MOTIRAM Vs. PANNALAL

JUDGEMENT

(1.) THE appellants/defendants have filed this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 17.8.1995 rendered by Xlth Additional Judge to the Court of District Judge, Indore in Civil Regular Appeal No. 18/91 confirming the judgment and decree passed by Vlth Civil Judge, Class - II, Indore on 16.7.1991 in C.O.S. No. 195-A/78.

(2.) THE brief facts for the purpose of deciding the controversy between the parties in this case are that the Respondents/plaintiffs who are legal heirs of one Moolchand filed a suit for declaration and injunction against the appellants/defendants in respect of 3 acres" of land out of Survey No. 501 and 1.28 acres out of Survey No. 502 situated at village Asrawad Khurd, Tehsil & District Indore. Admittedly the aforesaid survey numbers stand in the name of defendants/appellants in the Revenue Records but in Column No. 12 of possession, the names of plaintiffs are mentioned. The plaintiff's case was that he is in possession over the land in dispute and their names are recorded in the Revenue Records and they are doing cultivation and at the relevant time they had sowed crop of Jwar in the land. The Respondents/plaintiffs further submitted that Smt. Pannabai, defendant No. 1 and one Mukund were litigation in civil Court in C.O.S. No. 48/51 in which the plaintiff 's father Moolchand helped Smt. Pannabai and due to his help compromise was arrived between the parties, thus by way of remuneration. Smt. Pannabai orally gifted the suit land to Shri Moolchand who was the father of the plaintiffs. It was further stated that since 1951 plaintiffs remained in possession over the suit land and thus their possession is adverse and they became the Bhumiswami and owners of the property. It was further submitted that the appellants/defendants had filed a suit against the plaintiffs bearing Civil Original Suit No. 194-A/75 for possession which was dismissed in default on 14.12.1977. Consequently all the rights of the defendants stood extinguished in the said land. Since the appellants/defendants wanted to take forcible possession on 15.6.1978, the plaintiffs were forced to file the present suit. The present appellants/defendants controverting the aforesaid facts pleaded that the suit lands are not in possession of the defendants. The fact of adverse possession was also denied.

(3.) THE first appellate Court confirming the judgment and decree granted by the trial Court rejected the appeal of the appellants/defendants. The first appellate Court after appreciating the documentary as well as oral evidence on record, recorded a positive finding that the Respondents/plaintiffs are in possession over the suit land from 1951 as a owner and they are also cultivating over the land. The first appellate Court also found that in Ex. P-5, which is a certified copy of the Khasra entries from 1969 to 1973-74, and Ex. P-6, which is also a certified copy of the Khasra entries from 1974-75 to 1977-78, in which in the Column No. 12 of possession, the possession of respondents/plaintiffs has been recorded. The first appellate Court also found that in rebuttal of those khasra entries the appellants/defendants have not produced any material evidence. It was further found that Ex. D-2, which is a copy of the Panchnama prepared by the Revenue Inspector regarding the possession of the appellants/defendants, was not recorded. Therefore, it was found that the said Ex. D-2 is not a legal document. The first appellate Court also relied on Ex. P-8 which is a copy of the plaint in C.O.S. No. 194-A/75 by which suit for possession was filed by appellants/defendants against plaintiffs and also on Ex. D-1 which is a copy of the order-sheet dated 14.12.1977 by which the aforesaid suit was dismissed. Thus, it was clearly found by the first appellate Court that the appellants were not in possession over the suit lands. The trial Court as well as the first appellate Court both recorded a concurrent finding that the possession of the respondents/plaintiffs over the land in dispute by way of adverse possession has become complete and they are entitled for a decree of declaration and injunction as the suit of the appellants/defendants for possession has already been dismissed. Being aggrieved the appellants/defendants have filed this second appeal against the aforesaid judgments of both the Courts below.