Madhya Pradesh High Court
Zamindar Dharmik & Shekshnik Nyas vs Siddhanath on 8 July, 2019
Equivalent citations: AIR 2019 MADHYA PRADESH 211, AIRONLINE 2019 MP 840
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
SECOND APPEAL No.191/99
ZAMINDAR DHARMIK & SHEKSHNIK NYAS, INDORE THROUGH ITS
TRUSTEES
Vs.
SIDDHANATH S/O BHAGIRATH DECEASED THROUGH HIS LEGAL
REPRESENTATIVES
********
Shri A.K.Sethi, Senior Advocate with Shri Harish
Joshi, Advocate for the appellant.
Shri B.L.Pavecha, Senior Advocate with Shri Nitin
Phadke, Advocate for the respondents.
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JUDGMENT
(Delivered on 08.07.2019) Appellant/defendant No.3 has filed the present second appeal being aggrieved by the judgment dated 30.01.1999 passed by IIIrd Additional District Judge, Indore in First Appeal No.03/97 affirming the judgment and decree dated 31.01.1997 in favour of plaintiff passed in Civil Suit No.113-A/94 by Vth Civil Judge, Class-II, Indore.
2. By order dated 05.08.1999, this Court had dismissed the second appeal. Thereafter, defendant No.3/appellant filed Civil Appeal No.5835/2000 before the Hon'ble Supreme Court of India. Vide judgment dated 22.05.2007, by allowing the Civil Appeal the Supreme Court has remitted the second appeal back to the High Court for deciding on the following substantial questions of law:
(1) Whether the plaintiff's claim could be decreed without there being any challenge to the decision of the Revenue Authorities for restoration of possession to the appellant?
(2) Whether the learned Courts below are right in accepting the plaintiff's claim of possession in his own right or adverse possession?
(3) Whether the suit of the plaintiff was maintainable in view of the dismissal under Or.XI R.21 of his earlier Suit No.359/81?
3. At the very outset Shri A.K. Sethi, learned Senior Counsel for the appellant submits that he is not pressing this appeal on the question No.1.
The facts of the case which led to this second appeal are as under:
4. Late Siddhanath being a plaintiff ( since dead now represented through legal heirs) filed the civil suit claiming declaration of title and permanent injunction against the Collector, Indore and Additional Naib Tehsildar, Indore in respect of Government Charnoi agricultural land bearing survey No.1488/1, area 3.23 acres of Gram Tejpurgadbadi, Indore (hereinafter referred to as 'the suit land'). During the pendency of the suit, the present appellant viz. Zamindar Dharmik and Shekshnik Trust filed an application under Order 1 Rule 10 CPC and became the party in the suit as defendant No.3 (hereinafter referred to as 'the defendant No.3).
(i) According to the plaintiff he is in possession over the suit property since 1945. He obtained the electricity connection , installed motor pump set and dug a well in it. His possession was in the knowledge of the general public and the Government as well. He got his name recorded in the Khasra Panchshala. He got constructed the house which is also recorded in the record of Municipal Corporation, Indore. The Additional Tehsildar, Indore registered a Revenue Case No.449/A-68/1967-68 in respect of encroachment over the suit land. Vide order dated 04.09.1969,a direction was issued to Trusty Ram Nihalkaran Zamindar to vacate the suit land and fine was also imposed. The defendant No.3 filed an application under section 57 of the M.P. Land Revenue Code before the Sub Divisional Officer, for adjudication of right and title of the Trust. By order dated 19.09.1974 the Sub Divisional Officer has decided the title of the appellant and directed for recording its name in the revenue records and accordingly it became property belonging to defendant no.3/appellant .
(ii) The order of Sub Divisional Officer dated 19.09.1974 was not brought to the knowledge of the Tehsildar and vide order dated 12.06.1975 the defendant No.3 Trust had been dispossessed from the possession. At that point of time, the land was on lease to plaintiff Siddhanath hence; he signed the Panchnama in respect of the dispossession.
(iii) Being aggrieved by the order of Sub Divisional Officer dated 19.09.1974, the Plaintiff filed an appeal on 31.12.1975 before the S.D.O which was dismissed vide order dated 03.05.1977 as time barred. Thereafter, he filed revision before Additional Commissioner and then to Board of Revenue but both were dismissed .
(iv) Thereafter the Plaintiff filed civil suit No.259-A/81 on 21.12.1981 against the Government seeking declaration of title on the basis of adverse possession and permanent injunction for protection of his possession. The plaintiff claimed the declaration of title on the basis of adverse possession since 1945. The plaintiff has placed reliance over the order of Naib Tehsildar dated 27.05.1982 in which his possession was found since 1950.
