Sukhdai And Ors vs Lakhmi And Ors

Prashant Kumar Mishra, J

The petitioners would call in question the legality and validity of the order passed by the Board of Revenue, Circuit Court, Jagdalpur dismissing their revision application which, in turn, was preferred against the order passed by the Commissioner, Bastar Division, Jagdalpur on 7.10.1996 and that of the Sub-Divisional Officer (Revenue) Jagdalpur, Tehsildar, Lohandiguda on 25.02.1994 and 18.08.1992 respectively.

By the said orders of the Revenue Courts it has been directed that names of the respondents be recorded in the revenue records.

Admittedly, the petitioners' ancestor Maituram filed civil suit bearing No.93-A of 1977 decided by Second Civil Judge Class-II, Jagdalpur on 22.12.1979, seeking recovery of possession of the subject land admeasuring 2 acres out of lands bearing Khasra No.28/1 area 4.34 acres. The Trial Court dismissed the suit against which Maituram preferred Civil Appeal No. 5-A/1980 which came to be dismissed by the District Judge Bastar at Jagdalpur on 01.7.1980, inter alia, holding thus in paras 28 to 31 and 38 :

(28) Samund Singh (PW5) has clearly admitted that :

यह सही है कि जगतूराम कहता है कि मैं 15 साल में जमीन का कब्जा है तबसे कमाता हॅूं। मै इसकी खरीदा हूं। मैं इसका कब्जा नही छोडूगां।

Thus there is clear clinching evidence on record to say that the defendant alone is in possession of Kh.no. 28/1, 96, and total area 4.34 acres since October 1968.

(29) The defendant has pleaded that he had orally agreed to purchase the suit land from Sukhwati in the year 1965. The lower court has given the benefit of Section 53-A of Transfer of Property Act to the defendant but Section 53-A of Transfer of Property Act does not apply to oral agreement. The lower court has committed serious mistake allowing the benefit of Section 53 of Transfer of Property Act to the defendant. That finding has to be ignored.

(30) The evidence on record clearly goes to show that the defendant is in the possession of the suit land since October 1968. The plaintiff has not obtained the suit land in the month of May 1977. The defendant had not taken unauthorised possession of the suit land in the month on 27.05.77.

(31) The plaintiff has to succeed on the strength of his own case. He cannot take advantage of the weakness of the defendant's case. The plaintiff has to prove that he has better claim and right title over the suit land. The plaintiff is a rank trespasser.

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(38) There is another ground on which the plaintiff's suit must fail. The plaintiff has claimed possession of 2 acres of Kh.no. 28/1 as described in schedule B attached with the plaint. The disputed land has not been demarcated or specified, it can not be ascertained or located. Unless the area is demarcated and specified no decree for possession can be passed against the defendant. This is another serious infirmity in the plaintiff's case. The decree will be inexecutable on the basis of the area as described in schedule B attached with the plaint.

Once the other party has been found to be in possession of the suit land since 1968 and Maituram has been held to be a rank trespasser, there is no semblance of any right, title or interest in favour of petitioners. Therefore, he cannot assail the order of mutation passed in respondents' favour.

The writ petition sans substance deserves to be and is here by dismissed at the motion stage itself.