Chandrarani & Ors. vs Sheelarani Jain & Ors. on 26 September, 2022

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Madhya Pradesh High Court

Chandrarani & Ors. vs Sheelarani Jain & Ors. on 26 September, 2022

This second appeal has been filed by plaintiffs challenging the judgment and decree dated 24.12.1997 passed by XII Additional District Judge, Jabalpur in civil appeal no.11-A/97 confirming the judgment and decree dated 24.12.1996 passed by IX Civil Judge Class-II, Jabalpur in civil suit no.18-A/96, whereby learned trial Court dismissed the plaintiffs' suit filed for possession of plot no.77, block no.29, situated at Miloniganj ward, Jabalpur as shown in red colour in the plaint map.

2. The facts in short are that, the original plaintiffs Shikharchand, Govinddas and Vallabhdas Jain instituted a suit for possession of the said plot claiming themselves to be owner of it and alleged that the same was given to the original defendant Mithailal on license in the year 1964 with the assurance that after arrangement of the accommodation, he would hand over peaceful possession to the plaintiffs after removing the debris from the plot. It is also alleged that for raising construction of house on the plot, the plaintiffs also provided certain material to the defendant. The plaintiffs many times requested the defendant to handover possession but despite giving assurance he did not return possession. In the year 1976, the defendant started raising construction by making addition and alterations, then the plaintiff 3 issued a notice on 21.05.1976 requesting the defendant not to raise construction and to hand over vacant possession and after service of notice, the defendant approached to the plaintiffs and requested to let him completed the construction, which was permitted by the plaintiffs. It is alleged that in the year 1984, the plaintiffs again

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requested the defendant to hand over vacant possession of the plot, but he avoided, then the plaintiffs issued notice on 17.05.1984 cancelling the license and asked him to return possession of the plot, which was replied by the defendants illegally, making false allegations. On inter alia allegations the suit was instituted.

3. The defendant appeared and filed written statement denying the plaint allegations and also denied ownership of the plaintiffs over the suit plot (house) and it was clearly contended that Battilal and prior to him Shri Murarilal, Gendalal and Bhagchand were owners of the suit plot. It was also contended that the house is in existence for more than 25 years or more. The map annexed with the plaint is wrong and it does not give the correct measurements. It is contended that plaintiffs are not owners of the suit plot but the defendant is in possession of the same and there is single storied building constructed over the suit plot. By way of amendment, the defendant had also taken plea of adverse possession over the suit plot claiming himself to be in possession for more than 28 years and alleged that prior to which, father of defendant late Shri Bhagchand was in possession of the suit plot. With the aforesaid contentions, the suit was prayed to be dismissed.

4. On the basis of plaint allegations, learned trial court framed as many as nine issues and recorded evidence of the parties and after considering the same, vide its judgement and decree dtd. 24.12.1996 held

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that the plaintiffs are owner of disputed plot and defendant is not proved to be licensee of the plaintiffs and held that the plaintiffs are not entitled for possession of the disputed plot. Considering the long possession of the defendant, learned trial Court also held that the defendant has acquired title by adverse possession.

5. Upon civil appeal filed by the plaintiffs, learned first appellate Court vide its judgment and decree dated 24.12.1997 confirmed the judgment and decree passed by learned trial Court and also held that the suit is barred by limitation.

6. This second appeal was admitted by this Court on 17.07.1998 on the following substantial questions of law:

"(1) Whether in the facts and circumstances of the case it can be held that the appellants have failed to prove that late Mithailal was his licencee ?

(2) Whether in the facts and circumstances of the case, it can be held that the suit of the appellant is barred by limitation ? (3) Whether in the facts and circumstances of the case, it can be held that from the documents Ex.P-1, it is proved that late Shri Mithailal was in possession since 1958 over the suit land during the life time of his father late Shri Bhagchand ?"

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7. Learned counsel for the appellants submits that there is sufficient evidence available on record to the effect that the plaintiffs are owners of the disputed plot and same was given to the defendant-Mithailal for residence as a licencee, as he did not possess any house at that time and subsequently, the plaintiffs had also provided material to the defendant to raise construction of house. He submits that in the light of finding of ownership recorded by learned Courts below and in the light of provision contained in Article 65 of the Limitation Act, the suit cannot be held to be barred by limitation. He also submits that there is nothing in the document (Ex.P-1) to infer that the defendant Mithailal was in possession of the plot prior to 1958 since the life time of his father late Shri Bhagchand. With these submissions, he submits that second appeal deserves to be allowed and the suit deserves to be decreed.

