1 S.A. No. 1243/2008 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 1243/2008 ......... Appellants : 1. Chandrika Prasad, Plaintiffs son of Shri Bhagwandas Brahnam, aged about 68 years, by occupation agriculturist; 2. Chandrashekhar Prasad, son of Shri Bhagwandas Brahmin, aged about 57 years, by occupation agriculturist, Both are residents of Village Barati, Tehsil Mauganj, District Rewa, M.P. Versus ........ Respondents : 1. State of M.P. through the Defendants Collector, District Rewa,(M.P.) 2. Chottai, son of Golhai Charmkar, aged 43 years, 3. Shriniwas, son of Ramgarib Charmkar, aged about 45 years, 4. Shankar, son of Piyare Kol, aged about 65 years, 5. Shivbalak, son of Gopoli Charmkar, aged about 55 years, 6. Amit, son of Shankar Kol, aged about 33 years, 2 S.A. No. 1243/2008 7. Shyamlal, son of Shobhnath Kol, aged about 32 years, 8. Tilakdhari, son of Vishram Charmkar, aged about 35 years, All are residents of Village Barati, Thana Laur, Tahsil Mauganj, District Rewa, M.P. ................................................................................................ Appellants - Shri Chandrahas Dubey, Advocate. Respondent No.1/State - Shri Anand Nema, Government Advocate. Respondents No.2 to 8 - Shri S.D. Mishra, Advocate. ............................................................................................... J U D G M E N T (05/05/2011) 1. This second appeal has been filed at the instance of plaintiffs against the impugned judgment and decree passed by learned First Appellate Court dismissing their suit. 2. A suit for declaration of Bhoomi-swami right and injunction has been filed by the plaintiffs in respect of certain agricultural land which is the subject matter of the suit and the description whereof has been mentioned in the plaint. According to the plaintiffs, their forefathers were owners of the suit property and on coming into force of M.P. Land Revenue Code, 1959, they acquired Bhoomi-swami rights and now plaintiffs are possessing the suit property as Bhoomi-swamis. The State Government is interfering in the 3 S.A. No. 1243/2008 possession of the plaintiffs and is also decreeing the Bhoomi-swami rights of the plaintiffs. The State Government has allotted the suit property to the defendants no. 2 to 8. Hence, the present suit has been filed for declaration of Bhoomi-swami rights and injunction. 3. The Defendant No.1/State Government did not file any written statement in the Trial Court. However, defendants no. 2 to 8 filed their written statement. 4. The learned Trial Court framed necessary issues and after recording evidence of the parties dismissed the suit of the plaintiffs for declaration of Bhoomi-swami rights however, by holding that plaintiffs are possessing the suit property, decreed their suit for injunction. 5. The plaintiffs as well as the defendants no. 2 to 8 assailed the judgment and decree passed by the learned Trial Court by filing two different appeals. The learned First Appellate Court by the impugned judgment and decree dismissed the appeal of the plaintiffs and allowed the appeal of the defendants no. 2 to 8. 6. In this manner, this second appeal has been filed by the plaintiffs. 4 S.A. No. 1243/2008 7. This Court on 15.01.2010 has admitted this Second Appeal on the following substantial question of law:- “Whether, the appellants who are in possession of the suit land can be dispossessed without taking the recourse of procedure established by law in view of law laid down by the Supreme Court in AIR 1968 620.?” 8. The contention of Shri Chandrahas Dubey, learned counsel for the appellants is that after having recorded the finding that plaintiffs are in possession though as trespassers, whether they can be dispossessed without following due process prescribed under the law. In support of his contention, learned counsel has placed heavy reliance on the decisions of the Apex Court in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others, AIR 1968 SC 620, Vellore Electric Corporation Ltd. and another Vs. State of Tamil Nadu and others (1989) 4 SCC 138, Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others (2004) 3 SCC 137 and Rame Gowda (Dead) by LRs. Vs. M. Varadappa Naidu (Dead) by LRs. and another (2004) 1 SCC 769. Hence, it has 5 S.A. No. 1243/2008 been prayed that plaintiffs are entitled for decree of injunction. 9. On the other hand, Shri Nema, learned Panel Lawyer appearing for the respondent no.1/State and Shri S.D. Mishra, learned counsel appearing for the respondents no.2 to 8 argued in support of the impugned judgment and submitted that since plaintiff is trespasser, he is not entitled for the decree of injunction. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law framed:- 11. On bare perusal of the findings rendered by the learned First Appellate Court in para 16, it is gathered that from 1961-62, the plaintiffs' possession has been recorded in the revenue record that they are possessing the suit property though as trespassers and If that would be the position, I am of the view that without following due process prescribed under the law, they cannot be dispossessed from the suit property. Indeed the Supreme Court in Lallu Yeshwant Singh(supra), Vellore Electric Corporation Ltd.(supra), Sopan Sukhdeo Sable (supra) and Rame Gowda(supra) has laid down the law and, therefore, I am 6 S.A. No. 1243/2008 of the view that plaintiffs are entitled for decree of injunction. The substantial question of law is decided against the respondents and in favour of appellants by holding that plaintiffs cannot be dispossessed without due process of law. 12. Resultantly this appeal is hereby allowed and the impugned judgment and decree passed by the learned First Appellate Court is hereby set aside. The decree passed by the learned Trial Court is hereby restored and the suit filed for injunction is hereby decreed. 13. It is however made clear that State Government shall be free to file necessary proceedings to dispossess the appellants/plaintiffs in accordance with law. 14. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs. (A.K. SHRIVASTAVA) JUDGE rao 7 S.A. No. 1243/2008 Second Appeal No. 1243/2008 05.05.2011 Shri Chandrahas Dubey, learned counsel for the appellants. Shri Anand Nema, learned Government Advocate for respondent no.1/State of M.P. Shri S.D. Mishra, learned counsel for respondents no.2 to 8. They are heard. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao 8 S.A. No. 1243/2008