Upendra Singh Tomar vs Ganesha Kushwah and Others

B.D. Rathi, J.—Heard on admission. Having regards to the arguments advanced by learned counsel for the parties, perused the record of the Courts below.

The appellant has preferred this Second Appeal u/s 100 of CPC against the judgment and decree dated 29-07-2013 passed by Tenth Additional District Judge, Gwalior in Civil Appeal No. 43-A/2013 confirming the judgment and decree dated 30-11-2010 passed by Fifth Additional Civil Judge to the Court of First Civil Judge, Class-II, Gwalior in Civil Suit No. 37-A/2009.

The plaintiff filed a suit bearing Civil Suit No. 37-A/2009 before the trial Court for declaration of title and permanent injunction in regard to agricultural land, bearing survey No. 103/1 measuring an area of 0.209 hectare, situated at village Kesharbag, Tahsil and District Gwalior on the ground that this land was given to him on lease in the year 1991 by Fadoliya-defendant No. 1 (since deceased) and since then, he is in possession of the land. The lease was granted in contravention of Section 168 of M.P. Land Revenue Code, 1959 (hereinafter referred to as "the Code''''). Therefore, the appellant-plaintiff has become "Bhoomiswami" of the said land. It was also pleaded that the possession of the plaintiff was recorded by the Tahsildar vide order dated 16-01-2004 in Revenue Case No. 80/2002-03/B-121. The case of the plaintiff was denied by defendant No. 1 Fadoliya S/o. Balram. During pendency of the suit, he died and thereafter his legal heirs were brought on record. They have also denied the averments made by the plaintiff in the plaint.

After taking into consideration the entire evidence and documents available on record, the learned trial Court has held in its impugned judgment and decree that the plaintiff has failed to prove his case that the land in question was given to him on "Patta" by late Fadoliya in the year 1991. The plaintiff has also failed to prove his possession and therefore, he is not entitled to get any relief. Hence, the trial Court dismissed the civil suit filed by the appellant-plaintiff. Against the judgment and decree passed by the trial Court, appellant-plaintiff preferred Civil Appeal No. 43-A/2013 before the 10th Additional District Judge, Gwalior and the learned appellate Court dismissed the appeal of the appellant by affirming the findings given by the trial Court, wherein it was held the plaintiff could not prove his title as "Bhoomiswami" on the disputed land in question. The appeal was also dismissed on the additional ground that the Civil Court has no jurisdiction to try the case of declaration, as suit is barred in view of provision of Section 257(o) of the Code.

As per the evidence of appellant-plaintiff Upendra Singh Tomar (PW1), the land was granted on " Patta" to him by late Fadoliya in the presence of Kaushal Bajpai, Hemant Verma, Nitin Sandhe, Nagendra Kushwah and others. Nagendra Kushwah was examined as PW2. In his evidence, he denied all the facts of the plaint. The case of the plaintiff was not supported by him. In paragraph 6 of the cross-examination, it was admitted by the plaintiff (PW1) himself that at the time of granting the land on "Patta" he was minor, aged about 16 years and in the year 1991, he was studying in Class-XI. It was held by both the Courts below that the minor has no right to make any agreement/contract (in regard to "Patta"). Similarly, after taking into consideration the revenue papers Ex. P-1 to Ex. P-4, it was held by the trial Court that khasra entry made in the year 2002-2003 (Ex. P-1) is not reliable. The only entry in regard to possession of plaintiff was recorded by the Tahsildar vide order dated 16th January, 2004 but that order was passed on the basis of the report of Patwari. The Tahsildar passed the order without affording any opportunity of hearing to the owner of land in question i.e. defendant No. 1 Fadoliya. The plaintiff obtained ex-parte order in his favour after mentioning wrong address of the defendant before the Tahsildar and due to wrong address, notice was not served on him and he could not appear before the Tahsildar.

It is submitted by learned counsel for the appellant that for the sake of argument, if it is presumed that the land in question is in illegal possession of the appellant-plaintiff, then it should be protected. In support of his contentions, learned counsel for the appellant relied on the decision of Hon''ble the Supreme Court in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, and the decision of this Court in the case of State of M.P. and others Vs. Balveer Singh and others, . However, the above citations relied upon by learned counsel for the appellant, are not applicable in the facts and circumstance of the present case. In the considered view of this Court, the plaintiff has totally failed to prove his case to the effect that the land was granted him on "Patta" by late Fadoliya in the year 1991 and also failed to prove that the land in question was in his possession. The concurrent findings of both the Courts below are in accordance with evidence and law. No interference is called for. No substantial question of law is involved in this appeal. The appeal being devoid of merits and is hereby dismissed in limine.