Ramsajeevan vs. Bhaiyalal

The High Court Of Madhya Pradesh

SA-1737-2018

(RAMSAJEEVAN Vs BHAIYALAL)

Jabalpur, Dated : 09-07-2019

Mr. Atul Anand Awasthy, Advocate for the appellants.

Heard on the question of admission.

Appellants had challenged the judgment and decree dated 14.05.2018 passed in Civil Appeal No.53A/2012 by III Additional District Judge, Rewa whereby the judgment and decree dated 14.05.2018 passed in Civil Suit No.61/2011 by VII Civil Judge Class-2, Rewa has been affirmed.

Appellants were plaintiffs before the trial Court and they had filed a suit for declaration and injunction and also prayed that judgment and decree passed in Civil Suit No.55-A/2000 passed on 17.01.2002 may be set aside as same was passed by playing fraud and appellants were not party in the said civil suit.

The contention of the appellants is that they are owners of Khasra No.1865 area 1.17 acres and Khasra No.1866 area 0.36 acre total area 1.53 acres situate in village Amilki, Tahsil Huzur, District Rewa. It was averred by the appellants before the trial Court and appellate Court that they were in possession of the suit property as agriculturist since 1958-59 and, therefore, as per Section 158 of the M.P. Land Revenue Code, they became Bhumiswami of the lands. It was further submitted by the appellants that Ramnivas has given statement before the revenue Court that the property in dispute may be given to the appellants.

In view of the aforesaid submission, it was submitted by the appellants that trial Court as well as appellate Court had committed an error of law in non-suiting them.

After going through the judgment and decree passed by the trial Court as well as appellate Court, that earlier suit was filed by defendant No.10 namely Ramnivas S/o Visheshar in respect of same suit property. The said suit has been decreed in his favour and judgment and decree was further challenged up to High Court but the appeals were not entertained and judgment and decree passed in the civil suit were confirmed. It was stated by the appellants in the averments and also in deposition that respondent No.14 to 18 who had been unsuccessful in the civil suit had filed the Civil Suit No.61-A/2011, through their brother Ramsajeevan and the father of defendant No.18 namely Ramprasad, by filing a fresh suit in the name of different persons to avoid the bar of res judicata in the present suit.

Learned trial Court as well as appellate Court had given concurrent finding of fact that in the revenue records Khasra Panchshala i.e. from 1956 to 1961 the name of Visheshar S/o Bhagirath as owners and Kalu Lohar and Ramdhani as agriculturists were mentioned in the said land. The owner Visheshar is father of defendant No.10 Ramnivas. The names of appellants are not reflected in the Khasra of year 1956 to 1961 or of their forefathers. Therefore, no substantial question of law arises that plaintiffs/appellants were in possession of the suit land from 1958, therefore, as per Section 158 of M.P. Land Revenue Code, they have been vested with the rights of Bhumiswami and the trial Court as well as appellate Court have committed error in dismissing their suit.

The second substantial question which was proposed by the appellants is that defendant No.10 has given statement before the revenue Court in favour of plaintiffs and had relinquished his rights. The same is binding on him and he is estopped from claiming the disputed land in question. No statement is pointed out from records nor any statement was found in record. The fact stated above is recorded in Ex.P-6 which will not create any estoppel on defendant No.10. Appellants have not produced any relinquishment deed

which was registered in favour of the appellants. In absence of any registered relinquishment deed, it cannot be said that defendant No.10 has relinquished his rights. There is no force in the second substantial question proposed by the appellants. 3 SA-1737-2018

In view of the aforesaid facts and circumstances of the case and in view of the concurrent findings of two courts below. The second appeal filed by the appellants is dismissed.

VISHAL DHAGAT) JUDGE

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