LAWS(MPH)-2013-12-128

SARITA Vs. STATE OF M P & ANOTHER

Decided On December 02, 2013
SARITA Appellant
V/S
State Of M P And Another Respondents

JUDGEMENT

(1.) This is an appeal under Section 96 of the Code of Civil Procedure 1908, preferred by the plaintiff/appellant against dismissal of her Civil Suit No. 23-A/2011, vide judgment and decree dated 1st September 2012, passed by the Second Additional District Judge Guna, which was for seeking declaration of title over the house situated in Survey No. 457 in Sitaram Colony, Guna with relief of perpetual injunction against the defendants/State.

(2.) Bare facts necessary for determination of this case can now be stated. The plaintiff on the basis of purchase of the house situated in Survey No. 457 in Sitaram Colony Guna, claimed herself to be owner and possessor of the house. The State/Horticulture Department Guna on the other hand, is claiming ownership over Survey No. 460 at Sitaram Colony. A Horticulture Nursery of the department is situated in Survey No. 460. The plaintiff who is the purchaser of the house situated at Survey No. 457 by way of registered sale-deed dated dated 3rd August 2007 had purchased the same from Smt. Leeladevi Shrivastava for construction of the house whereas Smt. Leeladevi Shrivastava in turn purchased the vacant plot comprised in Survey No. 457 from previous owners, namely, Vishnu Prasad Pancholi Amarjeet Singh and Smt. Nanki devi by registered sale deed dated 16th March 2000. The Tehseldar after making demarcation of Survey No. 460 of the area, found that house of plaintiff is situated at Survey No. 460, so on finding that house of plaintiff is situated at Survey No. 460 issued notice of ejectment from the land belonging to the State to the plaintiff and other persons whose houses are situated over the land comprised in Survey No. 460 of that area. Under these circumstances, the plaintiff filed the suit for declaration of title over the house and for perpetual injunction restraining the defendants from interfering into her valid possession. The learned trial court after recording entire evidence and going through the factual and legal aspects of the matter, dismissed the suit hence the plaintiff/ appellant has preferred the instant appeal.

(3.) The submission put forth on behalf of the plaintiff/appellant is that the impugned judgment and decree under appeal is contrary to the facts and evidence on record and also contrary to the established principles of law, therefore, it is liable to be set aside. It is contended that the fact that the demarcation of Survey No. 460 which was admittedly Government land under possession of the Horticulture Department was done behind back of the plaintiff and no notice was issued before conducting such demarcation. Further no demarcation of the land on which the house of the plaintiff was situated was done by that time. So, the decision of the trial court that the house of the plaintiff was constructed at Survey No. 460 as appeared from the demarcation of survey by the concerned Tehsildar as per learned counsel for the appellant is not correct in law and consequently dismissal of the suit for declaration and perpetual injunction filed by the plaintiff in those circumstances was unsustainable. This having not been done, it is prayed that by allowing the appeal, the suit of the plaintiff for declaration of title and injunction may be decreed in her favour.