1 S.A. No. 1741/2005 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 1741/2005 APPELLANT: Basant Pratap Singh PLAINTIFF Son of Satya Pratap Singh, Aged about 40 years, R/o Village-Madri, Tehsil Sirmour District Rewa, M.P. -Versus- RESPONDENT: State of Madhya Pradesh, Through Collector, Rewa, District Rewa, M.P. ............................................................................................... Appellant - Shri A.K.Singh, Advocate Respondent/State - Shri Rahul Jain, Government and Shri Akhilesh Singh, Panel Lawyer ............................................................................................... J U D G M E N T (07/09/2011) 1. This second appeal has been filed at the instance of plaintiff who has lost from both the Courts below. 2. The plaintiff filed a suit for declaration and possession in respect of the suit property the description whereof has been mentioned in the plaint and which is the subject matter of the suit. According to the plaintiff, the suit property is in his possession 50 years prior to the filing of suit which was filed on 1.8.2000 since at the time of his father and therefore 2 S.A. No. 1741/2005 he has acquired ownership right by adverse possession on the suit property. 2. The defendant refuted the plaint averments by filing written statement. The learned Trial Court framed necessary issues but found that plaintiff has not perfected his title by adverse possession. The first appeal which was filed by the plaintiff has been dismissed by the impugned judgment. 3. In this manner this second appeal has been filed by the plaintiff before this Court. 4. This Court admitted the second appeal on the following substantial questions of law:- “Having arrived at a finding by the learned two Courts below that plaintiff-appellant is in possession of the suit property since long, learned two Courts below erred in substantial error of law in not granting decree of injunction ?” 5. The contention of Shri A.K. Singh, learned counsel for the appellant is that since it has been found by learned two Courts below that plaintiff is in possession of the suit property for a considerable long period and his possession is also found to be proved by the documentary evidence 3 S.A. No. 1741/2005 filed in the Trial Court as well as in the Appellate Court, it was incumbent upon the courts below to decree the suit for injunction. 6. On the other hand, Shri Rahul Jain, learned Government Advocate and Shri Akhil Singh, learned Panel Lawyer for the respondent/State argued in support of the impugned judgment and submitted that plaintiff is a trespasser and, therefore, rightly the suit has been dismissed. 7. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law :- 8. On going through the findings of the learned two Courts below, this Court finds that plaintiff is in possession of the suit property since long although his possession has been entered as a trespasser in the revenue record. The possession of the plaintiff has been found to be proved in the documents (revenue record) which he has filed. Since plaintiff is in settled possession of the suit property for a considerable long period, I am of the view that without adopting the due procedure under the law, he cannot be dis-possessed from the suit property. In this regard, I may 4 S.A. No. 1741/2005 profitably place reliance on the decision of the Supreme Court Rame Gowda Vs. M. Varadappa Naidu and another (2004)1 SCC 769 and the Division Bench decision of this Court Gajendra Singh Vs. Man Singh and Others 2000(2) M.P.L.J. 316 wherein it has been held that if the plaintiff is in settled possession he can ask the decree of injunction even against the true owner. 9. Substantial question of law is thus answered that since plaintiff is in settled possession of the suit property since long, learned two Courts below erred in substantial error of law in not decreeing the suit of plaintiff for injunction. 10. This appeal is accordingly allowed and a decree of perpetuary injunction is granted in favour of the appellant- plaintiff directing the respondent not to interfere in his possession and not to dispossess him without adopting due procedure prescribed under the law. However, respondent shall be free to file necessary proceedings before the competent authority to take possession from the plaintiff in accordance with law. The judgment and decree passed by learned two Courts below is accordingly set aside and the suit of plaintiff for injunction stands decreed. A decree be 5 S.A. No. 1741/2005 drawn up accordingly. However, the suit for declaration of ownership right on the suit property stands dismissed and the judgment and decree of two Courts below in this regard is hereby affirmed. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs. (A.K. SHRIVASTAVA) Judge rao 6 S.A. No. 1741/2005 S.A. No.1741/2005 7.9.2011 Shri A.K. Singh, learned counsel for the appellant. Shri Rahul Jain, Government Advocate and Shri Akhilesh Singh, Panel Lawyer for the respondent/State. Learned counsel for the appellant is heard on the question of admission. This second appeal is admitted on the following substantial question of law:- “Having arrived at a finding by the learned two Courts below that plaintiff-appellant is in possession of the suit property since long, learned two Courts below erred in substantial error of law in not granting decree of injunction ?” Learned counsel for the parties submit that since the point involved in this appeal is short,the appeal itself be heard finally. The prayer is accepted and this appeal is heard finally. Judgment dictated, signed and dated separately. (A.K. SHRIVASTAVA) Judge rao