Madhya Pradesh High Court
Triyuginarayan Dwivedi vs Narendra Kumar Dwivedi on 3 February, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 S.A.No.920/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF FEBRUARY, 2023
SECOND APPEAL No. 920 of 2015
BETWEEN:-
1. TRIYUGINARAYAN DWIVEDI S/O SHRI
RAJDHAR DWIVEDI, AGED ABOUT 65
YEARS, VILLAGE AND PO. PADRI, TEH.
TYOUNTHER (MADHYA PRADESH)
2. MANOJ KUMAR DWIVEDI S/O
TRIYUGINARAYAN DWIVEDI
OCCUPATION: NONE VILL. AND POST
PADRI, TEH. TYOUNTHER, REWA
(MADHYA PRADESH)
3. ASHEESH KUMAR DWIVEDI S/O
TRIYUGINARAYAN DWIVEDI, AGED
ABOUT 36 YEARS, OCCUPATION: NONE
VILL. AND POST PADRI, TEH. TYOUNTHER,
REWA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIRENDRA SINGH CHOUDHARY- ADVOCATE)
AND
1. NARENDRA KUMAR DWIVEDI S/O SHRI
VIDYAKANT DWIVEDI, AGED ABOUT 31
YEARS, VILLAGE AND PO. PADRI, TEH.
TYOUNTHER (MADHYA PRADESH)
2. PAWAN KUMAR DWIVEDI S/O SHRI
VIDYAKANT DWIVEDI, AGED ABOUT 29
YEARS, OCCUPATION: NONE VILL. AND
POST PADRI, TEH. TYOUNTHER, REWA
(MADHYA PRADESH)
3. THE STATE OF M.P. THR. THE
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 07-Feb-23
12:19:26 PM
2 S.A.No.920/2015
COLLECTOR, REWA COLLECTORATE
DIST. REWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAMSUPAHL CHATURVEDI -ADVOCATE FOR RESPONDENTS NO.1 AND 2.)
(SMT. PAPIYA GHOSH - PANEL LAWYER FOR RESPONDENT NO.3/STATE)
This appeal coming on for admission this day, the court passed
the following:
JUDGMENT
This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 26.06.2015 passed by Additional District Judge, Tyonther, District Rewa in Regular Civil Appeal No.125-A/2014 thereby affirming the judgment and decree dated 30.06.2014 passed by the Additional Civil Judge Class-2 to the Court of 2nd Civil Judge Class-II, Tyonther, District Rewa in Civil Suit No.29-A/2004.
2. The appellant is a defendant who has lost from both the Courts below.
3. The facts necessary for disposal of the present appeal in short, are that the plaintiff filed a suit claiming that he is the owner of 0.04 acre of land forming part of Khasra No.178/4 situated in village Padri, Tehsil Tyonther, District Rewa. The plaintiff has constructed a Kachcha house on a part of the said land and the remaining land is left open for Nistar purpose. The open land was shown red in Schedule-A to the plaint. It was the case of the plaintiff that on 22.07.2010, the defendants without any right and title has started digging foundation. In spite of the objection by the plaintiffs, the defendants continued with Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 3 S.A.No.920/2015 the construction work. Accordingly, the plaintiffs approached the Revenue Court and obtained the stay order. The order of stay was got complied with by the revenue authorities. It is was the claim of the plaintiffs that the defendants have encroached upon the 0.02 acres of land and on 07.04.2013, they have also constructed a house. Since the title of the plaintiffs has been denied, therefore, the suit was filed for declaration of title and permanent injunction as well as for possession.
4. The defendants accepted that the plaintiff is the owner of Khasra No.178/4 area 0.04 acres. It was submitted that the disputed property is a part of Khasra No.161. The defendant is in possession of 0.016 hectares of land forming part of Khasra No.161 for last 25 years and has constructed his house on 0.004 hectares of land forming part of Khasra No.161. The Tahsildar by order dated 22.12.1987 has also imposed a penalty of Rs.25/-, which has been deposited by the defendant No.1. After the house belonging defendant No.1 fell down, the defendant No.1 has constructed a new house. The plaintiff has no right and title over Khasra No.161.
5. Since the dispute was with regard to identity of the boundary, therefore, an application under Order 26 Rule 9 of CPC was filed before the trial Court, which was allowed and local Commissioner was appointed. The local Commissioner submitted its report and gave a finding that the defendants have encroached the land belonging to the plaintiff. An objection was filed by the appellant to the demarcation report and the trial Court by order dated 16.01.2014 directed that instead of deciding objection it would be appropriate to examine the Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 4 S.A.No.920/2015 local Commissioner. Accordingly, Shri Kamal Bhan Singh, Revenue Inspector was examined as Court Witness No.1.
6. After framing issues and recording evidence, the trial Court came to a conclusion that the appellant has encroached the land. The trial Court also came to a conclusion that although the defendant has admitted the title of plaintiff over the land in dispute but still the plaintiffs have failed to prove that they are the owner of the said land i.e. 178/4 but also came to a conclusion that the plaintiffs are in settled possession of the said land and decreed the suit and a decree for possession as well as permanent injunction was passed against the appellant/defendant.
7. Being aggrieved by the order passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the impugned judgment and decree passed by the First Appellate Court.
