Banshi Lal (died) Through LRs Vs State of Chhattisgarh

2.4 - Shail Kumari W/o Hulas Ram Aged About 40 Years R/o Bhatha Kokdi, Post Ghotwani, Tahsil Dhamdha, District - Durg (Chhattisgarh) 2.5 - Sarita W/o Ravindra Kumar Patel Aged About 35 Years Resident And Post Kanharpuri, Tahsil Dhamdha, District - Durg (Chhattisgarh)

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... Petitioner(s)

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Digitally signed by SHYNA AJAY Date: 2025.01.17 15:43:40 +0530

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versus

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2

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1 - State Of Chhattisgarh Through The Collector , Durg District OfÏce, Durg, Tahsil And District Durg Chhattisgarh

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... Respondent(s)

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For Appellants : Mr. H.B. Agrawal, Senior Advocate with Ms. Swati Agarwal, Advocate

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ForRespondent/ State

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: Mr. Dilman Rati Minj, Government Advocate

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Judgment on Board

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16/01/2025

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This Second Appeal has been preferred under Section 100 of the CPC against the judgment and decree dated 30.1.2012 passed by the Sixth Additional District Judge, Durg in Civil Appeal No.28A/2011, afÏrming the judgment and decree dated 10.3.2010 passed by Seventh Civil Judge Class-II, Durg, in Civil Suit No.34A/09, whereby, the suit has been dismissed.

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Briefly stated facts of the case are that the original appellants/plaintiffs (since dead) instituted a Civil Suit on 25.4.1987 for declaration and permanent injunction against the State by making averments that the land situated in Village Ruha Patwari Halka No.20, Tehsil and District Durg, bearing Khasra No.7 Rakba 0.98 acre, Khasra No.13 Rakba 0.19 acre, Khasra No.28/8 Rakba 0.13, Khasra No.63/1 & 64/1 Rakba 7.70 acre, total area 8.86 acres, (New respective Khasra Numbers are 222,

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258, 240, 241, 109 & 111 ) was in possession of the plaintiffs and their predecessor in title. The same was acquired by the registered Exchange Deed-Ex.P/2 & P/3 on 7.1.1950 between the father of the appellants Chain Singh and their co-sharer(s). The plaintiffs being Kabij Kast and having Malik Makbuja and Khudkast land became the land owners of the same. However, an Encroachment Case was registered in the year 1971-72 bearing Revenue Case No.7-A/68 Year 71-72 and in such case, an order has been passed on 7.11.1975 by the Naib Tehsildar, Durg, against the appellants. Assailing the said order, the appellants preferred an appeal before the SDO, Durg and the said authority by the order dated 27.2.1976 vide Ex.P/1 remitted the matter to concerned the Naib Tehsildar. During such period, an application under Section 57(2) of the M.P. (Now CG) Land Revenue Code (in short “the Code”) was filed by the plaintiffs against the State Government, which was dismissed by the order dated 26.4.1986 (Ex.P/10). Thereafter, the instant suit has been filed. During trial, the State was proceeded ex-parte and the written statement was also not filed by them.

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Based upon the pleadings of the plaintiffs, the trial Court framed as many as four issues. In order to prove his case, the plaintiff examined himself as PW-1, Milau as PW-2, Manharanlal as PW-3 and also filed an afÏdavit of Balaram and Manharanlal (PW-3) and further exhibited 10 documents vide Ex.-P/1 to P/10. After evaluation of the evidence, the trial Court reached to the

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conclusion vide para 9 of the judgment that no substantial document has been filed to prove the title of the plaintiffs and thereby, dismissed the suit. Against the said judgment, the appellants/plaintiffs preferred the First Appeal, which was also dismissed holding that the appellants have not raised any issue as per the provisions of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (in short “the Act, 1950”). As per Section 4 of the said Act, after issuance of the Notification under Section 3, all rights, title and interest vesting in the proprietor or any person having interest in such propriety right through the proprietor in such area including land (cultivable or barren) grass land etc, shall cease and be vested in the State for purposes of the State free of all encumbrances. Further, Ex-proprietor Chain Singh had not raised any dispute about the question of title under Section 14 of the said Act. Accordingly, the appeal has been dismissed

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This appeal was admitted for hearing on 9.3.2022 on the following substantial question of law :

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“Whether the Courts below was justified in granting the declaration that the appellants are title holder but not entitled for injunction on the suit land?