(v) Defendants No.1 & 2 filed the written statement. Vide order dated 17.08.1983 the Civil Judge, Class-II dismissed the suit under the provisions of Order 11 Rule 21 of the Code of Civil procedure, Act V of 1908 as plaintiff failed to produced certain documents .
(vi) After dismissal of the aforesaid suit, plaintiff filed the present civil suit before Civil Judge, Class-II, Indore seeking the same relief of declaration of title and permanent injunction against defendants No.1 & 2. . The defendants No.1 & 2 filed the written statement denying the title but admitted the possession of the plaintiff.
(vii) Later on, the appellant/defendant No.3 filed an application under Order 1 Rule 10 CPC seeking its impledment in the suit and the same was allowed by the civil Court . Defendant No.3 also filed the written statement denying the title as well as the possession of the plaintiff. The defendant No.3 submitted that in execution of the order dated 04.09.1969, the Government authorities took possession of the land on 12.06.1975. Thereafter, again the order of possession dated 21.07.1975 was passed. Meanwhile, Siddhanath with the collusion of the employees of the Tehsildar got prepared false Panchnama dated 31.08.1975 showing him as the owner but his appeal as well as revision both has been dismissed. The plaintiff has filed the suit suppressing the dismissal of earlier suit vide order dated 17.08.1983, hence the suit is not maintainable.
(viii) Learned trial Court framed six issues for adjudication. After appreciating the evidence came on record vide judgment and decree dated 03.01.1997 the suit has been decreed in favour of the plaintiff by declaring him the owner of the suit land and the defendants were restrained to dispossess and alienate the suit property.
(ix) Being aggrieved by the aforesaid judgment and decree the defendant No.3 preferred a first appeal No.03/97. Vide judgment dated 30.01.1999 the first appellate Court has dismissed the appeal and affirmed the judgment and decree.
(x) Against the order passed by the first appellate Court a second appeal was filed and that too was dismissed vide order dated 05.08.1999 without framing any substantial question of law. Against the order dated 05.08.1999 the appellant/defendant No.3 filed a Civil Appeal before the Hon'ble Supreme Court and the Apex Court vide order dated 22.05.2007 has allowed the appeal and remanded the matter back to the High Court for hearing on the substantial questions of law as mentioned above.
5. Shri A.K. Sethi, learned Senior Counsel appearing for the defendant/appellant submits that both the Courts below have wrongly granted the decree of title on the basis of adverse possession which is contrary to the law laid down by the Apex Court in the case of Gurudwara Sahib vs. Gram Panchayat Village Sirthala & another reported in (2014) 1 SCC 689, therefore, the judgment and decree is unsustainable in law and liable to be set aside. He further submitted that so far as the question No.3 is concerned, the subsequent suit is not maintainable in view of Sub Rule (2) of Rule 21 of Order 11 of the CPC. Both the suits were filed for the declaration of title and permanent injunction of the same suit land against the State Government. In view of the specific bar under Sub Rule (2) of Rule 21 the second suit is not maintainable. Learned Civil Judge has wrongly decided the issue applying the principle of section 11 CPC i.e. res judicata, hence the appeal is liable to be allowed.
6. Shri B.L. Pavecha, learned Senior Counsel appearing for the respondents /plaintiff argued in respect of substantial question of law No.2 that both the Courts below upon proper appreciation of the oral and documentary evidence came on record have recorded concurrent findings of facts to the effect that the plaintiff/respondent is in adverse possession of the suit land for more than 12 years and perfected the title of the suit land. The concurrent finding of fact recorded by the Courts below on both the aforesaid aspects are based on proper appreciation of the evidence and does not call for interference in second appeal filed under section 100 CPC. No question regarding factual possession of the plaintiff has been raised or framed. Even if the suit for relief of declaration is held to be not maintainable in view of the law laid down by the Hon'ble Supreme Court in the case of Gurudwara Saheb (supra), the decree for permanent injunction granted in favour of the plaintiff/respondent deserves to be upheld in view of the concurrent findings recorded by the Courts below regarding settled and peaceful possession of the plaintiff/respondent over the suit land. This course was adopted by the Apex Court in the aforesaid case of Gurudwara Saheb also. It is settled law that even a true owner cannot be allowed to forcibly dispossess a person in settled possession. That even according to Gurudwara Saheb's judgment the respondents would be entitled to raise the defence of adverse possession in a suit which may be filed by the appellant/defendant for recovery of possession. In the present case it would be negation of rule of law to reject the claim for declaration of title as not maintainable in law and to refuse injunction against forcible dispossession of the suit property also leaving the appellants/defendants free to have recourse to violence or breach of law in view of the law laid down in the case of Rame Gowda vs. Varadappa (2004) (1) SCC 769 and Shavaram @ Seva vs. Dhapubai & others AIR 2006 MP 142. The injunction granted by the Courts below restraining dispossession otherwise than in due course of law of the plaintiff, therefore, deserves to be upheld.
