KESHAV RAO Vs. VINOD KUMAR TIWARI

JUDGEMENT

(1.) Substantial question of law which arises for consideration in this second appeal is as to -

(2.) Relevant facts giving rise to said substantial question of law briefly are that, plaintiff having purchased the suit property bearing Khasra No.22/5 admeasuring 4 acres situated at Village Garra, Patwari Halka No.58 Revenue Circle Tahsil Waraseoni, District Balaghat, vide registered sale deed dated 31.3.1983 from one Rajanbai w/o Jhanaklal brought a suit in the year 1989 for possession, permanent injunction and for compensation on the plea that the defendant had encroached upon plaintiff's 0.14 acre land and has taken recourse to cultivation there over. It was contended, inter alia, that after purchasing the property a demarcation was carried out in August 1983; whereon the suit land was found to be of the part of the land purchased by the plaintiff. However, the same was encroached upon by the defendant led the plaintiff to file subject suit.

(3.) Defendant contested the claim. Written statement was filed; wherein the defendant categorically denied of plaintiff purchasing the suit property vide sale deed dated 31.3.1983 and being placed in possession thereof. It was denied that any agricultural activity was carried on by the plaintiff over the suit property in May 1983. It was also denied that the defendant caused any hindrance in the alleged agricultural activities carried out by the plaintiff. It was also denied that any demarcation was carried out by Naib Tahsildar. The defendant further denied of encroaching 0.14 acre of land, said to be belonging to plaintiff. It was further denied that the plaintiff initiated a proceeding under section 250 of Madhya Pradesh Land Revenue Code forming subject matter of Revenue Case No.1 -A/1970. It was denied that any order was passed on 4.8.1986. The defendant further stated that the land in question is not of the ownership of the plaintiff. It was further denied that the defendant after encroaching upon land of the plaintiff cultivated the same and that, any loss has occasioned to the plaintiff because of alleged encroachment by the defendant By way of additional submission the defendant stated that at no point of time plaintiff got the land demarcated and the defendant is in possession over 2.35 acres of land of Khasra No.21/4 which he purchased from one Keshev Rao Pradhan in the year 1965. It was stated that the land was purchased after due permission by Collector, Balaghat which was granted in the year 1970 and after getting it demarcated the defendant is in possession over the land bearing Khasra No.21/4 admeasuring 2.35 acres. It was urged that since 1965 the defendant is in possession thereof and the portion of land which the plaintiff claimed to be of his is a land which is part of 2.35 acre of Khasra No.21 /24. It was contended that plaintiff had purchased the land out of Khasra No.22 and under the garb thereof has filed the suit claiming possession over the property belonging to the defendant. It was further contended that against the order passed by Tahsildar, Waraseoni on an application under section 25 of the Code, 1959, Defendant filed an appeal before the Sub-Divisional Officer, Waraseoni, who set aside the order passed by Tahsildar. Where against the plaintiff preferred a second appeal which was dismissed by Additional Commissioner, Jabalpur Division, Jabalpur. It was contended that the plaintiff having failed to get any relief from the revenue authorities has filed a suit for possession over the land, which does not belong to him. It was further contended that even prior to the sale of land in question to plaintiff by Rajanbai the defendant has been in possession over the suit property which was part of his land purchased in the year 1965. It was urged that plaintiff without getting the land demarcated got sale deed executed in his favour on 31.3.1931 which ipso facto does not create any right in petitioner over 0.14 acres. It was further contended that the plaintiff be put to strict proof that he has title over the suit property admeasuring 0.14 acres.