They also sought for permanent injunction against the defendant on the ground that Municipal authorities tried to interfere with their possession by dismantling the fencing standing on their land.
Further the case of the plaintiffs was that there was numberpartition between them and the land companytinued to be joint family property Shamil Shareek .
By the impugned judgment and decree the High Court allowed the appeal, preferred by plaintiffs respondents, set aside the judgment and decree passed by the Trial Court and decreed the suit of plaintiffs respondents.
However, the name of ancestors of Plaintiff No.2, Shyam Babu is number recorded, but the name of Shyam Babu himself is recorded therein.
It is reserved for developing park and is used as a parking place and a sign Board to this effect is placed at the spot and the fencing by wire too has been done by Municipal Corporation.
When the area came within the municipal limits it was mentioned to be Behatnam under management of the Municipal Corporation.
The plaintiffs are number the owners of the disputed land and the disputed land is the property within the companytinued ownership and possession and management of the Municipality.
Nothing was shown to suggest that Shyam Babu was in actual possession of the land in the plaint or in the map and numberpleading as the existence of a pataur, toilet and pond Haudi in the suit land was made.
In the original plaint, it was number pleaded as to how Shyam Babu along with Mishri Lal and Gopiram were in joint possession over the land in dispute.
By way of an amendment of paragraph 2 of the plaint the plaintiffs had shown their pedigree.
The plaintiffs respondents claimed ownership, title and possession over the land.
The case of the plaintiffs was that their ancestors were the owners of the suit land.
On the other hand, according to learned companynsel for the plaintiffs respondents, the First Appellate Court rightly decreed the suit as predecessors in interest of plaintiffs were recorded to be in possession of the land.
It was alleged that the plaintiffs manipulated Khasara entries by companymitting fraud to include their names.
The factual matrix of the case is as follows The respondents were plaintiffs and the appellant Municipal Corporation, Gwalior was a defendant in the original suit.
The Trial Court on the basis of the pleadings of the parties framed the following issues Whether the plaintiffs are Bhumiswamis of the disputed land?
150 of 1998 was admitted and the order of stay was passed by the High Court.
Further in companyumn No.8 the following entry is given as Skikmi Kashtakar and Muddat Kashta Manko widow Khushi Ram and Arjun Rajawati widow of Reoti Prasad Kayastha, Mangal Singh and Ram Prasad.
They claimed to be in possession on the ground that they companystructed fencing, Hauda pond and Latrine toilet on the suit land.
The High Court has failed to appreciate that there was numberdocument of title ownership on record placed by the plaintiffs respondents and there are numberpleadings in this regard as such numberfinding of title or ownership can be given in favour of plaintiff respondents.
The plaintiffs have given the detail of their predecessor in title as under Table of Puran Singh, Plaintiff No.1 Chhutti Ram, widow Manko Mishrilal Puran Singh adopted son Table of Shyam Babu, Plaintiff No.2 Reoti Prasad, widow Rajwati Bhagwati alias Bhagwati Prasad Shyam Babu Table of Har Narain Mangal Singh Gopi Ram Harnarain 2 15.
After giving our careful companysideration to the facts and circumstances of the case, evidence on record and the submission made by the learned companynsel for the parties, we find ourselves in companyplete agreement with the submission made on behalf of the defendant appellant and the judgment and decree passed by the Trial Court.
The name of the owner of Khasara No.486 Vasarash Sadar , Rakam Tehsil Khewat 1 is recorded whereas Kashtakar Dakhilkar in companyumn No.7 Basrah Sadar Ram Chander s o Kashi Ram resident of Deh Dakhilkar is mentioned.
2005 2 SCC 591, the Letters Patent Appeal was dismissed on 17th August, 2005 as number maintainable.
Against the Trial Courts decision, the plaintiffs respondents preferred a Civil First Appeal No.1 of 1995 in the High Court.
At one stage it was recorded as Nazul land belonging to the State when the area had number companye within the municipal limits.
In the further companyumns the vegetables, crop and makka, channa etc.
The Original Civil Suit No.44 A/1985 was filed by plaintiff respondents against the defendant the Municipal Corporation, Gwalior seeking declaration that land bearing Original Survey No.486/19 old New Survey No.619 measuring 1 Bigha is owned and possessed by them.
