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Judgment
Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 09/01/09 passed by II ADJ, Mandsaur in Civil Appeal No.28-A/08, whereby judgment dated 29/07/08 passed by II Civil Judge, Class-I, Mandsaur in Civil Suit No.72-A/04, whereby suit filed by the appellants was decreed in part, was maintained, present appeal has been filed.
This appeal was admitted for final hearing on the following substantial question of law:
Whether in the facts and circumstances of the case learned Courts below committed error in dismissing the suit filed by the appellants so far as it relates to decree for declaration?
Short facts of the case are that on 19/04/04 a suit for declaration and permanent injunction was filed by one Ibrahim whose legal representatives are appellants alleging that the land bearing survey No.337 measuring 4.474 hectare situated at village Sonagari, Tehsil & Distt. Mandsaur was given to the deceased Ibrahim on lease vide lease deed dated 07/06/50 by the then Jamidar through his power of attorney. It was alleged that at that time deceased Ibrahim was minor, therefore, the lease was accepted by his father as guardian and also obtained the possession. It was alleged that since then the deceased Ibrahim is in occupation of the land. It was alleged that the deceased Ibrahim is Bhumiswami. It was alleged that the name of the deceased was to be recorded as Bhumiswami in the revenue record, but the Patwari has wrongly recorded the land as Government land. It was prayed that it be declared that the deceased Ibrahim is Bhumiswami and the respondent be restrained not to interfere into the possession. The suit was contested by the respondent on various grounds. It was denied that the deceased Ibrahim is Bhumiswami. It was also denied that the land was ever given to the deceased Ibrahim on lease by the then Jamidar. It was prayed that the suit be dismissed. After framing of issues and recording of evidence learned trial Court found that the deceased Ibrahim and thereafter appellants are in occupation of the land and directed the respondent No.3 not to take the possession forcibly. So far as declaration is concerned, suit filed by the appellants was dismissed, against which an appeal was filed, which was also dismissed, hence this appeal.
Learned counsel for the appellants argued at length and submit that the impugned judgment passed by the learned Courts below whereby decree of declaration is refused is illegal, incorrect and deserves to be set aside. It is submitted that from the documentary evidence and also from the oral evidence it is proved that the land in question was given to the deceased Ibrahim by the then Jamidar on lease. It is submitted that at the same time another adjoining land was given to the father of the deceased Ibrahim on lease by the then Jamidar. It is submitted that the father of the deceased Ibrahim also filed the suit, which ultimately came before this Court in SA. No.354/74 and the same was decided vide judgment dated 03/12/84 in favour of father of deceased Ibrahim. It is submitted that in the facts and circumstances of the case, appeal filed by the appellants be allowed and the impugned judgment passed by the learned Courts below be set aside.
Learned counsel for the respondent submits that no illegality has been committed by the learned Courts below in passing the impugned judgment. It is submitted that the appeal filed by the appellants has no merits and the same be dismissed.
To prove the case appellants have filed the documents Ex.P/1 to Ex.P/15 and has also examined Ibrahim PW/1, Taufik PW/2 and Ismail PW/3. From perusal of the record it is evident that on the date of alleged lease Ibrahim was aged 10 years. Ibrahim has admitted that he has not filed any document to demonstrate that the name of Ibrahim was ever recorded as Bhumiswami. The judgment rendered in SA. No. 354/74 of this Court Court on 03/12/84 which is in favour of Mohammed Khan father of Ibrahim appellant herein has not been filed by the appellants either before Court below or before this Court deliberately. In the facts and circumstances of the case, this Court is of the view that the learned Courts below committed no error in dismissing the suit filed by the appellants so far as it relates to decree for declaration. In view of this, appeal filed by the appellants has no merits and the same stands dismissed.
No order as to costs.