Madhya Pradesh High Court
Ashok Kumar S/O Late Shri Sitaram Verma vs Krishna Chand S/O Late Shri Hukum Chand ... on 9 May, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This second appeal has been preferred at the instance of defendant No. 1 against the judgment and decree passed by the trial Court decreeing the suit of plaintiff for declaration and possession which has been affirmed by the first appellate Court by the impugned judgment and decree.
2. In brief the suit of plaintiff/respondent No. 1 is that one Hukum Chand, who is the father of plaintiff was the owner of the suit premises on the basis of registered sale-deed dated 31.7.1941. Initially a plot was purchased and thereafter the house was constructed on it. Thereafter another Plot No. 21/2 was purchased by registered sale-deed dated 6.2.1945 and this plot was re-numbered as Plot No. 21/1. The name of Hukum Chand was also mutated in the Nazul records. A flour mill was installed on the disputed property. Thereafter the father of plaintiff acquired Plot No. 19/2 under a lease dated 17.9.1946 from the Nazul Department. In this manner father of plaintiff became owner and was possessing the entire house and site comprised in Plot Nos. 21/1/, 21/2 and 19/2 together with the structures standing thereon.
3. As per the case of plaintiff in the year 1949-50 the father of plaintiff put one Sitaram (father of defendants) in the possession of house standing on Plot No. 21/2 in which there was firstly a flour mill and subsequently oil crusher. Said Sitaram was inducted as a tenant at the monthly rent of Rs. 10/-. The tenancy was oral and the exact date of tenancy is not known to the plaintiff. It has also been pleaded in para 10 of the plaint that subsequently Plot Nos. 21/1, 21/2 and 19/2 together with the houses standing thereon were allotted to plaintiffs share in the family partition between Hukum Chand and his sons and there was a registered partition deed dated 25.1.1956. Thus, in this manner plaintiff became owner of the disputed property right from 1956 and his name was also mutated in the Nazul records.
4. In the year 1968 plaintiff filed a suit against said Sitaram (father of defendants) under the provisions of M.P. Accommodation Control Act, 1961 on the ground of arrears of rent. This suit was registered as Civil Suit No. 19-A/68, but the same was dismissed vide judgment dated 6.8.1970. In para 12 of the plaint it has been further pleaded that Sitaram denied relationship of landlord and tenant between plaintiff and himself and he also denied title of the plaintiff. The suit was dismissed on account of the validity of the quit notice as well as on the ground that plaintiff failed to establish relationship of landlord and tenant between himself and Sitaram. Since the defendants are making encroachment further, therefore, the present suit has been filed by the, plaintiff for declaration that he is owner of Nazul Plot Nos. 21/1, 21/2 and 19/2. A decree of possession of the suit property has also been sought, description whereof has been mentioned in the map attached to the plaint.
5. The defendant/appellant refuted the plaint averments and in paras 11 and 12 as well as in para 18 of the written statement and specifically pleaded that he is possessing the suit property as owner in the knowledge of the plaintiff for more than 12 years and as such he has acquired ownership right by way of adverse possession. Inter alia on other grounds, it has been prayed that the suit be dismissed.
6. The trial Court framed necessary issues and after recording evidence of the parties decreed the suit of plaintiff.
7. The defendant/appellant feeling aggrieved by the judgment and decree passed by the trial Court, filed first appeal before the appellate Court which has been dismissed by the impugned judgment and decree. Hence this second appeal has been preferred by the defendant No. 1.
8. This Court on 24.2.1995 admitted the second appeal on the following substantial question of law:
Whether the plea of adverse possession raised by the appellant was rejected on erroneous assumption that there is no denial of title in the earlier suit between the parties.
9. I have heard Shri Shashank Verma, learned Counsel for the appellant and Shri A.G. Dhande, learned Sr. Advocate assisted by Shri Pramod Thakre, Advocate for the respondents. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed and the matter is required to be sent back to the first appellate Court.
10. In order to appreciate the contention of learned Counsel for the appellant on the substantial question of law which has been framed, it would be appropriate to mention that admittedly the defendants are possessing the suit property w.e.f. 1948 from the time of their father Sitaram. It is no more in dispute that Sitaram breathed his last. The earlier suit which was based on relationship of landlord and tenant, was filed by present plaintiff against Sitaram (father of defendants). It would be apposite to see written statement which was filed by deferent Sitaram in earlier suit (Civil Suit No. 19-A/68). On bare perusal of the written statement (Ex.P-30) filed by Sitaram in that suit and particularly para 2(a) wherein it has been specifically pleaded by Sitaram (father of defendants) that for more than 20 years the defendants are adversely exercising their possession over the house in suit. They had even repudiated the title of plaintiff's father Hukumchand as a landlord of the house. For better understanding it would be germane to quote para 2(a) of the written statement (Ex.P-30) which reads thus:
2(a) From para 2(a) of the plaint it is denied that any notice was given to this defendant about the plaintiffs ownership of the house. It is for more than 20 years that the defendants are adversely exercising their possession over the house in suit. They had even repudiated the title of plaintiffs father Hukunchand as a landlord of the house.
On bare perusal of above-said paragraph it is as clear like a noon day that in the written statement which was filed by Sitaram in June, 1968 it has been specifically pleaded that he (Sitaram) is possessing the suit property adversely to the rights of the plaintiffs father Hukum Chand. The relationship of landlord and tenant has been specifically dented in the written statement Sitaram (father of defendants) has clearly pleaded that he is possessing the suit property adversely exercising possession over the suit house.
11. Indeed, learned first appellate Court by ignoring this material document (written statement Ex.P-30) has passed the impugned judgment and decree only by marshaling oral evidence placed on record. As a matter of fact, this document ought to have been tested on the anvil of the statements made by the parties and their witnesses. The learned first appellate Court was duty bound to examine this document particularly when the plea of 'adverse possession' has been set-up by the defendants and in support of their defence this document was filed and proved by them. The authenticity of the written statement has not at all been denied by the plaintiff. Indeed, he (plaintiff) himself in para 12 has pleaded about the written statement filed by Sitaram (father of defendants).
12. Since this document (Ex.P-30) has been totally ignored by the learned first appellate Court and dismissed the appeal of the defendants, I am of the view that judgment and decree passed by it cannot be allowed to remain stand and the same deserves to be set aside and the case is required to be sent back to the first appellate Court to re-decide the appeal after hearing the parties.
13. In the result this appeal succeeds and is hereby allowed. The judgment and decree passed by learned first appellate Court is hereby set aside and the first appellate Court is hereby directed to re-decide the appeal by taking into consideration Ex.P-30 which is written statement filed by Sitaram (father of defendants) in the earlier suit. Looking to the facts and circumstances, the parties are directed to bear their own costs.