BANWARI Vs. SURESH SINGH

JUDGEMENT

(1.) THIS second appeal by defendants under Section 100 of CPC is directed against the judgment and decree dated 27th October, 2009 passed by Second Additional District Judge, Morena in Civil Appeal No. 03 -A/2009; confirming the judgment and decree dated 26/2/2009 passed by 2nd Civil Judge, Class -I, Morena in Civil Suit No. 15 -A/2008. Plaintiffs' suit for declaration and permanent injunction has been dismissed.

(2.) LEARNED counsel for the appellant submitted that following substantial question of law arises in this appeal for consideration: -

(3.) DEFENDANTS No. 1 to 16 have filed written statement denying the plaint allegations as well as execution of alleged sale deeds dated 18/5/1984 and 8/3/1999. It is contended that in fact the suit land is a open pond being used for Nistar purposes by the villagers where cattle of the village also used to drink water. The land use has not been changed by Natthi S/o Hariya or Shanti Devi. At no point of time, they had any title or possession over the suit land. Hence, these two have no right to transfer the same in favour of plaintiffs by execution of the alleged sale deeds. The Mutation as has been done in the revenue records is out of collusion and connivance of plaintiffs with the local revenue employees. It is submitted that in fact the suit land since the time of Zamindari era is a pond being used for cattle's drinking water and Nistar purposes. Manipulation in the revenue record is with the influence of brother of the plaintiffs who was serving as a Patwari in Morena Tahsil. In Samwat 2007 at the time of abolition of Zamindari Act such lands were used for agricultural purposes and thereafter the suit land has all along been continued to be as a pond and no title over the suit land was continued with Zamindar as it was not being used for agricultural purposes, hence, no one had any right to claim Bhoomiswami rights over the suit land as successor or transferee of the Zamindar much less Natthi S/o Hariya or Shanti Devi.