Shiv Charan Meena vs Mangilal Meena

J.K. Maheshwari, J.—This appeal is by the plaintiff against the judgment and decree dated 26.02.2004 passed by 1st Additional District Judge, Guna in Regular Civil Appeal No. 5-A/2003 whereby the judgment and decree passed by the trial court has been modified decreeing the counter claim of the defendant filed in Civil Suit No. 149-A/1997.

The plaintiff''s case in brief was that he purchased 0.292 Hectares of land out of the total 1.588 Hectares from predecessor in title of Survey No. 220. It is further said that defendant No. 1 has also purchased 1.254 Hectares of land from the same predecessor out from the same survey number i.e. 220. It is also stated by him that he is in possession of the remaining land of the said survey No. 220. However the suit filed by him may be decreed seeking ownership thereof and the defendant be restrained to not to interfere in his possession.

After service of the summons defendant had filed a written statement and also filed counter claim contending that they have purchased the land vide registered sale deed dated 26.04.1972 (Ex. D-1) to the extent of 1.254 Hectares. The plaintiff is not the owner of the land but he has encroached upon the land purchased by him. However he be declared the owner of the land which he has purchased and the plaintiff be dispossessed on the part of the land delivering possession to him.

Trial court dismissed the suit filed by the plaintiff decreeing the counter claim of the defendant. However on filing an appeal by the plaintiff it was allowed in part issuing direction to the revenue authorities that out of the total land of survey No. 220 area 1.588 after demarcation the land of the area 1.254 Hectares and its possession be delivered to the defendant from plaintiff leaving the remaining portion of the land. However, this appeal has been preferred by the plaintiff.

After hearing learned counsel for the parties and on perusal of the facts of the present case, it is apparent that the defendant has purchased 1.254 Hectares of land from the predecessor. Plaintiff filed a suit for declaration of the title on the land area 0.292 hectares of the same survey number. As the land of plaintiff and defendant both is of the same survey number and of same owner, however the lower appellate court appointed a Commission and a report has been received on 11.03.2001 whereby it is clear that the defendant though purchased the land total area 1.254 Hectares but not in possession of the said land. It has also been found that plaintiff is in possession on the piece of land of defendant contrary to the pleading as made in the suit.

Lower appellate court relying upon the said Commission report which was not objected by other side partly decreed the suit and the counter claim of the defendant directing the revenue authority to deliver the possession of the land to the defendant area 1.254 hectares of Survey No. 220 and the remaining land would continue with the plaintiff. In my considered opinion, the finding recorded by the lower appellate court does not appear to be perverse or illegal.

In the facts and circumstances of the case, in my considered opinion, the finding as recorded by the lower appellate court is in accordance with law doing substantial justice with the parties.

In view of foregoing, no substantial question of law arises for determination in this appeal. Hence, it is dismissed at admission stage.

C.c. As per rules.