Afjal Mohd. Khan (since deceased) through his L.Rs. vs State of M.P.

S.K. Pande, J.

Being aggrieved by the judgment-decree dated 8.1.1990, passed by First ADJ, Raisen in C.A. No. 51-A/86 reversing the judgment-decree dated 13.7.1984, passed by Civil judge, Class-2, Silwani in C.S. No. 43-A/82, the Plaintiff/Appellant has preferred this second appeal u/s 100 of C.P.C.

The appeal has been admitted on the following substantial question of law:

Whether the first appellate court was justified in reversing the findings of the trial court that the Appellant has not prescribed title by adverse possession on the forest land under his cultivation, for the last more than thirty years ?

Facts in brief arc suit lands Khasra Nos. 25, 26, 27, 28, 30, 31 area 14.15 acres situated at Rampura Khurd. Silwani is recorded in the name of Defendant/Respondent-State of MP Forest Department. The Plaintiff/ Appellant Afzal Mohd. Khan stated that the suit lands were in possession of his father late Chhannu Khan and on his death he continued in uninterrupted possession In June. 1979. the suit lands were sown by him however, in August. Deputy Ranger of the Forest Department threatened to dispossess him with the direction that the Plaintiff/Appellant must not sow the crops on these lands. Therefore, the Plaintiff/Appellant filed C.S No. 43-A/82 seeking declaration of his title and perpetual injunction restraining the Defendant/Respondent from dispossessing him. The suit was resisted by the Defendant/Respondent on the ground that father of the Plaintiff/Appellant was not in possession and the Plaintiff Appellant himself never remained in possession of the suit lands. The suit lands belong to Defendant/Respondent State of MP and Plaintiff/ Appellant has no right, title to retain its possession. The suit was decreed by the civil judge vide judgment dated 13.7.84, wherein it was held that father of Plaintiff/Appellant late Chhannu Khan remained in possession of the suit lands since the year 1945. On his death, Plaintiff/Appellant continued in uninterrupted possession of the suit lands till August, 1979 when the Defendant/Respondent thereatened to dis-possess him. Being aggrieved by the judgment-decree aforesaid, the Defendant/Respondent preferred C.A. No. 51 -A/86 in the court of First ADJ, Raisen. The appeal was allowed vide judgment dated 8/1/90, recording a finding that Plaintiff/ Appellant and his father late Chhannu Khan remained in possession of the suit lands since 1945. However, the possession was permissive as the land revenue was paid by them to the Defendant/Respondent - State of MP (Forest Department). Therefore, perfection of title by adverse possession being not established the Plaintiff/Appellant was non suited. In this appeal it has been contended that on the basis of possession since 1945 till today, the Plaintiff/Appellant at least was entitled to seek perpetual injunction u/s 38 of the Specific Relief Act. The appellate court erred in dismissing the suit in entirety.

The finding of fact arrived at by the courts below is to the effect that late Chhannu Khan remained in possession of the suit lands since the year 1945 and on his death the Plaintiff/appellani continued in possession without any interruption. PW/1 Afzal Mohd. Khan has referred to the revenue payment receipts Ex. P/2. P/1, P/3, P/4, P/5, P/6, P/7, P/8, P/9, P/10, P/11, P/12, P/13 and P/14 whereby the land revenue was paid continuously by him since 1945 to 1973. No. evidence in rebuttal to this effect has been adduced by the Defendant/Respondent. DW/1 Mohd. Kanwar Khan has stated that the suit lands are recorded in the name of defcndant/Respondent-State of MP (Forest Department). In cross-examination DW/1 Mohd. Kanwar Khan has stated prior to independence during State period Khasra entries in respect of Forest lands were not recorded. Therefore, the statement of DW/1 Mohd. Kanwar Khan is of no importance. Statement of PW/1 Afzal Mohd. Khan has been fully supported by PW/2 Sheikh Rahim, PW/3 Abdul Hakim, PW/4 Nanheveer that father of Plaintiff/Appellant was in possession, of the suit lands and on his death Plaintiff/Appellant continued in possession. Plaintiff/ Appellant of his own remained in possession of the suit lands for the last 30-40 years. PW/5 Rajhuvar, PW/6 Param have stated that the Deputy Ranger of the Forest Department has interrupted in possession of the Plaintiff/Appellant by removing the crops. Therefore, this being the concurrent finding of the fact that Plaintiff/Appellant and his predecessors are in continuous possession of the suit lands since 1945, the Defendant/ Respondent cannot be permitted to interfere in possession otherwise in clue course of law.

Under Section 38(3) of the Specific Relief Act when the Defendant invades or threatens to invade the Plaintiffs right to, or enjoyment of property, the court may grant perpetual injunction. In a suit for possession and injunction when Plaintiffs possession to the property in question has been proved, his possession has to be protected unless he is dispossessed in due course of law. The Plaintiff under such circumstances would be entitled to the relief of permanent injunction even though he had not established his title to the suit property. The appellate court had held that on the basis of payment of land revenue with regard to receipts Ex.P/2, P/1 to P/14, possession of late Channu Khan and Plaintiff/ Appellant should be deemed to be permissive. As such the plea of adverse possession has not been established. However, on the basis of continuous uninterrupted possession, the Defendant/Respondent cannot be permitted to interfere in possession of the Plaintiff/Appellant without taking recourse to law. An injunction to this effect ought to have been granted The suit in entirety must not have been dismissed. The court below accordingly erred in dismissing the suit of Plaintiff/Appellant.

Consequently, the appeal is allowed setting aside the judgment-decree dated 8/1/90 passed by AD J, Raisen C.S. No. 43-A/82 is decreed to the extent that the Defendant shall not dis-possess the Plaintiff/Appellant and interfere in possession of the suit lands otherwise in due course of law. In the circumstances parties to bear their costs throughout. Counsel fee as per rules or certificate (Whichever is less).