7. Shri Pavecha learned senior counsel further argued in respect of substantial question of No.3 that a subsequent suit cannot be dismissed on the ground of bar of order 11 Rule 21 CPC if it is based on a cause of action different from pleaded in the earlier suit. Moreover, a copy of the plaint filed in previous suit was not filed by the appellants in the trial. The present suit was filed against the State only and the present appellants were who joined as parties under Order I Rule 10 CPC on their own application. The previous suit has been filed only against the appellant claiming relief of declaration and permanent injunction regarding forcible dispossession. The previous suit and the present suit are based on different cause of actions. For applicability of the bar of Order 11 rule 21 CPC it was necessary for the appellant to establish the identity of the "cause of action" in both the suits. However, even the plaint of the previous suit was not placed on record by the appellant/defendant before the Court below and the appellant/defendant has altogether failed to substantiate the applicability of bar provided in Order 11 Rule 21 CPC. The question regarding identity of cause of action, he has placed reliance over the judgment of Hon'ble Apex Court in the case of Rathnavathi vs. Kavita (2015) 5 SCC 223 in the context of Order 11 Rule 21 The Code of Civil procedure,Act V of 1908 hence prayed for dismissal of appeal.
Findings on Issue No.2:
8. Admittedly, the plaintiff filed the suit seeking declaration of title on the basis of adverse possession since 1945. The possession of the plaintiff is not in dispute over the suit land but the issue perfecting title of the plaintiff based on adverse possession is no more res intigra after the verdict given the case of Gurudwara Sahib (supra) .It has been held that even if the plaintiff is found to be in permissive possession, he cannot seek a declaration to the effect that such adverse possession has matured into ownership. He can use the same as a defence in a proceeding, initiated by the defendant. The operative part of the aforesaid order is reproduced below:
"7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as a defendant that it can use this adverse possession as a shield/ defence."
9. The aforesaid judgment has been further followed in a recent judgment of Apex court in case of State of Uttarakhand & Another Vs. Mandir Sri Laxman Sidh Maharaj : (2017) 9 SCC
579. Relevant portion of the aforesaid judgment is reproduced below:
"By no stretch of imagination, in our view, such a declaration of ownership over the suit property and right of easement over a well could be granted by the Trial Court in plaintiff's favour because even the plaintiff did not claim title in the suit property on the strength of "adverse possession".
Neither there were any pleadings nor any issue much less evidence to prove the adverse possession on land and for grant of any easementry right over the well. The Courts below should have seen that no declaration of ownership rights over the suit property could be granted to the plaintiff on the strength of "adverse possession" (see Gurdwara Sahib vs. Gram Panchayat Village Sirthala & Anr., (2014) 1 SCC
669. The Courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief. This principle is fully applied to the facts of this case against the plaintiff. "
10. In view of the above, the judgment & decree of title on the basis of adverse possession is unsustainable and liable to be set aside and is hereby set aside.
Finding on Issue No.3:
11. Shri B.L.Pavecha, learned Senior Counsel appearing for the respondent/plaintiff has argued that the subsequent suit cannot be dismissed on the ground of bar of Order 11 Rule 21 CPC if it is based on cause of action different from pleaded in the earlier suit.
The copy of the plaint of previous suit is not on record, therefore, it cannot be decided that the cause of action for filing both suits were the same. Though the issue was not framed on this objection taken by the defendant No.3 but the learned Civil Judge has considered this issue and rejected the same by applying the principal of res judicata. The learned Civil Judge has held that earlier the suit was not decided on merit but dismissed under Order 11 Rule 21 CPC, therefore, the second suit is maintainable. The certified copy of the civil suit No.359-A/81 and the order dated 17.08.1983 were filed along with the list of additional documents and they were taken on record. Learned trial Court has failed to examined the provisions of Sub Rule (2) of Rule 21 and 11 which specifically prohibit filing of subsequent suit for the same cause of action. Order11 rule 21 is reproduce below:-
21.Non-compliance with order for discovery.-- (1) Where any party fails to com-
ply with any order to answer interrogatories, or for discovery or inspection of docu- ments, he shall, if a plaintiff, be liable to have his suit dismissed or want of prosecu- tion, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking dis- covery or inspection may apply to the Court for an order to that effect, and 2[an order may be made on such application accordingly, after notice to the parties and after giv- ing them a reasonable opportunity of being heard].