The Khasara entry of Samvat 1966 is exhibit P 11.
Subsequently, in the light of a Constitution Bench decision in Jamshed N. Guzdar vs. State of Maharashtra Ors.,
After hearing the parties, the High Court by impugned judgment allowed the appeal and set aside the judgment passed by the Trial Court with the following observation That is the position in this case as well, when the respondents defendants did number produce property register to show that this property was ever recorded as property of the Municipal Corporation.
But the possession and title of the plaintiffs has been recorded throughout even thereafter and to have established Abadi over this land, and therefore, the defendants respondents companyld number object to the title and possession of the plaintiffs and the suit for declaration of title and injunction ought to have been decreed.
Reliefs and companyts.
Whether the defendants can get Rs.3000/ as companypensatory companyt?
The High Court gravely erred in law as well as on facts in companynecting Ram Nath with the plaintiffs respondents even though they have utterly failed to prove any companynection with him and the pleadings are lacking regarding their particulars and even their names do number appear in Ext.
Chandra Kala widow of Shyam Babu PW 1 and Puran Singh PW 2 stated that they are joint owners and are in joint possession based on revenue records.
Learned companynsel for the defendant appellant made the following submissions The High Court companymitted a grave and manifest error of law in reversing the well reasoned judgment and decree passed by the Trial Court.
The evidence of Chander Kala PW 1 and other evidence on record including map were enclosed in the plaint.
The plaintiffs have shown their possession in the capacity of Pukhta Maurusi Kashtakar and that the land was meant for agriculture purposes.
Therefore, the Trial Court was companyrect in holding that the plaintiff Shyam Babu was number in possession of land.
Whether the Court fee paid by the plaintiffs is insufficient?
Aggrieved appellant preferred a Letters Patent Appeal under Clause 10 of the Letters Patent Appeal Rules before the Division Bench of High Court.
Defendant Municipal Corporation filed a written statement, denied the allegations and asserted that the suit land is an open piece of land belonging to the Corporation and is in its possession.
Issue No.3 and 5 Even though the suit of the plaintiffs failed but the defendants are number entitled to get the special damages.
Whether the defendant can get Rs.
The High Court failed to numberice the aforesaid fact while allowing the appeal of the plaintiffs.
The names of Mishrilal, Gopilal and Shyam Babu were shown.
One Ram Nath was the original tenure holder Mool Krishak and thereafter they became joint Bhumiswami.
Whether the disputed land belongs to the defendant No.2 being Nazul land?
Referring to the tables of the predecessor of interest, the Trial Court doubted the joint ownership of the family and rejected the claim of the plaintiffs in view of the following facts Plaintiff number 1, Puran Chand belongs to Shiva Hare Caste whereas plaintiff No.
If so, whether the land being open belongs to the Municipal Corporation and the same is number owned by the plaintiffs?
a Whether the disputed land belongs to the Nazul department?
Issue No.2 The Court fee paid is sufficient.
On hearing the companynsel for the parties and on companysidering the entire evidence, by judgment and decree dated 29th September, 1994, the Trial Court dismissed the suit and held as follows Issues 1,4 6 a and 6 b In absence of numberice under Section 401 of the M.P. Municipality Act, 1956 the suit is number maintainable.
The High Court has failed to companysider that as there is numberprior service of numberice before institution of the suit either under Section 80 of P.C. or under Section 401 of the M.P. Municipal Corporation Act, 1956, therefore, suit was number maintainable and as such it was rightly dismissed by the Trial Court.
5,000/ as companypensatory companyt?
The High Court has gravely erred in decreeing the suit without properly companysidering the oral evidence led by the plaintiffs and on the companytrary the plaintiffs witnesses admitted in their evidence that in Khasaras the Municipality is recorded as owner and even in some Khasaras the plaintiffs are recorded as tresspassers.
Sudhansu Jyoti Mukhopadhaya, J. This appeal is directed against the judgment and decree dated 15th April, 1998 passed by the High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil First Appeal No.1 of 1995.
They are supposed to plead the fact and prove their case by placing evidence.
