Bheer Singh vs State of M.P.

Rohit Arya, J.—Heard on the question of admission.

This appeal by plaintiffs/appellants u/s 100 of C.P.C. is directed against judgment and decree dated 23/12/2009 passed by Second Additional District Judge, Dabra, District Gwalior in Civil Appeal No. 25-A/2005 partially modifying the judgment and decree of trial Court dated 20/4/2009 passed by Civil Judge, Class-I, Bhitarwar, District Gwalior in civil suit No. 64-A/2005.

Suit was filed in relation to suit land falling in survey No. 1288/1 for declaration and permanent injunction and for declaration of the order passed by Tahsildar dated 30/7/2003 as null and void. It is inter alia contended that out of total area 2.477 hectare of aforesaid survey number, over 6 bigha of land they are in possession for last 40 years. Nayab Tahsildar vide order dated 3/5/1983 had permitted the plaintiffs to plant fruit bearing trees on an area of 0.627 hectare. Plaintiffs and their ancestors have always treated the suit land as their own land and are planting fruit bearing trees over it since long and are in peaceful, continuous and uninterrupted possession of suit land.

Defendant No. 1 by filing written statement inter alia contended that plaintiffs as did not comply with the conditions as stipulated in Section 239 of the M.P. Land Revenue Code, therefore, aforesaid permission has been rejected. It is denied that the plaintiffs have acquired any title over the suit land by virtue of the aforesaid permission or otherwise.

Defendants No. 2 and 3 have also filed written statement inter alia contending that they are in possession of the suit land as the suit land has been allotted to their ancestors on account of being village Kotwar and after his death the suit land has been transferred in their name as service land by respondent/State and prayed for dismissal of the suit.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence and upon critical evaluation of the evidence on record, trial Court vide impugned judgment and decree partially decreed the suit of the plaintiffs to the effect that the plaintiffs shall not be evicted from the suit land without following the due procedure of law as they have been found in possession of the suit land.

On appeal, at the instance of plaintiffs, the first appellate Court again critically examined the entire evidence on record and confirmed the findings arrived at by the trial Court as regards factum of plaintiffs'' being in possession over the suit land. However, first appellate Court modified the decree to the effect that so long as the permission accorded to the plaintiffs on 3/5/1983 for plantation of fruit bearing trees is not cancelled by a competent officer, plaintiffs shall continue to hold rights to do plantation over the suit land and further that plaintiffs shall not be dispossessed from the suit land except in accordance with the process established by law.

At this stage counsel for the appellant submitted that in the decree passed by Courts below, the area mentioned against survey No. 1288/1 is incorrect and instead of area 0.627 hectare the same should be 1.254 hectare as the plaintiffs were accorded permission by Nayab Tahsildar vide order dated 3/5/1983 to do plantation over 6 bighas of land. According to him, 6 bighas of land = 1.254 hectares.

In the opinion of this Court, the plaintiffs are always free to move an appropriate application u/s 152 of CPC before the Court below for correction as sought.

With the aforesaid observation, impugned judgment passed by first appellate court is confirmed and appeal is disposed of.