OM PRAKASH Vs. ASHOK KUMAR

JUDGEMENT

(1.) This Misc. Appeal has been filed under Order 43, Rule 1 of the Code of Civil Procedure, 1908 against the judgment dated 12-3-2003 passed by learned Second Additional District Judge, Sagar, Camp Khurai in Civil Appeal No. 140-A/2002 whereby the appeal has been allowed and the case has been remanded back to learned trial Court to decide the suit on merits. In brief the suit of plaintiff (respondent No. 1 herein this appeal) as pleaded in the plaint is that he is the Bhumiswami of the agricultural land in question, the description whereof has been mentioned in the plaint. According to the plaintiff, the defendants R1 and 2 are the members of the Joint Hindu Family. In the revenue record, Khasra No. 823 (old Khasra No. 468/1) area 1.73 hectares situated in Village Beena Itawa has been recorded in the name of first defendant Om Prakash (appellant No. 1 herein this appeal) while Khasra No. 824 (old Khasra No. 468/1), area 1.21 hectares has been recorded in the name of second defendant Ramesh Kumar (appellant No. 2 herein this appeal). At the spot, both the khasra numbers are in the form of 'maidh' and the total area is 2.940 hectares upon which these two defendants are cultivating the land jointly. Further it has been pleaded by the plaintiff that on the basis of muscle power these two defendants are trying to grab the land owned by the plaintiff. First of all, in the year 1984 the second defendant Ramesh Kumar encroached upon certain part of land of which plaintiff is the Bhumiswami but on getting it demarcated, he delivered the possession of the encroached portion back to the plaintiff. Thereafter the defendant No. 1 Om Prakash by embedding the flag stones on plaintiff's land bearing Survey No. 829, area 1 acre illegally dispossessed the plaintiff. Eventually, on 1-7-1992 the demarcation and the measurement was made in Revenue Case No. 5-A/2012 Year 1991-92 wherein the illegal possession of first defendant was found upon the plaintiffs land, area 0.42 hectares but he did not deliver the possession to the plaintiff, on the contrary on the basis of possession by showing him to be the Bhumiswami submitted necessary application in the Revenue Court for correction of the map. Further, it has been pleaded that the first defendant is also cultivating the crop and thereby causing monetary loss @ Rs. 900/- per annum to the plaintiff and, therefore, the plaintiff is entitled for the decree of compensation @ Rs. 900/- per annum for three years. Hence, the present suit has been filed for possession of the disputed property on the basis of Bhumiswami right and also on the basis of the terms of the demarcation which was made in favour of plaintiff by the Revenue Court with a further relief that the defendants be directed to pay damages of Rs. 2700/-and for mesne profit @ Rs. 900/- per annum.

(2.) The first and second defendants filed a joint written statement and denied the plaint averments. In a special plea, it has been pleaded that by mistake in the demarcation proceedings, the land of plaintiff was found but the settlement which was made in favour of plaintiff has been later on set aside. According to the defendants, their father bought the property in question vide registered sale deed although the land has been bought in the name of defendants. The State of M.P. however did not file any written statement.

(3.) The learned trial Court framed necessary issues and after recording evidence of the parties dismissed it on merit by further holding that in view of the Full Bench decision of this Court Ramgopal vs. Chetu, 1976 JabLJ 278, the suit for declaration of Bhumiswami right and possession, if it is filed, the same is maintainable in the Civil Court under section 9, Civil Procedure Code, but since the plaintiff has not sought any relief of declaration of Bhumiswami right, therefore, the suit was held to be not maintainable.