UMKAR SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal by the plaintiff under section 100 CPC is directed against the concurring judgment and decree dated 31/07/2007 passed in civil appeal No. 1A/2007 by District Judge, Vidisha District Vidisha affirming the judgment and decree dated 22/11/2006 passed in civil suit No. 366A/2003 by Civil Judge, Class -II, Kurwai, plaintiff's suit for declaration, permanent injunction and cancellation of patta dated 31/05/2002 has been dismissed.

(2.) FACTS necessary for disposal of this appeal in nutshell are to the effect that plaintiff claimed to be peaceful, continuous and uninterrupted possession over an agricultural land admeasuring 0.596 hectare falling in survey No. 281/341 situated in village Tamoiya, Tahsil Kurwai, District Vidisha (hereinafter referred to as 'the suit land'). Though, admittedly the suit land is a Government land but it is adjacent to the land owned and possessed by the plaintiff. During the long possession of 40 years, plaintiff has never been subjected to any action for disturbing his possession, as such, he acquired title by adverse possession. Hence, entitled to be registered in the revenue record as bhumi swami in respect of the suit land. Having apprehension that the suit land being awarded on patta to other persons, plaintiff filed suit for declaration and permanent injunction initially and later on, during pendency of the suit, since the same was granted on patta in favour of defendant No. 2, prayer was amended for relief of declaration that patta granted on 31/05/2002 in favour of defendant No. 2 be cancelled.

(3.) BASED on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record. It is found that claim for adverse possession over the suit land has not been established by plaintiff to the knowledge of State Government. Suit land is reserved for charnoi land. State Government is mentioned as owner thereof in khasra panchshala for the years 1999 -2000 to 2000 -01, however, in khasra panchshala (exhibit P/4) Samvat 2026 to 2030 (years 1969 -70 to 1972 -03), name of plaintiff's father is mentioned as an encroacher. Though, plaintiff's father was mentioned in exhibit P/4 but in khasra panchshala (exhibit P/5) for the years 1975 -76 to 1978 -79, the plaintiff's name is shown as an encroacher and in khasra panchshala (exhibit P/6) for Samvat 2020 to 2023 (years 1963 to 1966) in respect of suit land, name of one Ghorelal has been mentioned but plaintiff's name has not been mentioned. As such, upon critical evaluation of documentary and oral evidence on record, first appellate Court concluded that the plaintiff has failed to establish his continuous, uninterrupted and peaceful possession over the suit land which is Government land for the last 30 years to claim title thereon under Article 112 of the Limitation Act, 1963. Suit land has been found to be awarded on patta in favour of defendant No. 2 by Tahsildar in case No. 34/A -19/2001002 on 31/05/2002. However, the order dated 29/08/2005 passed by Sub Divisional Officer shows that it is stated that patta granted in favour of defendant No. 2 was cancelled observing that division (bhantan) taken place on 16/04/2001 was not correct and remanded the matter back to the Tahsildar to pass appropriate orders in the matter. The first appellate Court observed that thereafter, nothing has been brought on record in respect of factual aspect as to whether defendant No. 2 was again granted patta or not. Under such circumstances, no evidence has been brought on record as regards grant of patta in favour of defendant No. 2. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court and dismissed the suit.