8. Learned counsel for the appellant in support of his contention placed reliance on decision in the case of (i) Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma Alias Nacharamma (2008) 15 SCC 150; (ii) Mudadasani Venkata Narsaiah vs. Muddasani Sarojana (2016) 12 SCC 288; (iii) Uttam Chand thr. LRs. vs. Nathuram thr. LRs. (2020) 11 SCC 263; (iv) Motilal vs. Sunder Bai 1974 MPLJ (Note 68); (v) Ashok Kumar vs. Krishna Chand 2012 (3) MPLJ 457, (vi) Vijay Arjun Bhagan vs. Nana Laxman 2019 (1) MPLJ 529; (vii) Ravinder Kaur vs. Manjeet Kaur 2019(4) MPLJ 196 and (viii) Vishwanath Singh vs. Munni Bai 2019(4) MPLJ 538.

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9. Learned counsel for the respondents submits that learned Court below has on the basis of mutation order held the plaintiffs to be owner of the suit plot which infact is a constructed house. He submits that no document of title i.e. the Will/Gift Deed or the judgment and decree of the year 1943 has been placed on record, in proof of title over the suit plot. He submits that in the existing facts and circumstances, the suit mere for possession without seeking declaration of title was not maintainable. He further submits that after evaluating the oral and documentary evidence available on record, learned Courts below have rightly held that there is no relationship of "licensor" or "licensee" between the plaintiffs and defendant and the finding on such question is pure finding of fact and is not liable to be interfered with in the limited scope of Section 100 CPC. He further submits that learned Courts below have rightly held the suit to be barred by limitation and the first appellate Court has not committed any illegality in holding that the defendant Mithailal was in possession prior to1958 since the life time of his father late Shri Bhagchand. With the aforesaid submissions he submits that the second appeal deserves to be dismissed because all the three substantial questions of law are questions of facts.

Substantial question of law no. 1:

10. Although the plaintiffs have come with the case that the plaintiffs had given the suit plot to the defendant late Mithailal for residence as a licensee, but there is no documentary evidence available on record to

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prove the relationship of licensor and licensee between the parties and learned both the Courts below have, after having considered oral and documentary evidence available on record, especially the statement of plaintiff 3-Vallabhdas (PW1), held that the defendant Mithailal was not licensee of the plaintiffs. If the statement of plaintiff 3-Vallabhdas (PW1) is taken into consideration, then it speaks something else. The relevant part of statement of Vallabhdas (PW1) is reproduced as under:-

"5. feBkbZ yky esjs ppsjs HkkbZ gSaA ,oa Jh Mh- lh- tSu vf/koDrk ds igyh eka ds iq= gSAa ¼lkSrsyh ekaa½ ;g dguk lgh gS fd uUgs yky ds rhu iq= Fks k cMa+s dk uke Lo Jh eqjkjh yky] e>ys dk uke Lo- Jh xsank yky ,oa NksVs yM+ds dk uke Lo- Jh HkkxpUn tSu FkkA Lo- Jh eqjkjh yky dh e`R;q lu~ 1955 esa gqbZ A ml le; ljdkjh fjdkMZ ij eqjkjh yky uUgs yky dk uke p<+k FkkA eq>s ;kn ugha gS fd xsank yky vkSj Hkkx pUn dk uke p<~k Fkk ;k ugha A edku ua 64 dk dqy ,fj;k fdruk gS eq>s ;kn ugha gSA ml le; ljdkjh fjdkMZ esa esjs nksuksa cM+s HkkbZ] fl[kj pUn xksfoUn nkl ,oa esjk uke dkjiksjs'ku fjdkMZ esa 64 nf{k.k feykSuh xat ij ckgSfl;r ekyfdr FkkA 14-++---------------;kn ugh gSA ;g IykV esjs uke esjs HkkbZ;ksa ds vFkkZr oknh x.kksa ds uke ij bl izdkj vk;k fd uUgs yky th vkSj eUuw yky th nks lxs HkkbZ Fks eUuw yky dh ,d iq=h Fkh fcjth ckbZ ,slk dgk tkrk gS fd fcjth ckbZ us viuh olh;r esa ge rhuksa HkkbZ;ksa ds uke viuh tk;tkn lkSai nh ftlesa okn xzLr IykV ,oa e- u- 64 Hkh ''kkfey gSA eq>s ;g ;kn ugh gS fd okn xzLr IykV ij esjs uke p<us ds iwoZ LoxhZ; Jh eqjkjh yky] ,oa xsank yky ,oa Hkkxpan dk uke p<k gksxkA utwy foHkkx esa esjs cM+s HkkbZ }kjk tks vkosnu fn;k x;k Fkk mlds ckjs esa eq>s dksbZ tkudkjh ugh gSA mudh iSjoh esjs cM+s HkkbZ djrs FksA ;g dguk lgh gS fd esjk uke p<+us ds igys okn xzLr

