STATE OF M P Vs. ISMAIL KHAN

JUDGEMENT

(1.) THE appellant has preferred this appeal under section 100 of CPC being aggrieved by the judgment and decree dated 6.3.1991, passed by I Additional District Judge, Panna, in Regular Civil Appeal No. 29-A/1987 reversing the judgment and decree dated 26.8.1987 passed by Civil Judge Class II, Panna, in Civil Original Suit No. 18-A/1984-85 regarding dismissal of respondent's suit.

(2.) THE respondent-plaintiff has filed a suit against the appellant for declaration and perpetual injunction in respect of a plot measuring 25 x 15 = 375 sq.ft. on which his residential house is situated. The said plot is a part of land bearing survey No. 669/1366 of village Amanganj. It is further pleaded that the appellant remained in possession of it since 1950-51 and acquired Bhumiswami right. It is also contended that a proceeding under section 248 of the M.P. Land Revenue Code was initiated by the Tahsildar, Panna, as Revenue Case No. 52-A/68-80-81 in which by order dated 17.12.1981 the respondent was held as encroacher by imposing fine in the sum of Rs. 50/- and a direction to remove the encroachment was also passed. On appeal by an order dated 19.4.1982 in Revenue Appeal No. 36-A/68-80-81, the case was remitted back to the Tahsildar by setting aside the aforesaid order. Meanwhile, possession of the respondent was held by the SDM in proceedings under section 145 of the CrPC but in aforesaid revenue case by order dated 23.8.1982 the Tahsildar has held the possession of the respondent as an encroacher on the Government land and by imposing the fine of Rs. 50/- said encroachment was also directed to be removed, then respondent filed the suit for declaration and injunction with a plea of adverse possession.

(3.) AFTER framing the issues, the evidence was recorded and on its appreciation no adverse possession of the respondent was found on the aforesaid land. Consequently the suit was dismissed by the trial Court. On appeal by the respondent, on reappreciation of the evidence by considering the provision of M.P. Gramo Ke Dakhalrahit Bhoomi (Vishesh Upbandh) Adhiniyam, 1970 (for short "the Adhiniyam"), the decree of the trial Court was set aside and the suit was decreed for perpetual injunction by allowing the appeal of the respondent while the relief for declaration was not pressed by him in appeal, hence the appellant has come to this Court for setting aside the decree of perpetual injunction granted by the appellate Court in favour of the respondent.