13/02/2017

Shri Ajay Bhargava, Advocate for appellants.

Shri A.K. Nirankari, Advocate for the respondents no.1 to 5.

This appeal by defendants is directed against the confirming judgment and decree dated 7/8/2012 in civil appeal No.39A/2011. Plaintiffs' suit for declaration, recovery of possession and mesne profit has been decreed.

Facts relevant and necessary for disposal of the appeal are that undisputedly land admeasuring 4 bigha 18 biswa falling in survey No.183/4Ka in village Nandapura, Revenue Circle Manpur, Tehsil Sheopur, District Sheopur is of the ownership and possession of the plaintiffs. Out of which, 4 bigha of land was transferred in favour of defendant no.2 son of defendant no.1 by way of registered sale deed dated 11/10/2002. As such, Plaintiffs held the title and remained in possession of remaining land of 18 biswa. Upon Batan, land admeasuring 4 acres falling in survey No.183/4Ka Min-2 was of defendants no.1 and 2 and land admeasuring 0.188 hectare falling in survey No.183/4Ka Min-1 was of plaintiffs. Plaintiffs had filed an application for demarcation before the Tehsildar and a revenue case No.15/06-07/A-12 was registered. On 2/7/2007 demarcation was carried out and field book was prepared. Remaining land of 18 biswa was marked at the site and demarcated as A,B,C,D, however, defendants taking advantage of the old age of plaintiffs and living away from the suit property, uprooted the identification points and have taken forcible possession. Plaintiffs had also filed an FIR in the police

station Sheopur on 10/7/2007 with the complaint of unauthorized possession. As such, plaintiffs have claimed declaration, recovery of possession and mesne profit at the rate of Rs.3,000/- per year against defendants.

Defendants filed written statement and denied plaint allegations. It is denied that defendants have taken unauthorized possession of remaining land of 18 biswa, however, defendants admitted that the total land of the plaintiffs' ownership and possession was 4 bigha 18 biswa, out of which, 4 bigha of land has been transferred to defendant no.2. It is denied that demarcation was carried. It is denied that identification points were removed by the defendants.

On aforesaid pleadings, trial court framed issues and allowed parties to lead evidence. Trial Court framed the following issues:-

Upon critical evaluation of evidence on record, the trial court concluded that the entire land was of 4 bigha 18 biswa, out of which 4 bigha was transferred to defendant no.2 by registered sale deed dated 11/10/2002 and the remaining land of 18 biswa remained to be of the ownership and possession of defendants. As regards issue no.2, the trial

court in para 7, 8 and 9 has discussed oral and documentary evidence placed on record. It has been observed that defendant no.2 in para 7 of his evidence has admitted about the demarcation of the land. Likewise, defendant no.1 in para 10 has admitted the fact of demarcation though expressed ignorance whether the same was carried out on 2/7/2007 or not. The trial court has also considered the documentary evidence as regards the mutation vide Ex.P/5, demarcation letter to Naib Tehsildar Ex.P/6, demarcation report Ex.P/7, Panchnama Ex.P/8, Field book Naksha Ex.P/9, intimation letter Ex.P/10, Receipt Ex.P/11, demarcation application to Collector Ex.P/12 and FIR dated 10/7/2007 and concluded that upon demarcation of the land of survey No.183/4Ka-2 on 2/7/2007, the land admeasuring 18 biswa was properly identified and marked. The same has been taken forcible possession of, for which police help was sought. Hence, it was concluded that plaintiffs are entitled for recovery of possession and likewise mesne profit upon decree in favour of plaintiffs.

The first appellate court, on appeal, has reconsidered the entire evidence placed on record and confirmed the findings of facts so recorded by the trial court. Both the courts below have also discussed the objection as against the maintainability of the suit on the premise that if plaintiffs intended to remove the encroachment, proceedings under Section 250 of the M.P. Land Revenue Code should have been instituted and not a suit. The Courts below have recorded a finding that the suit is not only for possession, but also for declaration and mesne profit and, therefore, the

objection in that behalf has been rejected.

Upon perusal of the judgment and decree passed by the courts below, in the opinion of this Court, both the courts below have properly appreciated the oral and documentary evidence placed on record. Findings, so recorded, are impregnable in nature. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference under Section 100 CPC. The judgments relied upon by learned counsel for the appellants in support of his contentions viz. Unkar v. Kadwa and another, 1997 RN 192, Lal Kunwar and others v. Shivnarain and another, 1998 RN 89 and Balram Kirar thorugh LRs. vs. Ramkrishna and another, 2002 (3) MPLJ 268 are distinguishable on facts and in law looking to the factual matrix of the case in hand and, therefore, are of no assistance to the appellants. Accordingly, the second appeal sans merit. Dismissed.

(Rohit Arya) Judge

Arun*