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IykV ij ,oa e- u- 64 ij eqjkjh yky] xsank yky ,oa Hkkxpan dk uke p<+k gqvk gksxk A ;g dguk lgh gS fd eqjkjh yky] xsank yky ,oa Hkkxpan rhuksa lxs HkkbZ"FksA**

11. In view of the aforesaid, it cannot be said that father of defendant- Mithailal namely Bhagchand was not in possession of the suit plot/house, but it appears that he was in possession of the same as owner. In presence of the aforesaid admissions made by plaintiff 3 himself, it was on part of the plaintiffs to seek declaration of their exclusive title and then to pray for possession of the suit plot/house. Upon reply dtd. 25.5.1984 (Ex.P/4) to the notice dtd.17.5.84 (Ex.P/3) issued by the plaintiffs, challenging their title, it can very well be said that there were clouds over title of the plaintiffs, but the plaintiffs did not choose to seek declaration even after denial of title by the defendant, which in the light of decision of Supreme Court in the case of ANATHULA SUDHAKAR VERSUS P. BUCHI REDDY (DEAD) BY LRS & ORS. (2008) 4 SCC594, was necessary. Relevant extract of which is as under :

"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a pro- hibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the plaintiff is not disputed, but he is not in posses-

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sion, his remedy is to file a suit for possession and seek in addition, if nec- essary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunc- tion, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may with- draw the suit for bare injunction, with permission of the court to file a com- prehensive suit for declaration and injunction. He may file the suit for dec- laration with consequential relief, even after the suit for injunction is dis- missed, where the suit raised only the issue of possession and not any issue of title."

12. In view of the aforesaid and in view of the concurrent find- ings recorded by learned Courts below, it cannot be said that there existed any relationship of licensor and licensee between the parties.

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Even otherwise, the finding on the question of relationship of licen- sor and licensee is pure finding of fact and is not liable to be inter- fered with in the limited scope of section 100 CPC.

Substantial question of law no.2 & 3 :

13. Both these questions being related to each other, are being decided together. The plaintiffs have pleaded that firstly in the year 1965 the defendant came in possession of the suit plot but according to the statement of plaintiff 3-Vallabhdas and according to the concurrent findings recorded by learned Courts below, the plaintiffs have failed to prove this fact. Upon consideration of oral and documentary evidence, learned first appellate Court has held that the defendant Mithailal was in possession of the suit plot since prior to the year 1958. Meaning thereby, the period of entry of the defendant into possession over the suit plot, as licensee becomes doubtful. If entire statement of plaintiff 3-Vallabhdas is taken into consideration, then it becomes clear that the defendant Mithailal was in possession of the suit plot since the time of his father Bhagchand. If this fact is taken to be true, then it can very well be inferred that Bhagchand was also in possession of the suit plot.

14. Further, from the order dtd. 14.10.1959 (Ex.P/1), it becomes clear that Bhagchand was not given any hearing opportunity at the time of passing of this order of mutation, in which it has been mentioned that Bhagchand has not raised any objection to this Mutation, which shows that at that time there was something in favour of Bhagchand for which

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he should have been given opportunity of hearing. It is pertinent to mention here that name of plaintiffs was mutated over the plot no.77 on the basis of some judgement and decree of civil court passed in civil suit no. 12-A/1943, copy of which has not been placed on record by the plaintiffs. If the contents of the order dtd. 14.10.1959 are taken to be true, then again the title of the plaintiffs over plot no.77 becomes doubtful, because para 6 of the order (Ex.P/1) recites ".....and the clear verdict of the civil court regarding the title of the applicants to house no. 286 (old) new no.64 in favour of the applicants gives a finality to this question. ......"

15. Again it is pertinent to mention here that the order (Ex.P/1) makes the position clear to the effect that the house no. 64 (old no.286) is constructed on plot no.34 and disputed plot no. 77 is different property and has no nexus with the plot no.34/house no.64. Apparently, while mutating the name of the plaintiffs over plot no. 34 and 77, the judgement of civil suit no. 12-A/1943 was taken into consideration, which was not in relation to the plot no.77. Certainly, all the aforesaid has created a confusion in the mind of learned trial Court, resultantly a finding of ownership over the plot no. 77 has been recorded by learned trial Court in favour of the plaintiffs, which is not sustainable in view of the aforesaid discussion.

16. Pressing into service the provisions of order 41 rule 22 and 33 CPC learned counsel for the respondents submits that finding on question of

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title recorded by learned trial Court, actually has been set aside by learned first appellate Court during the course of discussion made in para 8 to 14 of impugned judgement, but for want of framing of any specific point for determination, learned first appellate Court has not given clear verdict regarding title of the plaintiffs, but in fact the finding of title of the plaintiffs has been reversed by learned first appellate Court. I have perused judgement of first appellate Court, and from perusal of the discussion made by learned first appellate Court, the contention of the learned Counsel for the respondents appears to be correct. However, the learned counsel submits that the plaintiffs are not owner of the plot in question and prays for holding so.

