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CASE NO.: Appeal (civil)  6145 of 2002

PETITIONER: Prabhakar Adsule

RESPONDENT: State of M.P. & Anr.

DATE OF JUDGMENT: 06/05/2004

BENCH: CJI & G.P. Mathur.

JUDGMENT: JUDGMENT

G.P. MATHUR,J.

1.      This appeal by special leave has been preferred against the judgment  and decree dated 9.7.2001 of a Division bench of High Court of Madhya  Pradesh at Indore, by which the Letters Patent Appeal preferred by State of  Madhya Pradesh was allowed and the suit filed by the respondent, Prabhakar  Adsule was dismissed.

2.      The property in dispute is a plot measuring 8.70 acres situate in  Residency Area in Indore.   The respondent herein Prabhakar Adsule filed a  suit for declaration that he is the sole owner in possession of the plot in  dispute and also for injunction restraining the defendants from interfering   with his possession over the said plot in any manner.  Sometime after filing  of the suit, an amendment application was moved and relief for possession  was also claimed in the alternative.   The case of the plaintiff, in brief, was  that Somaji son of Girdhari was owner of the disputed plot which was  coming in his possession since 1918; that he executed a will bequeathing the  plot in favour of his daughter-in-law Sajjan Bai on 12.2.1954; that Sajjan  Bai executed a sale deed of the disputed plot in favour of the plaintiff on  24.12.1966 for a consideration of Rs.40,000/-; that since the date of the  execution of the sale deed, the plaintiff was continuing in possession over  the same; that proceedings under Section 248 M.P. Revenue Code were  initiated against him on 24.12.1966 which were decided against him by the  SDO but finally the matter was remanded from the Court of the  Commissioner to the Court of SDO for a fresh decision, who again decided  against the plaintiff on 1.9.1979, which gave the cause of action for filing  the suit.   Initially, the suit was contested by the State of Madhya Pradesh on  the ground, inter alia, that neither Somaji was owner of the disputed land nor  he was in possession over the same; that Sajjan Bai did not become the  owner of the property on the basis of any will executed in her favour; that  Sajjan Bai or Somaji were never in possession of the disputed plot; that no  title passed  to the plaintiff on account of the sale deed executed in his  favour and he was not in possession over the same.  It was further pleaded  that the disputed land was situate in Residency Area which vested with the  State of Madhya Bharat and thereafter in the State of Madhya Pradesh and  the plaintiff had no cause of action to file the suit.   M.P. Housing Board,  which was subsequently impleaded as defendant no.2 in the suit, also filed a  written statement taking the same pleas and specifically denied the right,  title or possession of Somaji and also of the plaintiff.   It was further pleaded  that the land in dispute was Nazul land, which was transferred by Madhya  Pradesh Government to M.P. Housing Board which thereafter came in  possession over the same.   The genuineness of the will executed by Somaji  in favour of Sajjan Bai on 12.2.1954 was also disputed.    

3.      The learned XIIth Additional District Judge, Indore, after appraising  the oral and documentary evidence adduced by the parties, dismissed the suit

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on 2.5.1992.   The appeal preferred by the plaintiff was allowed by a learned  Single Judge of the High Court on 15.11.1998 and the suit was decreed  declaring the plaintiff to be owner in possession of the land.   It was further  directed that if the defendant no.2 (M.P. Housing Board) has got possession  over the disputed land, the same should be formally handed over to the  plaintiff.    Feeling aggrieved by the judgment and decree of the learned  Single Judge, the State of Madhya Pradesh and M.P. Housing Board  preferred separate Letters Patent Appeals before a Division Bench of the  High Court.  The Letters Patent Appeal preferred by the State of Madhya  Pradesh was allowed with costs and the suit was dismissed affirming the  judgment and decree of the trial Court.   However, the appeal preferred by  M.P. Housing Board was dismissed.