8. Challenging the judgment and decree passed by the Court below, it is submitted by the counsel for the appellants that the demarcation was not done by actually measuring the land in question. By referring to the evidence of Kamal Bhan Singh (CW-1), it is submitted that Kamal Bhan Singh (CW-1) has admitted that he has not prepared any field book and since there was no direction to demarcate the land therefore, no field book was prepared. The direction was only to verify the encroachment and accordingly the report was submitted on the basis of the Najri Naksha made available by the Patwari.
9. It is further submitted by the counsel for the appellant that where there is a dispute with regard to identification of boundaries, therefore, the demarcation is the only solution as held by the Supreme Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 5 S.A.No.920/2015 Court in the case of Haryana Waqf Board v. Shanti Sarup, reported in (2008) 8 SCC 671 and a Coordinate Bench of this court in the case of Jaswant v. Deen Dayal, reported in (2011) 2 MPLJ 576.
10. Heard the learned counsel for the appellants.
11. This Court has gone through the Spot Panchnama (Ex.C-3), which reads as under:
"LFky iapukek ge Iakpku xzke iM+jh ;g rLnhd djrs gS fd vkt fnukad 10-1-2014 dks Jheku~~ O;ogkj U;k;k/kh'k oxZ 2 ds vkns'kkuqlkj jk- fu- o``Rr jk;iqj&lksukSjh }kjk xzke iM+jh dh vk-ua- 178@4 jdck 0-04,- dk LFky fujh{k.k fd;k x;kA ekSds ls ukjsUnz dqekj oXkSjg dh rjQ ls firk fo?kkdkar o f=;ksxh ukjk;.k oXkSjg mifLFkr jgsA lHkh dh mifLFkrh esa iVokjh gYdk ds ikl miyC/k uD'kk 'khV ds vuqlkj vk- ua- 178@4 dk tjhc }kjk uki dj ekSds ls vfrdzfer Hkkx dh tkWp dh xbZA ekSds ls mifLFkr nksuksa i{kksa dks tkapdj vfodzfer Hkkx dks crk;k x;kA ekSds ls mifLFkr f=;ksxh ukjk;.k cxSjg }kjk LFky iapukek esa gLrk{kj ugha fd;s x;sA mifLFkr vU; yksxksa ds gLrk{kj djk;s x;sA"
12. It is clear from the Panchanama, that the Araji No.178/4 was measured with the help of Chain (an Orthodox Method of measuring the land). No question was put to Kamal Bhan Singh (CW-1) by the defendants with regard to measurement by Chain.
13. Thus, it is incorrect to say that the Spot Panchnama was prepared without measuring the land. Demarcation of an area and measurement of plot are two different aspects. Once, Araji No.178/4 was measured by the Revenue Inspector with the help of Chain, then it cannot be said that Spot Panchnama Ex.C-3 was based on conjectures and surmises. The defendant himself filed a copy of Map Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 6 S.A.No.920/2015 (Ex. D-3), from which it is clear that Khasra No. 161 is adjoining to Khasra No. 178. It is the case of the defendant himself that a notice under Section 248 of MPLRC was issued and penalty of Rs.25/- was also imposed. Thus, the petitioner himself claims to be an encroacher on Khasra No.161.
14. Be that whatever it may be.
15. Since the demarcation was done after actually measuring the land in dispute therefore, the objection filed by the defendant before the trial Court that the demarcation report was prepared without any measurement was baseless.
16. So far as the judgments relied upon by the counsel for the appellants passed in Haryana Waqf Board (supra) and Jaswant (supra) are concerned, the same are not applicable to the facts and circumstances of the case. In the present case, on an application filed by the defendant, a local Commissioner was appointed and after receiving the report and considering the objection by the parties, the report of local Commissioner has been accepted.
17. No other argument is advanced by the counsel for the appellant.
18. It is well established principle of law that this Court in exercise of power under Section 100 of CPC cannot interfere with the findings of facts. The Supreme Court in the case of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 has held as under:
"35. It is worth noting that this Court in Kulwant Kaur v. Gurdial Singh Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 7 S.A.No.920/2015 Mann [(2001) 4 SCC 262 : AIR 2001 SC 1273] has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within the ambit of substantial question of law. Similar view has been stated in Govindaraju v. Mariamman [(2005) 2 SCC 500] .
36. In Major Singh v. Rattan Singh [(1997) 3 SCC 546 : AIR 1997 SC 1906] it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
37. In Vidhyadhar v. Manikrao [(1999) 3 SCC 573] it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM 8 S.A.No.920/2015 of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board [(2007) 14 SCC 138 : AIR 2008 SC 956] ."
19. As no perversity in the concurrent findings of facts could be pointed out by the counsel for the appellant. Accordingly, no substantial question of law arises in the present case.
20. Ex-consequenti, the judgment and decree dated 26.06.2015 passed by Additional Judge, Tyonther, District Rewa in Regular Civil Appeal No.125-A/2014 as well as the judgment and decree dated 30.06.2014 passed by the Additional Civil Judge Class-2 to the Court of 2nd Civil Judge Class-II, Tyonther, District Rewa in Civil Suit No.29-A/2004 are hereby affirmed.
21. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE vinay* Signature Not Verified Signed by: VINAY KUMAR BURMAN Signing time: 07-Feb-23 12:19:26 PM