@JUDGMENTTAG-ORDER
U.C. Maheshwari, J.@mdashThe appellant/defendant has preferred this appeal u/s 100 of CPC being aggrieved by the judgment and decree dated 26-2-2005 passed by 11th Additional District Judge, Bhopal in Regular Civil Appeal No. 91-A/04 reversing the decree of dismissal of the suit passed by 7th Civil Judge Class-II, Bhopal in Civil Original Suit No. 119-A/02, vide dated 20-7-2003.
2. The facts giving rise to this appeal are that the respondent Nos. 1 to 3 being plaintiff has filed a suit against the appellant and respondent Nos. 4 to 9 for declaration of title and permanent injunction in respect of agricultural land bearing Survey No. 93 area 1.44 acre situated at Village Mungalia.
3. As per averments of the plaintiff the respondent Nos. 1 to 3 had purchased the aforesaid land with some other land total area 38.23 acres from its earlier Bhumiswami Kashiram vide registered sale deed dated 28-4-1965. The same was executed in favour of respondent Nos. 2 and 3 only by virtue of it the same was mutated in their name in the revenue record since then they are remained in possession of it. The appellant and respondent Nos. 4 to 8 or their predecessors had no right and interest in this property directly or in any other manner. As such they have no right to interfere in the right, interest and possession of the respondent Nos. 1 to 3. The same was developed by them by digging a well and tube well with installation of a motor pump and taking electric connection but due to mistake the name of appellant was mutated in the revenue record as Bhumiswami in respect of aforesaid survey No. 93, to rectify such mistake they have filed an application in the office of Tehsildar. In which appellant has given their appearance and claimed the property as his own contrary to said registered sale deed. During this period settlement was held in which the aforesaid survey number was changed by new survey Nos. 104 and 105 as mentioned in the Khasra for the year 1998-2001. It was also pleaded that prior to inserting the name of appellant the name of respondent No. 4 Kamran Bee was mentioned in the Khasra, such entries in the name of appellant and respondent No. 4 were ab initio void and contrary to law and by taking advantage of such entries of Khasra the appellant and respondent Nos. 4 to 8 had trying to dispossess the respondent Nos. 1 to 3 from this land. Therefore, the instant suit was filed by respondent Nos. 1 to 3 as said above.
4. The appellant by filing his written statement contended that the plaintiff has filed the suit for declaring the Khasra entries as ab initio void, while for such relief the State of Madhya Pradesh is also a necessary party but the same has not been impleaded as party thus suit was not maintainable. The right, interest and possession of respondent Nos. 1 to 3 over the disputed land was denied with further contention that same had not been purchased by these respondents from Kashiram. In fact, the aforesaid land was remained in possession of respondent No. 4 from whom the appellant has purchased the same vide registered sale deed dated 3-6-2000, since then as Bhumiswami he is in possession of the same. Respondent Nos. 1 to 3 by taking advantage of some earlier sale deed (in which the aforesaid survey number has been mentioned) wants to dispossess the appellant from his lawful possession they have initiated the suit proceedings on false averments. Respondent Nos. 1 to 3 have never dug a well or tube well in it and such electric connection was also not taken by them. The entries in the revenue record are legal and correct. The respondent Nos. 1 to 3 have no authority to interfere in the interest and possession of the appellant. In addition to it, it has also been pleaded that long back said Kashiram and respondent No. 1 had purchased some agricultural land vide registered sale deed dated 28-12-1956 from Smt. Kasturi Bai but by mistake the survey No. 93 was also mentioned in such sale deed the same was rectified later on. The aforesaid land was remained as ancestral property of respondent Nos. 4 to 8 and they have been inherited the same from their fore-fathers/predecessors and sold to appellant vide aforesaid sale deed but the respondent Nos. 1 to 3 by taking advantage of their sale deed want to swallow the land of appellant. While the land is under cultivation of appellant. The suit is also barred by time and the same is not maintainable under the provisions of Specific Relief Act.
5. The respondent Nos. 4 to 8 had not filed any written statement as they remained ex pane before the Trial Court and respondent No. 4 was remained ex parte before the Subordinate Appellate Court.
6. In view of the aforesaid pleadings the issues were framed and evidence was recorded by the Trial Court. On consideration of the same on account of the name of respondent No. 4 in Khasra and the sale deed executed by her alongwith respondent Nos. 5 to 8 in favour of the appellant the suit was dismissed by the Trial Court. On which the appeal was preferred by respondent Nos. 1 to 3. The same was allowed and by decreeing their suit against the appellant the decree of the Trial Court was set aside. Hence, this appeal.
