S.A. No. 260/2004 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava Second Appeal No. 260 of 2004 ....APPELLANTS: 1. Prem Kumari w/o Krishna Pratap, (Plaintiffs) Singh (since dead) 2. Chhatra Pratap Singh s/o Krishna Pratap Singh. 3. Mahesh Pratap Singh, s/o Krishna Pratap Singh. 4. Govind Singh s/o Krishna Pratap Singh. 5. Kusum Kumari D/o Krishna Pratap Singh. 6. Usha Rani, D /o Krishna Pratap Singh. 7. Kamlesh Kumari, D/o Krishna Pratap Singh. 8. Bhavana Kumari, D/o Krishna Pratap Singh. All residents of Narsinghgarh, Purwa, Tehsil and District Chhattarpur (M.P.) -Versus- ....RESPONDENTS: 1. State of M.P. through Collector, (Defendants) Dindori, Chhattarpur (M.P.) 2. Shri S.K. Nema, Tahsildar (Nazul), Chhattarpur (M.P.) 3. Tahsildar (Nazul), Chhattarpur (M.P.) ------------------------------------------------------------------------------------------- Shri R.K. Verma, learned counsel for the appellants. Shri D.K. Mishra, learned Panel Lawyer for the respondent No.1. -------------------------------------------------------------------------------------------- S.A. No. 260/2004 -2- O R D E R { 28 -09-2011 } The unsuccessful plaintiffs have taken the shelter of this Court by filing this second appeal under Section 100 CPC and thereby have assailed the judgment and decree of learned Courts below passed against them. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for declaration and injunction in respect to certain immovable property which is the subject matter of the suit and description whereof has been mentioned in the plaint, has been filed by the plaintiffs against the State of M.P. and its functionaries praying that it be declared that plaintiffs are the owners of the suit property and decree of injunction be also granted against the respondents-defendants that they should not interfere in the possession of the plaintiffs. 3. The defendants did not file any written statement and the suit was proceeded ex parte against them. 4. The learned Trial Court however did not exercise its discretion to decree the suit straightway under Order 8 Rule 10 CPC but directed the plaintiffs to lead the evidence. Eventually the plaintiffs adduced oral evidence and filed certain documents. The learned Trial Court on the basis of evidence placed on record came to hold that plaintiffs have perfected the ownership right by way of adverse possession, has not been proved, eventually dismissed the suit. The S.A. No. 260/2004 -3- first appeal which was filed by the appellants has been dismissed by the impugned judgment and decree. 5. In this manner this second appeal has been filed by the appellants-plaintiffs which was admitted on the following substantial question of law: “Whether the learned two Courts below erred in substantial error of law in not decreeing the suit of plaintiffs for injunction despite holding that they are in possession of the suit property?” 6. The contention of Shri Verma, learned counsel for the appellants-plaintiffs is that having arrived at a finding by the two Courts below that plaintiffs are in possession of the suit property, it was incumbent upon the two Courts below to decree the suit of plaintiffs for injunction. 7. On the other hand Shri Mishra, learned Panel Lawyer argued in support of the impugned judgment. 8. 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: 9. On bare perusal of the findings of the learned two Courts below it is gathered that plaintiffs are in possession of the suit property. True, the defendants did not file any written statement and they were proceeded ex parte but it will not straightway entail dismissal of the suit when there is specific finding of the two Courts below that plaintiffs are in possession of the suit property. Indeed, the two Courts below have also found the possession of plaintiffs on the S.A. No. 260/2004 -4- suit property. It is well settled in law that no party can be permitted to take law in his own hands and to dispossess a person who is possessing the property peacefully. In this view of the matter, since learned two Courts below have arrived at a pure finding of fact that plaintiffs are in possession of the suit property, certainly in that situation the two Courts below should have passed a decree of injunction in their favour. 10. The substantial question of law is, thus, answered that learned two Courts erred in substantial error of law in dismissing the suit of plaintiffs for injunction. The judgment and decree passed by the learned two Courts below is accordingly set aside to the extent indicated herein above and a decree of injunction is passed against the respondents that plaintiffs should not be dispossessed without adopting due process prescribed under the law. 11. Lastly, it has been submitted by Shri Verma, learned counsel for the appellants that appellants are the landless persons and they are having only the disputed house in their possession to take shelter in the limited area beneath a small roof and therefore if necessary application under the Madhya Pradesh Vas-sthan Dakhalkar (Bhumiswami Adhikaron Ka Pradan Kiya Jana) Adhiniyam, 1980 (in short, 'the Adhiniyam of 1980') is filed by them before the Competent Authority under the said Adhiniyam and the rules framed thereunder on or before 5.12.2011, the same may be decided by the said Authority within a period of one year from 5.12.2011. S.A. No. 260/2004 -5- 12. This contention is accepted and the appellants are hereby directed to file necessary application under the said Adhiniyam of 1980 and the rules framed thereunder before the competent authority on or before 5.12.2011 which shall be decided in accordance with law by the said authority. Till then the decree of injunction passed in favour of appellants shall be operative. However, if the application of the plaintiffs-appellants is dismissed by the competent authority, appellants shall be free to assail the said order in accordance with law in proper forum. It is hereby further made clear that in case appellants fail to file necessary application on or before 5.12.2011 under the Adhiniyam of 1980, the respondents shall be free to take necessary action against them to dispossess the plaintiffs in accordance with law. Accordingly, this appeal is allowed with no order as to costs. (A.K. SHRIVASTAVA) Judge rao/ S.A. No. 260/2004 -6-