4.      Shri S.K. Gambhir, learned senior counsel appearing for the plaintiff  appellant, has submitted that the Division Bench of the High Court has erred  in not correctly appreciating the oral and documentary evidence adduced by  the appellant which conclusively established his case.    He has also  submitted that the evidence adduced by the defendant no.1, namely State of  Madhya Pradesh, was wholly discrepant and in such circumstances, the  learned Single Judge of the High Court had rightly decreed the suit of the  plaintiff and the Division Bench has erred in reversing the decree passed by  him.   Shri Anoop G. Chaudhary, learned senior counsel for the State of  Madhya Pradesh, has submitted that the evidence adduced by the appellant  was not only untrustworthy, but was even otherwise too flimsy to establish  his title.   He has further submitted that certain features pointed out by the  trial Court, which cast serious doubt about the authenticity of the documents  produced by the plaintiff, were completely ignored by the learned Single  Judge and the Division Bench rightly discarded the said evidence.   Shri  Chaudhary has also submitted that in fact there was hardly any evidence on  record to establish the title of the plaintiff over such a large chunk of area in  the city of Indore, which was a very valuable property.

5.      In the plaint the source of Somaji’s title was not disclosed and it was  merely stated that he was owner of the disputed land and the same was  coming in his possession since 1918.   In his statement in Court, the plaintiff  came out with a case that the land had been given by way of grant.   However, the plaintiff did not lead any kind of evidence to prove the factum  of grant.    No document was produced to show that the land had been given  by way of grant either to Somaji or to his ancestors.    In order to establish  the appellant’s case, reliance has been placed basically on three documents.    Exh.P5 is a document dated 17.11.1953 executed by the Sarpanch of Gram  Panchayat Pipal Yahana, which is a ’Sifarish Patra’ (Recommendatory  Letter) and it merely recites that the Panchayat had no objection in Somaji  making construction according to the plan submitted by him.   There is no  mention of the disputed land in this document nor  it can be connected with  the same in any manner.  Therefore, this document is of no assistance to the  plaintiff.   Exh.P8 and Exh.P9  are copies of letters dated 20.2.1946 and  3.8.1946 sent by Residency Authority, Indore to Somaji.   By the first letter  permission was granted for making a boundary wall and by the second letter  permission was granted for sale of the land.  It is noteworthy that copies of  these documents have been issued by the Superintendent of Public Works of  Municipal Corporation, Indore.   Both these documents make reference to  the letters sent by Somaji seeking permission from the Residency Authority,  Indore.    The defendants produced the relevant file bearing no.114/1912 of  Residency Area Authority.    However, this file does not show that any  permission was given to Somaji for either construction of a boundary wall or  for sale of the plot.   The trial Court gave good reasons for doubting the  genuineness of these documents, which were ignored by the learned Single  Judge.   The Division Bench, in our opinion, has rightly held that the  documents were suspicious in nature and could not have been relied upon.    Even otherwise, a document granting permission to construct a boundary  wall cannot establish title to the property as even a lessee or a tenant can  seek permission for making such kind of construction.   The plaintiff has  admitted in his cross-examination that he was Mayor of Municipal  Corporation, Indore, in 1959-60, and was a Corporator till 1964.   He was in

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a position to exercise his influence in obtaining some kind of documents  from the Public Works Department of the Municipal Corporation.    

6.      The defendants have filed a copy of the lease deed which shows that a  lease for a period of 10 years was granted by Residency Area Authority,  Indore, in favour of General Secretary, United Church of Canada Mission,  Indore on 31.7.1947 for 5.11 acres of land and the boundary of the leased  out area more or less tallies with the boundary of the land in dispute.   This  document belies the case set up by the plaintiff that Somaji was owner in  possession of the land in dispute.    

7.      The Division Bench of the High Court has, after appraisal of the  evidence on record, come to a finding that the plaintiff has miserably failed  to prove his title to the property.   This is not the function of this Court, in a  special leave petition under Article 136 of the Constitution, to reappraise the  evidence unless the findings are shown to be perverse or they are vitiated by  any error of law resulting in miscarriage of justice.   Learned counsel for the  appellant has not been able to point out anything which may impel us to  interfere with the findings recorded by the High Court in the impugned  judgment.    

8.      The appeal is totally devoid of merit and is hereby dismissed with  costs.