7. Shri G.C. Jain with Shri Anand Jain, learned Counsel for the appellant has submitted that the suit as filed by respondent Nos. 1 to 3 was barred by time and also on deficit Court fees as two declaratory reliefs have been prayed but the Court fees has been paid only for one. The suit was filed without complying the provisions of Section 80 of CPC and contrary to Section 34 of Specific Relief Act without praying the relief for possession. The same is also barred by Section 257 of Madhya Pradesh Land Revenue Code, 1959.
8. He has further submitted that disputed land was belonging to respondent No. 4 as her name was recorded in the Khasra since 1969-70 till execution of sale deed dated 3-6-2000 (Ex. D-1) in favour of the appellant. By virtue of it the name of appellant was mutated in the record of rights, since then he is in possession of the same as Bhumiswami. While in the sale deed executed by said Kasturi Bai in favour of Kashiram and respondent No. 1 vide dated 28-12-1956, the total land has been mentioned 38.23 acres by mentioning the number and area of disputed land along with some other land but on calculation of other land as mentioned in it the aforesaid survey number appears to be an additional and excess which shows that the survey No. 93 was mentioned in it due to some mistake or oversight. In fact, this survey number was not purchased by Kashiram and respondent No. 1. The same mistake was repeated by Kashiram on execution of sale deed in favour of respondent Nos. 2 and 3 vide dated 27-4-1965. By referring the document Ex. P-4 Khasra for the year 1968-69 he has submitted that in the column of occupancy right and Bhumiswami no one has been shown as Bhumiswami or in occupancy only survey number and area has been mentioned while the name of respondent No. 4 has been shown in the Khasra (Ex. P-6) for the year 1969-70. He also referred a certificate issued by the Sarpanch of the Village in which the said land was shown in possession of appellant. He has also referred the document Ex. D-14. The demand list of the Village Patel in which the name of respondent No. 4 was mentioned.
9. According to him in view of aforesaid documents and other evidence available on record the title, interest and possession of respondent No. 4 from whom the appellant has purchased the same and got it mutated in his name has been proved. In any case on the basis of revenue record he became the Bhumiswami of the same. Beside this he has perfected the right of Bhumiswami by adverse possession. Considering all the circumstances the Trial Court had dismissed the suit. On appeal, the Subordinate Appellate Court ought to have affirm the decree of the Trial Court but on wrong appreciation of the evidence the same has been set aside and the suit of respondent Nos. 1 to 3 has been decreed on wrong premises and prayed for admission of the appeal on proposed substantial questions of law as mentioned in the memo of appeal. He also placed his reliance on decided cases of this Court in
10. Having heard learned Counsel on perusing the impugned judgment and record it appears that the appellant is claiming the right by virtue of sale deed dated 3-6-2000 Ex. D-1 executed by respondent Nos. 4 to 8. On going through the averments of sale deed, I have not found any description of document or circumstance showing how the property was acquired in the family of respondent Nos. 4 to 8 at any point of time. The Ex. D-6 was executed by them only on the basis of entries in Khasra as Bhumiswami. On perusing Khasra entries for the years 1969-70 to 1972-73 Ex. D-6 it appears that the name of respondent No. 4 was mentioned as occupier of the land in column No. 3 while in Khasra entries for the year 1968-69 nobody''s name was mentioned in the column of Bhumiswami or occupier while in earlier Khasra Ex. P-3 for the years 1963-64 to 1965-66 and in Ex. P-5 for the year 1962-63 her name has not been mentioned in any manner. How the name of respondent No. 4 was inserted in said Khasra Ex. D-6 has not been mentioned in it. The appellant has also not filed any order of revenue or other authority on which the name of respondent No. 4 was mutated or inserted in the Khasra. Appellant has also not filed any Khasra showing the name of respondent No. 4 or her predecessor prior to 1969-70 as Bhumiswami or occupier of the same. In these circumstances, the entries made in the Khasra Ex. D-6 and onwards prima facie appears to be suspicious and does not give any strength to the case of appellant.