17. In the case of (2020) 15 SCC 681 STATE OF ANDHRA PRADESH AND OTHERS VERSUS B. RANGA REDDY (D) BY LRS AND OTHERS, the Supreme Court has held as under :

'36. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it."

18. It is well settled that mere mutation of the name in the revenue record neither confers title on a person nor extinguishes title of real owner. In the case of MALKHAN SINGH VERSUS SOHAN SINGH

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AND OTHERS AIR 1986 SC 500 the supreme Court has held under :

"The application filed by Malkhan Singh to succeed Kishan Singh was virtually an application for mutation and the decision of the consolidation authorities that Malkhan Singh was not an adopted son of Kishan Singh would not amount to a decision of the title and interest of Malkhan Singh. It is well settled that the mutation proceedings do not decide the rights and title of the parties and it is always open to a party aggrieved to get its rights adjudicated upon by a competent court despite the order in mutation proceedings. If the consolidation authorities had decided the title of Malkhan Singh in consolidation proceedings then certainly a subsequent suit for the same would be barred by the principles of res judicata."

19. Similarly in the case of PREM NATH KHANNA & ORS. VER- SUS NARINDER NATH KAPOOR (DEAD) THROUGH L.RS & ORS. (2016) 12 SCC 235 the Supreme Court has held as under :

"21. In addition to the above-mentioned reason, the contention advanced by the learned counsel appearing on behalf of the respondents that the appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be ac- cepted as mere mutation of entries does not confer title upon the deceased respondent no.1 in the immovable property. In the case of Sawarni v. Inder Kaur & Ors. [1996 (6) SCC 223], this Court held as under:

"7.......Mutation of a property in the revenue record does not create or extin- guish title nor has it any presumptive value on title. It only enables the person in whose favor mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favors of Inder Kaur conveys title in her favors. This erroneous conclusion has vitiated the entire judgment......"

20. Learned first appellate Court after taking into consideration the evidence in detail has vide para 15 concluded that the defendant is in possession of the plot from the time of his father Bhagchand i.e. prior to the year 1958, which finding being a pure finding of fact and being not perverse, deserves to be accepted. It is also clear that even after getting the name mutated over the suit plot illegally, the plaintiffs did not take

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care to initiate proceeding for dispossession of Bhagchand or Mithailal and came with false and concocted case of relationship of "licensor" and "licensee". As such in the light of provision contained in Section 27 of the Limitation Act, it can be said that the plaintiffs lost their right to seek possession over the suit plot, if any, they had.

21. For the reasons best known to the plaintiffs they have not disclosed the date of judgement passed in civil suit no. 12-A/1943, which could have been helpful in calculating the period of limitation as per the old Limitation Act of 1908. On the contrary it is clear that the plaintiffs have tried to mislead on the basis of order of mutation dtd.14.10.1959 (Ex.P/1). In absence of copy of judgement passed in civil suit no. 12-A/1943, the narration of facts about the verdict of said judgement, mentioned in the order (Ex.P/1) should be believed, which demonstrates that the judgement was only in respect of house no. 286(old) and new no.64 which is constructed on plot no. 34. As such the order of mutation (Ex.P/1) cannot be considered as a piece of evidence with regard to disputed plot no. 77, resultantly this court in the light of provision of order 41 rule 33 CPC, is constrained to hold that the plaintiffs are neither licensor nor owner of the disputed plot no.77 (House).

22. Further, the plaintiffs have not produced any document of title (either the judgement in the civil suit no. 12-A/1943 or any gift deed or will) therefore, by drawing adverse inference, it is also held that the plaintiffs were not in possession of the disputed plot but the defendant

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was in possession of the same from the life time of his father i.e. prior to the year 1958. Although the suit is clearly barred by time, but in the present case, as the plaintiffs are not owner of the disputed plot, therefore, the question of limitation is not of much significance. However, the findings recorded on the aforesaid substantial question of law no. 2 & 3 are pure finding of facts, which are not liable to be interfered with in the limited scope of section 100 CPC.

23. Even according to the plaint allegations and admissions made by the plaintiff 3-Vallabhdas (PW1), the property in question is a house and not an open plot but for the reasons best known to the plaintiffs, they did not file the suit for possession of house but despite knowledge they have alleged it to be an open plot, which even according to the case of plaintiffs pleaded in the plaint, was constructed by the defendant by using the building material provided by the plaintiffs themselves.

24. In view of the aforesaid, the second appeal deserves to be and is hereby dismissed. However, no order as to costs.

(DWARKA DHISH BANSAL) JUDGE pb PRASHANT BAGJILEWALE 2022.09.27 14:29:12 +05'30'

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