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Learned counsel for the appellants would submit that both the

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Courts below have not appreciated the oral and documentary evidence available on record in proper perspective. He submits that the State has proceeded ex-parte and the evidence adduced by the plaintiffs has not been rubutted in any manner, therefore, the plaintiffs have duly proved their case. Hence, the findings arrived at by both the Courts are perverse to the record. He submits that plaintiffs/appellants have duly proved the fact that the subject land has been acquired through the registered Exchange Deed vide Ex.P/2 and P/3 executed on 7.1.1950 between the father of the plaintiffs and their co-sharers. After the death of the father of the original plaintiffs in the year 1943, the plaintiffs are in continuous possession of the subject land and the land is recorded as Khudkast, therefore, under the provisions of the Act, 1950, the said land has remained with the proprietor and not with the State Government. Learned counsel for the appellants placed reliance on the matter of Tikamnath Gajpal and others Vs. State of Madhya Pradesh (Second Appeal No.58 of 1993 decided on 15.11.2011) and also on the matter of Agnigundala Venkata Ranga Rao Vs. Indukuru Ramachandra Reddy (Dead) by Legal Representatives and others, reported in (2017) 7 SCC 694, wherein, it has been observed that when the title of the plaintiff is duly proved, the permanent injunction ought to be granted.

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On the other hand, learned counsel for the State would submit that no document has been filed by the plaintiffs prior to the

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commencement of the Act, 1950 to prove that the subject land was recorded as Khudkast land in the name of the Ex-Proprietor. He would submit that in the matter of Tikamnath Gajpal (Supra) , the land was recorded in the year 1932-33, but the facts of the present case are different. He would further submit on an application filed under Section 57(2) of the Code by the plaintiffs against the State Government, the Revenue Authority has passed the order dated 26.4.1986 vide Ex.-P/10 against the appellants/plaintiffs for want of documentary evidence. He submits that earlier, no such application was moved by the Exproprietor under the Act, 1950, therefore, after passing of about 35 years, such application is not tenable. Hence, the claim of the plaintiffs that the subject land is the private land of the Ex-proprietor, has rightly been dismissed. He submits that in view of the provisions of the Act, 1950, the land is vested in favour of the State Government and recorded as grassland, which is correct.

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Heard learned counsel for the parties and also perused the record with utmost circumspection.

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Admittedly, in the present matter, no document has been filed by the plaintiffs showing that the subject land was recorded as Khudkast land in the name of the Ex-proprietor prior to the commencement of the Act, 1950. As per the provisions of Section 4 of the Act, 1950, all rights, title and interest vesting in the proprietor or any person having interest in such propriety

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right through the proprietor in such area including land, grass land etc, shall cease and be vested in the State. However, no application was preferred by the Ex-proprietor questioning the title on the subject land as per the provisions of Section 14 of the said Act. Hence, both the Courts below have rightly appreciated the evidence available on record and held that the plaintiffs have failed to establish any title over the subject land and thus, dismissed the suit.

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In view of the aforesaid discussion and considering the evidence available on record, this Court is of the view that the plaintiffs have failed to prove any title over the subject land and the State has rightly initiated the action for encroachment against the plaintiffs as per the provisions of the Code.

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It is well established that when there is a concurrent finding of fact, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding.

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In the matter of State of Rajasthan and others Vs. Shiv Dayal and another, reported in (2019) 8 SCC 637 , reiterating the settled proposition, it has been held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached.

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Having heard learned counsel for the parties and on perusal of the record of the case and in view of the above settled legal proposition, I find absolutely no merit in this appeal. In my view, the judgment and decree passed by both the two Courts below appear to be just, proper and legal. The findings recorded by both the Courts are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they does not call for any interference.

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As a consequence of the aforesaid discussion, the substantial question of law framed by this Court is answered in negative.

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Consequently, the Second Appeal fails and is hereby dismissed resulting in upholding of the judgment and decree of both the Courts below.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Banshi Lal (died) Through LRs v. State of Chhattisgarh

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Banshi Lal (died) Through LRs v. State of Chhattisgarh

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