SHRIRAM Vs. STATE OF M.P

JUDGEMENT

(1.) Present second appeal has been filed challenging the judgment and decree dated 9th, December 2010 passed by the Second Additional District Judge Guna in First Appeal No. 07- A/2010 whereby the judgement and decree dated 28 th January 2010 passed by the Second Civil Judge, Class- I, Guna has been confirmed.

(2.) The plaintiffs respondent nos. 2 and 3 have filed a civil suit for declaration and recovery of possession as well as mesne profits on the ground that the land bearing survey number 315/ 05, area 2.090 hectares situated in village Khejrababa is of the ownership of Badriprasad husband of plaintiff no. 1 and father of plaintiff no. 2 Vinod Kumar. He has renounced the world in 1970-71 and not been seen for years. Therefore the plaintiffs filed an application for mutation of their name in the revenue record and the application was allowed and the names were mutated as Bhoomi Swami of the land in dispute. It is submitted that the suit land was never recorded as government land (beed) nor any Patta has been granted to the defendant's father and he was in possession since last 25 years. It is further alleged that defendant's father Poorandas taking advantage of his possession as he was the Patel of the village has made forged entry in the revenue records. A civil suit was filed on earlier occasion against the plaintiffs for declaration and injunction before the civil court which was dismissed by the trial court that stood confirmed by the appellate court. It is submitted that the defendant has forcefully encroached upon the land in question on which the plaintiffs have sown soybean crop. Therefore the civil suit was filed for declaration and recovery of possession and for mesne profits. Learned counsel for the appellant has relied upon judgment passed in the case of Smt. Bhimabai Mahadeo Kambekar (D) Th. LR.v. Arthur Import and Export Company and others reported in AIR 2019 SC 719.

(3.) By filing the written statement the defendant has denied the plaintiff's averments and has contended that the suit land was sold by Badriprasad to Poorandas on the basis of the agreement dated 18th, July 1970 and since then he is in possession of the property. It was further contended that the land was allotted by government by way of patta in samvat 2019-20 and it was mentioned in Khatauni in samvasta 20-20 and since then he is in possession of the suit land. It was further submitted that the possession of the land was never taken away from him. Therefore the civil suit itself is time barred, therefore, suit-land vested in the government as mutation does not confer any title. Defendant no. 2 remained ex-parte before the trial court. Learned trial court after appreciation of evidence available on record and after hearing the parties has found that the plaintiffs have proved their own case and the civil suit was decreed vide judgment and decree dated 28 th, January 2010. An appeal was preferred which was registered as Civil Appeal No. 7-A/2010 and the First Appellate Court vide it's judgment dated 09.12. 2010 has dismissed the appeal and the judgment and decree passed by the trial Court was confirmed. Therefore the present Second Appeal has been filed.