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
The cause of action for filing both the suits is the same. Earlier also the plaintiff filed the suit after dismissal of his appeal and revision as time barred by the appellate and revisional revenue authorities. In the earlier suit also he claimed the title and permanent injunction against the State Govt. in respect of the suit land. In subsequent suit also he claimed the same relief against the State Government for the same land without impleading the defendant No.3 as party to the suit. The cause of action accrued in favour of the plaintiff for filing both the suits when the Tehsildar issued notice for eviction and the S.D.O passed the order for mutation of the name of defendant No.3 in respect of the suit land, therefore, both the suits were filed for the same cause of action, hence the provisions of Order 11 Rule 21 CPC would certainly apply. This Court in the case of Indore Development Authority, Indore vs. Satyapal Anand and another reported in 2000 (2) MPLJ 229 has held that the provisions of Order 11 rule 21 of CPC are not only important but have a mandatory effect in the course of trial ,the Court is having power to punish such party who fails to discover the document for inspection. Once the suit has been dismissed under Order 11 Rule 21 CPC then by virtue of Sub Rule (2) the plaintiff is debarred to file a fresh suit. Hence, question of law No.3 is answered in favour of appellant/defendant and the second suit filed by the plaintiff is not maintainable.
12. Shri Pavecha, learned Senior Counsel for the respondents/plaintiff submits that even according to the Gurudwara Sahid judgment (supra) the respondent would be entitled to raise the defence of adverse possession in a suit which may be filed by the appellant/defendant for recovery of possession. The respondent is in settled possession and even the true owner cannot be allowed to forcibly dispossess him. The Apex Court in the case of Rama Gowda (supra) and this Court in the case of Shavaram @ Seva (supra) have held that the plaintiff even after dismissal of the suit of title is entitled to retain the possession unless he is evicted under the due process of law, therefore, part of the decree which grants permanent injunction to the plaintiff is liable to be maintained.
13. The plaintiff filed the suit seeking decree for declaration of title as well as permanent injunction on the basis of title. Though he could succeeded to prove his title by way of adverse possession but as held above the decree is not sustainable due non non- maintainability of the suit. Thereafter he has also been granted the decree of permanent injunction because he was declared Bhumiswami of the suit land. Once it has been held that the subsequent suit is not maintainable, therefore, any relief granted in it cannot be maintained in the second appeal.
14. Even otherwise, the plaintiff filed the suit seeking declaration of title and permanent injunction when the revenue authorities passed the order of dispossession. There is already an order dated 04.09.1969 passed by the defendant No.2 in revenue case No.449/A/67-68 . Thereafter, the defendant No.3 approached the S.D.O and vide order dated 19.09.1974 the suit property has been declared as Trust property but the Tehsildar took possession on 12.06.1975. The plaintiff filed an appeal and revision against the order dated 19.09.1974 and both have been dismissed. There is already an order of eviction by the Tehsildar in respect of the suit property. The order passed by the S.D.O in favour of defendant No.3 has already attained finality, therefore, now the said order dated 04.09.1969 is liable to be executed which was passed after following due process of law. The parties are under litigation since 1969 and more than 49 years have been passed. At this stage, the defendant No.3 cannot be relegated to file a fresh civil suit only for the purpose of obtaining possession from the plaintiff, therefore, now the plaintiff is required to hand over possession peacefully to the defendant No.3.
15. Even otherwise the Hon'ble apex court vide order dated 22.05.2007 did not remand the this appeal on the issue of protection of long possession of the plaintiff . The apex court has only directed this court to adjudicate only three issues as mention above .
The apex court in its recent decision passed in case of Poona Ram Vs Moti Ram [ Civil Appeal No.4527/2009 decided on 29.01.2019] has held that settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner .The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case, hence he apex court has dismissed the suit filed for declaration of title on the basis of long possession
16. Hence, the appeal is allowed. The judgment and decree dated 31.01.1997 and appellate order dated 30.01.1999 are hereby set aside and the suit is dismissed. Decree be drawn accordingly.
(VIVEK RUSIA) JUDGE Digitally signed by Hari Kumar Nair hk/ Date: 2019.07.09 16:47:45 +05'30'