RAMBHAROSE KANDELE Vs. STATE OF MP

JUDGEMENT

(1.) THIS appeal under section 100 of CPC by the plaintiff is directed against the concurring judgment and decree dated 17/10/2011 passed in civil appeal No. 9A/2011 by II Additional District Judge, Dabra, District Gwalior affirming the judgment and decree dated 29/04/2011 passed in civil suit No. 47A/2008 by Civil Judge, Class -II, Dabra, District Gwalior whereby plaintiff's suit for permanent injunction and demolition of boundary wall over the suit land has been dismissed.

(2.) PLAINTIFF filed the suit inter alia contending that the suit land situated in village Ramgarh, Tahsil Dabra, District Gwalior falling in survey No. 581 area 0.190 hectare and survey No. 582 area 0.063 hectare, total 0.253 hectare is of his ownership and possession. In the revenue record, the suit land is duly recorded in the name of Jagannath. Jagannath bequeathed his entire movable and immovable property in favour of plaintiff by 'will' dated 20/05/1957. As such, the plaintiff acquired Bhumiswami rights and in possession over the suit land. Defendants' have no right, title and interest over the suit land, however, in the khasra for Samvat 2026 (1969) without notice to the plaintiff and behind his back changes have been made in column No. 10 and kabristan (burial ground) has been endorsed in respect of suit land whereas there is no kabristan on the spot. Plaintiff complained the aforesaid fact of alleged endorsement of kabristan over the suit land by filing case No. 6/94 -95/A -6 before Tahsildar, Dabra and the same is still pending consideration. During this period, defendants' have raised construction of boundary wall over the area of suit land and tried to install a gate despite resistance by plaintiff. On 20/04/1998, the defendants' have not acceded to the prayer of plaintiff and constructed the boundary wall and, therefore, plaintiff left with no other alternate instituted the instant suit for permanent injunction and further relief of demolition of boundary wall.

(3.) DEFENDANT No. 2/Municipal Council, Dabra also filed written statement and denied the plaint allegations. Inter alia submitting that since beginning in the revenue record, suit land has been recorded as kabristan which is factually used as kabristan. The boundary wall has been raised and installation of gate over the suit land is legal and for protection of kabristan. It is further submitted that ex -zamindar of village Ramgarh was Ganpat Rao. Neither plaintiff nor his predecessor, Gopiram and Jagannath Prasad were having ownership rights over the suit land. Since Samvat 1996 (1939) suit land is recorded as kabristan but Gopiram and Jagannath Prasad manipulated and got recorded name in the revenue record whereas there was no entry showing possession over the suit land that of plaintiff or his predecessor. With the aforesaid pleadings, prayed for dismissal of the suit.