath on the suit property. In para 17, a finding has been recorded by the trial court that plaintiff could not produce from oral or documentary evidence that he is in possession of the suit property and accordingly after detailed analysis of the evidence suit has been dismissed. This finding has been confirmed by the First Appellate Court. Law laid down in the case of Kasturchand and another Vs. Harbilas and others as reported in AIR 2000 SC 3037 is distinguishable, inasmuch as there the issue was that if a proprietor claims himself to be in continuous possession, then possession of such proprietor should be recorded in Khasra for period earlier to date of vesting, which is October 2, 1951 which falls in Samvat year 2008.
11. In the present case, such requirement is not evident and also there is no explanation as to when name of the defendants Juggi and Chote Singh was record as Pakka Krishak in column No. 4 in the Samvat 2018-2021 then what prevented the plaintiff to seek their dispossession and claim relief of declaration. Even in the present suit no relief has been sough in regard to possession though admittedly 6 S.A. No.1105/2018 there is evidence to the effect that defendants are in possession of the suit property therefore, concurrent findings arrived at by the learned trial Court and the First Appellate Court does not call for any interference and therefore, Second Appeal does not give rise to any substantial question of law, therefore this Court declines to admit such second appeal as it does not give rise to any substantial question of law and all the issues in regard to facts have been decided against the plaintiff's by the trial court and have been confirmed by the First Appellate Court. Appeal fails and is dismissed.
(Vivek Agarwal)
shanu Judge
SHANU
RAIKWAR
2019.05.23
10:51:37 -07'00'