Bherulal vs State of MP and Others

Rohit Arya, J.—This appeal by the plaintiff under section 100 CPC is directed against the judgment and decree dated 08/07/2005 passed in civil appeal No. 45A/2005 by District Judge, Sheopur District Sheopur confirming the judgment and decree dated 14/10/1999 passed in civil suit No. 56A/1996 by Civil Judge, Class-I, Sheopurkalan. Plaintiff''s suit for declaration and possession has been dismissed. Trial Court has held that if plaintiff deposits the premium of Rs. 10,000/-, the Gram Panchayat, Karhal shall award patta of the suit land in exercise of powers under section 244 of the Madhya Pradesh Land Revenue Code, 1959 or the Collector shall initiate the proceedings for compounding the offending construction over the suit land; in either eventuality, the plaintiff shall be entitled for recovery of possession. However, the plaintiff has no right to raise any construction over land falling in survey No. 1232. First appeal preferred against the judgment and decree passed by the trial Court was dismissed by the first appellate Court. The defendants'' have also filed cross objection under Order XLI Rule 22 CPC against that part of the decree whereby the parties/authorities were called upon to decide the matter of compounding the offending construction, condonation was allowed. Plaintiff preferred this second appeal against the concurring judgments and decrees to the effect of directing the plaintiff to deposit Rs. 10,000/- as premium for grant of lease by the Gram Panchayat and also the direction to take a decision by the Collector to compound the offending construction raised over the suit land.

Facts necessary for disposal of this appeal and as pleaded in the plaint are to the effect that the suit land falling in survey Nos. 1331/1, 1331/2 and 1331/4 situated in village Karhal, District Morena has been declared as Awadi (residential) by the Collector vide order dated 12/09/1963. Gram Panchayat as alleged has been authorised to grant the lease of suit land. Vide resolution No. 2 dated 14/5/1961, the Gram Panchayat has allotted Awadi (residential) suit land falling in survey No. 1331 for construction of house and shops whereupon the plaintiff has raised pakka construction. It is alleged that construction has been raised with the permission of Panchayat as per sanctioned map. However, on complaint filed by concerned patwari that plaintiff has encroached upon the land falling in survey No. 1331 and raised construction, a revenue case was registered treating the said land to be padat kadim and an order was passed for dispossession of plaintiff. After prolonged proceedings at different levels, ultimately, by the orders of the Board of Revenue, it was directed that the house constructed thereupon shall not be demolished as the same has been constructed with the permission of the Panchayat in good faith. It was further directed that the Collector shall initiate proceedings for compounding the offending construction. In compliance of the direction of the Board of Revenue, the Collector declined to compound the offending construction as a result the house constructed by plaintiff was taken possession by the police department and the tenant residing therein was ousted. Therefore, the instant suit for declaration, recovery of possession and mesne profits was filed.

Defendants'' /State have filed written statement and denied plaint allegations. It is inter alia contended that the suit land has never been part of survey No. 1331. Instead, the suit land is a part of the land falling in survey Nos. 1315/1 and 1315/2 which was allotted to the police department for construction of the police station and quarters. Plaintiff is an encroacher over the suit land for which he had no right or authority to raise a construction. No valid allotment was made in his favour. The allotment made by the Gram Panchayat was without any authority. With the aforesaid submissions, suit was prayed to be dismissed.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record, trial Court has held that though the plaintiff could not have been leased out the suit land, however, if the plaintiff deposits Rs. 10,000/- as premium then the lease shall be granted by the Gram Panchayat and the Collector shall initiate the proceedings for compounding the offending construction.

