1 S.A. No. 356/2003 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 356/2003 ....APPELLANTS: 1. Buddha alias Buddhsen Mallah, S/o Ram Kripal 2. Rajaram Mallah, S/o Ramsiya Mallah 3. (a) Ram Naresh Mallah, S/o Parmeshwardeen Mallah, (b) Ram Mallah, S/o Parmeshwardeen Mallah, All residents of Gram Tedhgawa, Tehsil Rampur Baghelan, District Satna, (M.P.) -Versus- ....RESPONDENTS: 1. Pradumn Singh, S/o Randman Singh, 2. (a) Ram Singh S/o Aniruddh Singh, (b) Siddheshwar Singh, S/o Aniruddh Singh, (c) Mst. Kusma, Wd/o Aniruddh Singh All residents of Gram Tedhgawa, Tehsil Rampur Baghelan, District Satna, (M.P.) 2 S.A. No. 356/2003 3. State of M.P. Through Collector, Satna, District Satna, (M.P.) ................................................................................................ Appellants - Shri B.K.Singh, Advocate Respondents - Shri Praveen Dave, Advocate. ................................................................................................ J U D G M E N T (12/09/2011) 1. This second appeal has been filed at the instance of plaintiffs. 2. A suit for declaration and injunction in respect of certain agricultural land, the description whereof has been mentioned in the plaint and which is the subject matter of the suit has been filed by the plaintiffs more than 25 years ago, on 22.8.1986. According to the plaintiffs they are the Bhumi-swami of the suit property and defendants are trying to interfere in their possession and therefore, it be declared that they are the Bhumiswami of the suit property and defendants be restrained from interfering in the suit property by passing a decree of perpetuary injunction. 3. The defendants 1 and 2 have refuted the plaint averments by filing a joint written statement. They have also filed a counter claim and pleaded that under the garb of order passed by learned Trial Court under Order 39 Rule 1 and 2 CPC the plaintiffs took possession of the suit property illegally and, therefore, the possession of the suit property 3 S.A. No. 356/2003 be delivered to them since they are the Bhumiswami of the suit property. 4. The learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit of plaintiffs and further dismissed the counter claim of the defendants. 5. The defendants feeling aggrieved by the judgment and decree passed by the learned Trial Court filed first appeal which has been allowed by the impugned judgment and while dismissing the suit of plaintiffs, the learned First Appellate Court also decreed the counter claim of the defendants holding and declaring them to be the Bhumiswami and further passed a decree of possession in their favour. 6. In this manner, this second appeal has been filed by the plaintiffs. 7. This Court on 19.3.2008 admitted the appeal on the following substantial question of law:- “Whether the lower appellate Court erred in decreeing the counter claim filed by the defendants respondents for declaration who had not pleaded his title or disclosed in the counter claim?” 4 S.A. No. 356/2003 8. The contention of Shri B.K. Singh, learned counsel for the appellants is that without claiming decree of declaration in their counter claim by the defendants, the learned First Appellate Court erred in substantial error of law in granting decree of declaration of Bhumiswami rights to the defendants-respondents. 9. On the other hand, Shri Praveen Dave, learned counsel for the respondents argued in support of the impugned judgment and decree. Regarding Substantial Question of Law framed:- 10. It has been categorically held by learned First Appellate Court, para 19 onwards that much prior to 22.8.1986 (date of filing of the suit) in the year 1958-59, the name of defendants-respondents have been recorded as Bhumiswami having possession on the suit property during the settlement year and in that regard Ex. D/1 has been filed. Similarly Khasra Ex. D/2 to D/4 proves that they continued in possession of the suit property as Bhumiswami in the later years 1975-76 and during these years, the plaintiffs' possession has not been recorded. Immediately before filing of the suit in the year 1983-84 the name of defendants have been recorded as Bhumiswami and, therefore, they were in possession of the suit property 5 S.A. No. 356/2003 immediately before filing of the suit. The learned First Appellate Court on the basis of the material placed on record rightly came to hold that the defendants-respondents were dispossessed by the plaintiffs under the garb of temporary injunction order issued in their favour. 11. In these facts and circumstances, legal maxim “actus curiae neminem gravabit” is applicable which would mean that a party should not be prejudiced by the action or inaction of any Court. Since the plaintiffs by taking law in their own hands have taken the possession of the suit property under the garb of temporary injunction order certainly defendants are legally bound to take possession on the basis of their title which they have pleaded in their counter claim. No substantial question of law has been framed by this Court whether defendants are not the Bhumiswami of the suit property and they were possessing the suit property on the date of filing of the suit, hence, the said finding of learned First Appellate Court had attained finality and it is hereby held that the defendants are the Bhumiswami of the suit property and were possessing the suit property on the date of filing of the suit. 12. Indeed in these facts and circumstances, it was not even incumbent upon the defendants to ask for a decree of 6 S.A. No. 356/2003 possession by filing a counter claim and this has been so held by the Single Bench of this Court in Bhagwan Vs. Manibai 1994(20 M.P.W.N. 36 in which R.C. Lahoti (J) as His Lordship then was, has held as under :- “It is well settled that no person shall suffer by a wrong order of the Court. The lower appellate Court has formed an unhesitating opinion that the plaintiff -appellant did not deserve any interim injunction order being passed in his favour as he was certainly not in possession of the suit property on the date of the suit. It is the wrong injunction order of the trial Court which became instrumental in plaintiff depriving the defendants of their possession over the suit property. When the Court superseded that interim injunction order it was not only empowered but was duty- bound to undo the wrong done under its order which had ceased to exist. No exception can be taken to the relief allowed by the Court to the defendants” 13. The present case is rather on better footings because in the present case the defendants have filed a counter claim asking a relief of possession on the basis of title. The defendants are the Bhumiswami of the suit property. This finding of learned First Appellate Court had attained finality because no substantial question of law has been framed while admitting the second appeal. Thus, the finding of the learned First Appellate Court holding that defendants being Bhumiswami are entitled for possession is hereby upheld. However, since no specific prayer has been made by the 7 S.A. No. 356/2003 defendants that they be declared to be Bhumiswami of the suit property, a decree of declaration in that regard cannot be passed. However, the finding of the learned First Appellate Court holding the defendants to be the Bhumiswami of the suit property and are also entitled for decree of possession is hereby affirmed. 14. The substantial question of law is thus answered that although decree of declaration of Bhumiswami right cannot be passed in favour of defendants-respondents since it has not been prayed, but it is hereby held that they are the Bhumiswami of the suit property and are entitled for possession of the suit property and learned First Appellate Court did not commit any error in passing the decree in that regard. The decree of learned First Appellate Court is modified to that extent. 15. This appeal is accordingly disposed of. No order as to costs. (A.K. SHRIVASTAVA) Judge rao 8 S.A. No. 356/2003