SHAKUN BAI Vs. PRAN SINGH

JUDGEMENT

(1.) THIS appeal by the defendant No. 1 under section 100 CPC is directed against the concurring judgment and decree dated 24/08/2006 passed in civil appeal No. 142A/2005 by II Additional District Judge (Fast Track Court), Vidisha District Vidisha affirming the judgment and decree dated 27/07/2005 passed in civil suit No. 273A/2003 by Civil Judge, Class -II, Kurwai, plaintiff's suit for restoration of possession has been decreed.

(2.) FACTS necessary for disposal of this appeal in a nutshell are that the plaintiff inter alia averred in the plaint that the suit land admeasuring 1.045 hectare jointly falling in survey Nos. 214/3/1 and 214/4/1 situated in village Madaukhedi, Tahsil Kurwai, District Vidisha (hereinafter referred to as 'the suit land') is of his ownership and possession. The aforesaid property is part of an ancestral property which was initially apportioned in the partition effected by Tahsildar between him, his brothers, Gulab Singh, Maharaj Singh and Bundel Singh in revenue case No. 15A3/82 -83 vide order dated 02/05/1983 and since then, he is in possession thereon. His brother, Maharaj Singh vide registered sale deed dated 30/04/1997 has transferred his share to the extent of 1.045 hectare falling in survey Nos. 214/3/2 and 214/4/2 in favour of defendant No. 1. However, since the aforesaid lands are adjacent to each other, defendant No. 1 taking advantage of the same has encroached upon 07 biswa of land on the northern side of the plaintiff's land on or about 10/04/2002 and installed pillars. Despite intervention by the revenue authorities upon registration of case No. 31 -A/12/01 -02 and demarcation of the land by them, defendant No. 1 did not remove the encroachment and illegal possession over the suit land. That lead to filing of the suit for restoration of possession by the plaintiff.

(3.) ON the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court decreed the suit. On appeal, the first appellate court has again reappreciated the oral and documentary evidence on record and concluded to the effect that in fact vide registered sale deed dated 30/04/1997, the defendant No. 1 had purchased the land admeasuring 1.045 hectare falling in survey Nos. 214/3/2 and 214/4/2 from Maharaj Singh and, therefore, possession of defendant No. 1 over the land in excess thereto, i.e., 07 biswa was found to be an encroachment, as there is no documentary evidence to establish assertion of defendant No. 1 as regards legal possession over the suit land and on the contrary, plaintiff produced khasra panchshala (exhibit P/4) wherein the suit land is recorded in the name of Pran Singh (plaintiff) duly supported by evidence of Maharaj Singh (P.W.2), Ramswaroop (P.W.3) and Narayan Singh (P.W.4).