First appellate Court while hearing of the appeal filed at the instance of plaintiff and cross objection filed by the defendants''/State has dealt with the evidence on record threadbare. It has been found that the plaintiff claimed to have been allotted the suit land vide resolution No. 2 dated 14/05/1961 passed by the Gram Panchayat but no such resolution was filed and proved before the trial Court. Though the plaintiff has filed resolution of the Gram Panchayat dated 23/05/1963 (exhibit P/2) but the same has not been proved with the original resolution. Besides, it is also found that there was interpolation and overwriting over the alleged year 1963 as 1961 in the aforesaid document brought on record. The plaintiff has not produced any resolution by which it was resolved that in the aforesaid resolution No. 2 dated 14/05/1961, the year shall be read as year 1961 in place of 1963. This has been found to be deliberately not filed to avoid falsity thereto by the plaintiff. This aspect has been well discussed by the first appellate Court in paragraphs 8 and 9 of the impugned judgment. Accordingly, the first appellate Court has concurred with findings of the trial Court that the plaintiff has failed to prove that the suit land was part of survey No. 1331 and the said land was Awadi (residential) at the time of allotment made by Gram Panchayat. Even if the alleged permission claimed to have been given by the Gram Panchayat but perusal of the documents, exhibits P/3, P/4 and P/5, it is evident that there is no permission by the Gram Panchayat as mere such letters issued by Sarpanch cannot be said to be permission of the Gram Panchayat itself. With the aforesaid analysis of the evidence on record, the first appellate Court has held that the plaintiff failed to establish as regards suit land falling in survey No. 1331 as Awadi (residential) for want of evidence and the suit land was not Awadi (residential) in the year 1961 for which allotment could be made by the Gram Panchayat in the year 1961.

First appellate Court has also discussed the order passed by the Board of Revenue dated 27/02/1970. Even in this order, the plaintiff has not been held to be owner of the suit land. However, it was observed that as the plaintiff has constructed a house, the plaintiff may not be dispossessed and the same shall be subject to orders passed by the Collector as regards compounding the offending construction. The Collector vide order dated 07/03/1972 (exhibit P/12) has refused to compound the same. With the aforesaid findings, the first appellate Court has dismissed the suit.

Having perused the impugned judgments and decrees passed by the Courts below and the record of the case, this Court is of the opinion that the first appellate Court was fully justified having dismissed the suit for the reasons that the alleged allotment of suit land by Gram Panchayat was not without any authority and jurisdiction. Agricultural land of the ownership of State government could not have been allotted to the plaintiff by the Gram Panchayat in the purported exercise of power under section 244 of the Madhya Pradesh Land Revenue Code, 1959. In fact, the suit land falling in survey No. 1331 was declared Awadi (residential) by the Collector in the year 1963. Even otherwise, the alleged resolution of the Gram Panchayat (exhibit P/2) filed by the plaintiff was a suspicious document as there was interpolation and overwriting in the words ''year'' wherein it was sought to be changed from 1963 to 1961. The resolution of the Gram Panchayat was not placed on record to justify the alleged permission and the mere so called letters, exhibits P/3, P/4 and P/ 5 issued by the Sarpanch cannot be termed as permission by the Gram Panchayat itself. Even the Collector has not compounded the offending construction and refused the same by order dated 07/03/1972 (exhibit P/12) and there was no challenge to the said order by the plaintiff. Under such circumstances, the plaintiff has no right, title and interest over the suit land. The alleged possession and the construction thereupon over the suit land was without any right. Therefore, the first appellate Court was justified in dismissing the suit. The entire gamut of matter in fact and in effect is in realm of facts. The findings are based on proper appreciation of the evidence on record. No question of law, much less substantial question of law arises warranting interference under section 100 of the Code.

The appeal sans merit and is hereby dismissed.

At this stage, counsel for the appellant submits that the plaintiff/appellant may not be ordered to be dispossessed without due process of law. However, as indicated in the impugned judgment by the Court below, the plaintiff was dispossessed on 07/01/1977 from the suit house. Therefore, the plaintiff had filed a suit for recovery of possession. Under such circumstances, prima facie, the plaintiff/appellant is not in possession. In any case, if the plaintiff/appellant is in possession as he claims, he shall not be dispossessed without due process of law.