11. On the contrary the respondent Nos. 1 to 3/plaintiffs have produced and proved the sale deed Ex. P-1 executed by Kasturi Bai in favour of respondent No. 1 and Kashiram in which the deputed survey number was also mentioned and the same property was purchased by respondent Nos. 2 and 3 from Kashiram by Ex. P-2 vide dated 28-4-1965. There by respondent Nos. 1 to 3 acquired the right, title and possession of the same. The name of Kasturi Bai was mentioned in Khasra Ex. P-3 for the years 1963-64 to 1865-66 and the same was replaced with the name of Kashiram and Deobuksh, respondent No. 1. The Khasra Ex. P-3 shows that the land was recorded in the name of Kasturibai the predecessor of respondent Nos. 1 to 3 who executed the sale deed Ex. P-1 in favour of respondent No. 1 and Kashiram, and Kashiram executed the sale deed Ex. P-2 in favour of respondent Nos. 2 and 3. Therefore, right and title of the said respondents were proved by revenue record and document of title. While the right of appellant and his predecessor of the respondent Nos. 4 to 8 have not been proved by any admissible evidence.
12. On appreciation of aforesaid revenue record and documents and the evidence available on record. The Appellate Court has set aside the decree of the Trial Court regarding dismissal of the suit by decreeing the suit of respondents. In the aforesaid circumstances, I am of the considered view that the Appellate Court has not committed any error or infirmity in arriving such conclusion. Beside this, the findings of the Court below based on appreciation of Khasra entries which are not the document of title being findings of fact do not raise any substantial question of law and the same cannot be interfered or disturbed u/s 100 of CPC in view of the law laid down by the Apex Court in the matter of Corporation of the
We do agree that the suit cannot be dismissed on the ground that the relief of declaration of title and possession has not been specifically mentioned in the plaint. But the observations on the question whether the issue of title is involved in the suit or not are clearly discrepant. In some other part of the judgment, the High Court has mentioned a portion of the relevant evidence on the question of title and possession and made adverse comments against the findings of fact recorded by the First Appellate Court without giving any valid reason therefor. So far the revenue records are concerned, the Appellate Court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the First Appellate Court was erroneous. It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside.
13. Beside this the Khasra entries in revenue record are always kept for fiscal purpose therefore the same could not be considered to decide the title in favour of either of the parties as law laid down by the Apex Court in the matter of
3...It is settled law that the Jamabandi entries are only for fiscal purpose and they create no title....
14. This legal position was also considered by the Subordinate Appellate Court in reversing the decree of the Trial Court. Hence, I do not find any circumstance in this appeal, which raise any question of law rather than substantial question of law,
15. So for finding of Appellate Court regarding title is concerned the same is also found on sound principle of appreciation of evidence as appellant or his predecessor has not filed any document or order by which the same was acquired in their family and in the absence of it no title was found in favour of the appellant as the aforesaid sale deed Ex. D-1 was executed by respondent Nos. 4 to 8 without having any authority or rights over the disputed property. If the executants of it did not have any right then appellant as purchaser from them could not have received the better right in comparison of seller. Therefore, such finding is also not involved any substantial question of law.
16. So far other objections are concerned, question of limitation and necessary parties of the case have been decided by the Trial Court in favour of the respondent Nos. 1 to 3 and same were not challenged by filing cross-objection or by separate appeal on behalf of appellant, thus the same could not be assailed before this Court. Beside this in the present matter no relief has been prayed against the State of Madhya Pradesh, hence it was not necessary party, therefore, the compliance of Section 80 of CPC was not required, although it has been impleaded as formal party under the technical provisions of CPC. Thus, these findings are also not raising any substantial question of law.
17. The possession of the property was found with respondent Nos. 1 to 3, therefore in the absence of prayer for possession the suit was maintainable. Hence, the objection of Section 34 of Specific Relief Act is not sustainable. Thus, the approach of the Appellate Court even on this count is not erroneous. It is apparent from the record that the suit is filed for declaration of title and perpetual injunction the same is entertainable by the Civil Court and Revenue Court has no authority to decide the title. Thus, the approach of Appellate Court could not be said contrary to Section 257 of MPLRC in holding the suit as maintainable in the Civil Court.
18. In view of the aforesaid findings and the decision of the Apex Court, the case laws cited on behalf of the appellant in the matter of
19. In view of the aforesaid, this appeal do not involve any question of law rather than substantial question of law and the scope of Section 100 of CPC is very limited, the appeal could not be admitted as a matter of right. It can be admitted only availability of substantial question of law as laid down by the Apex Court in the matter of
The right of appeal is neither natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force of the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts however, erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of law.
It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the First Appellate Court. It is true that Lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in second appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
20. Therefore, in view of aforesaid discussion in the lack of substantial question of law, this appeal deserves to be and is hereby dismissed at the stage of motion hearing.
21. There shall be no order as to costs.
