SITARAM Vs. RAM CHARAN

JUDGEMENT

(1.) This is defendant's second appeal who has lost in both the Courts below. The suit instituted by the plaintiff/ respondent No. 1, is for permanent injunction restraining the defendant from interfering with his possesion of the agricultural suit land consisted in Survey Nos. 46/2 and 47/ 1, admeasuring 2 Bighas and 4 Biswas and 1 Bigha and 18 Biswas respectively, situated at village Mahiba, Tahsil Ater, District Bhind. The defendant also claimed mesne profits for the damage caused to his crops. It is not in dispute that the plaintiff and defendant Nos. 1 to 5 were co-owners (Bhumiswamis) of the land situated in Survey Nos. 46 and 47 along with other land. The Tahsildar, under Section 178 of the M. P. Land Revenue Code, 1959, for short, the 'Code', in Case No. 17/ 71-72-27, vide order dated 3-9-1973 (Ex. P/ 1), ordered partition of the land between the co-owners. Suit land comprised in Survey Nos. 46/ 2 and 47/ 1, fell in the share of the plaintiff, while the land comprised in Survey No. 46/ 2 with other land fell in the share of defendant No. 1, Buddhe, father of appellant/ defendant No. 6. The Patwari gave a report of partition on 24-4-1978 (Ex. P/2) which was paratitioned at the spot on 18-8-1977 after dividing the land as dirrected by the order of partition. Defendant No. 6, taking advantage of the land being adjacent to the land of plaintiff, situated at Survey No. 46/ 2, tried to take possession and to cultivate it. Therefore, with the help of the Patwari, a demarcation was made between the two lands by raising a 'medh' (a mud will) on 18-8-1977. The parties, on partition, on their specific areas land khasra numbers were entered in the record of rights, i.e., the Records of khasra in respect of their title as bhumiswami and in possession. The plaintiff 10 cultivated the land by sowing the crop of Bajra in Samvat 2034, but the defendant, by encroaching, damaged the crop. A Police report of this was made a criminal case was registered before the A.D. M., at No. 339 of 1978.

(2.) Thereafter, on 7-11-1978, the plaintiff instituted the suit for permanent injunction and mesne profits. The defendants denied the claim of the plaintiff. Defendant No. 6, i.e. the appellant, came with the defence that on 4-7-1976, the plaintiff gave the land on lease and he is sub-tenant since then on payment of Rs. 4/- per year as land revenue. The lease so granted was for a period of eight years. To support his defence, he produced a copy of khasra entry for the year 1978-79 (Samvat 2025), issued by the Patwari (Ex. D/ 1) wherein, in Col. 2, after plaintiff's name, Sitaram is entered as permanent sub-tenant. Ex. D/2 is the copy of Khasra Panchsala wherein the entry for the year 1979-80 is shown as in Ex. D/1.

(3.) The trial Court disbelieved the defence and also discarded Ex. D/ I and D/2 as the documents were not duly proved by examining the Patwari. The trial Court found that the defendants have admitted the possession of the plaintiff over the land of Survey No. 47/ 1, but they deny the possession of the plaintiff over Survey No. 46/2. Therefore the dispute only remained with respect to land comprised in Survey No. 46/ 2. The trial Court held that the plaintiff as co-owner was in possession and after partition, he is in possession as sole-owner over the suit land of the two Survey numbers and thus decreed the suit for permanent injunction, but did not grant damages as mesne profits. Defendants No. 6, aggrieved of the judgment and decree, preferred an appeal.