Full Judgment
S.A.No.462/2012 24.09.2012 Shri Pranay Verma and Shri K.S.Jha, Advocates for the appellant.
Shri Rahul Jain, Govt.
Advocate for the respondents No.1 to 3.
Heard.
This appeal under section 100 of the Code of Civil Procedure has been filed by the plaintiff being aggrieved by the judgment and decree dated 23.12.2011 passed by 1st Additional District Judge, Tikamgarh in Regular Civil Appeal No.9-A/2011, affirming the judgment and decree dated 7.12.2010 passed by Civil Judge, Class-I, Niwadi, district Tikamgarh in C.S.No.172-A/2006.
The suit was filed with respect to KhaSr.No.4245, area 5.360 hectares, out of which land measuring 0.400 hectare is in dispute.
It is stated that after constructing boundary wall the plaintiff is using the said land for agricultural purposes.
It is said that the government granted a Patta in favour of the plaintiff in respect of the land of KhaSr.Nos.4242, 4243 and 4244 of the said village adjacent to the disputed land.
In the said Patta it was specified that the plaintiff may acquire the additional land for agricultural purposes, however, in lieu thereof he is in possession of the disputed land and a certificate to that effect has been issued by the Chairman, Municipal Council, Prithvipur having possession thereof.
In such circumstances it is urged that the finding so recorded disbelieving the plea of adveRs.possession is unsustainable in law particularly notice for dispossession from the said land has been issued by the competent authority.
Thus it is urge that since the plaintiff is having possession since 60 yeaRs.setting aside the judgment and decree passed by both the Courts below, suit filed by the plaintiff may be decreed.
Per contra, Shri Rahul Jain, Govt.
Advocate contends that both the Courts below have recorded a finding that the plaintiff is having no right to get the decree of the suit land on the plea of adveRs.possession.
More so, he is not in possession of the suit land and the proceeding under section 248 of the M.P.Land Revenue Code has already been initiated.
In such circumstances, the two Courts below have rightly dismissed the suit filed by the plaintiff.
After having heard learned counsel appearing on behalf of the parties and on perusal of the record it reveals that on the disputed land entry of possession in the revenue record has not been established continuously and peacefully against the real owner i.e.State Government.
Document i.e.certificate of Municipal Council, Prithivipur is not sufficient to prove possession of the appellant continuously.
But simultaneously it cannot be lost sight that the notice for dispossession treating the plaintiff as an encroacher has been issued.
Considering the aforesaid, in the considered opinion of this Court, finding of dismissal of the suit disbelieving the plea taken by the plaintiff to decree the suit on the ground of adveRs.possession by two Courts below concurrently appears to be just.
Such finding is not perverse, however, interference is not warranted.
Simultaneously it is seen that the action has been initiated under section 248 of the M.P.Land Revenue Code against the plaintiff to take over possession on the suit land, however, it is observed that the plaintiff may be dispossessed by following due process of law and not forcefully.
In the considered opinion of this Court no substantial question of law arises for determination in this appeal, hence it is dismissed at admission stage.
(J.K.Maheshwari) Judge ap