BHAGWAT PRASAD DUBEY Vs. GRAM PANCHAYAT KUSMULI

JUDGEMENT

(1.) Appellant has preferred this second appeal against the judgment and decree dtd. 6/2/2014 passed in Civil Appeal No.1-A/2013 by which learned 3rd Additional District Judge, Bilaspur dismissed appeal filed against the judgment and decree dtd. 14/12/2012 passed by learned Civil Judge Class II, Kota, District Bilaspur by which civil suit filed by respondents herein for declaration and permanent injunction.

(2.) Facts relevant for disposal of this appeal are that plaintiff filed civil suit for declaration of title and permanent injunction pleading that the land bearing Khasra No.609 area 1.41 acre situated in village Kusmuli, PH No.10, Tahsil Kota, District Bilaspur (henceforth 'the suit land') is their ancestral land and the same is continuously been recorded in the name of plaintiff's predecessors and as of now plaintiff is in possession, occupation and supervision of the suit land including a pond constructed on it. It was pleaded that said pond is being used by plaintiff and villagers of village. Defendant No.1 published a notice for auction of said pond, to which objection was submitted by plaintiff that he is owner of the pond. Plaintiff has also issued notice under Sec. 80 of CPC to defendant No.1, which has not been replied. Therefore, the necessity has arisen to file civil suit for declaration of title of plaintiff over the said pond and permanent injunction restraining the defendants, their agents, servants and employees from interfering with possession of plaintiff over said pond.

(3.) Defendant No.1 filed written statement to plaint, denying all adverse averments made therein. Defendant No.2 also filed its written statement stating that after death of Nakchhed, plaintiff or his predecessors were never in physical possession of the pond. It was pleaded that as per revenue records of the year 1954-55, the suit land is recorded under the head of 'pond and water' and no where in the records of rights name of plaintiff or his predecessors is recorded as owner or in any other capacity. It was also averred that all tanks situated on unoccupied land on or before the date of coming into force of the Act, providing for the abolition of the rights of intermediaries in the areas concerned and over which members of the village community were, immediately before such date, exercising rights of irrigation or Nistar, shall, if not already vested in the State Government, vest absolutely in the State Government with effect from the 6/4/1959.