Madhya Pradesh High Court
Smt.Hussain Begum And Others vs Rafique Khan And Others on 14 February, 2018
-( 1 )- Second Appeal No.97/2000
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Vivek Agarwal, J.)
Second Appeal No.97/2000
.....Appellants : Smt. Hussain Begam & Ors.
Versus
.....Respondents : Rafique Khan & Ors.
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Shri Santosh Agrawal, learned counsel for the appellants.
Shri Prashant Sharma, learned counsel for respondents No.1 to
4.
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JUDGMENT
(14/2/2018) This second appeal has been filed by the appellants/plaintiffs being aggrieved by judgment and decree dated 18.11.1999 passed by the Court of Additional District Judge, Sironj, Distt. Vidisha, in Civil Appeal No.13-A/1997 confirming the judgment and decree dated 24.4.1990 passed by the Civil Judge, Class I, Sironj, Distt. Vidisha, in civil suit No.5- A/1983.
2. Brief facts leading to the present appeal are that plaintiffs had filed a suit claiming that their ancestors had purchased the suit property contained in survey No.1592 (old No.1765) from the custodian of evacuee property measuring 3 Beegha, 10 Biswa or 0.885 hectares vide another proceedings which took place on 30.10.1967. This land was earlier that of Gul Mohammad Khan and Sikandar Khan sons of Gulam Akbar Khan, but because they migrated to Pakistan, Government of India had acquired it under the Custodian Department and said land was in possession of the Custodian Department till 31.10.1967. On 31.10.1967 ancestors of the plaintiffs had purchased the said property in auction by
-( 2 )- Second Appeal No.97/2000 paying a consideration of Rs.2,450/- and obtained sale certificate. According to the plaintiffs, on 28.4.1968 Patwari of Sironj handed over possession of the suit land in favour of the plaintiffs. Thereafter, suit was filed claiming a relief that name of the defendants recorded in the revenue records as Adhipati Krishak be declared as null and void and if the Court does not think that plaintiffs are in possession, then they be granted possession of the said land and defendants be restrained by issuance of a decree of permanent injunction not to interfere in the peaceful possession of the plaintiffs.
3. Learned counsel for the appellants submits that in fact this case was earlier decided vide judgment dated 29.6.2017 but this Court had failed to take into consideration the substantial questions of law which were framed earlier and on which appeal was admitted and treated it to be a case argued for admission, and therefore, a review petition No.458/2017 was filed which was allowed vide order dated 28.7.2017 accepting the mistake that since the appeal was admitted it was required to be heard finally and each of the substantial questions of law which were framed at the time of hearing is to be considered, evidence is to be appreciated and answered.
4. On 4.7.2007 this Court had framed following substantial questions of law, namely :-
(i) "Whether the civil court has jurisdiction to declare that the property was not declared as Evaque property in spite of the fact that the said proceedings were not challenged and said finding is not hit by the provisions of Section 46 of the Evaque Property Act ?"
(ii) "Whether the said certificate issued by the Custodian Department after auction and possession given by Patwari of Revenue Department after auction by the Custodian are not sufficient to hold that the plaintiff is owner of the disputed land and plaintiff is in possession ?
(iii) "Whether the finding the defendant has perfected title by adverse possession is sustainable in law when the defendant's name is not entered in the revenue
-( 3 )- Second Appeal No.97/2000 papers ?"
5. Learned counsel for the appellants submits that as per Section 8 of the Administration of Evacuee Property Act, 1950 any property declared to be evacuee property under Section 7 shall be deemed to have vested in the custodian for the State - (a) in the case of the property of an evacuee as defined in sub-clause
(i) of clause (d) of section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India; (b) in the case of the property of an evacuee as defined in sub-clause (ii) of clause (d) of section 2, from the 15th day of August, 1947; and (c) in the case of any other property, from the date of the notice given under sub-section (1) of section 7 in respect thereof. Therefore, there is no question of defendants being in possession of the suit property and it cannot be stated that they perfected their title by virtue of adverse possession. He submits that the principles of adverse possession will not be applicable in the present case inasmuch as the defendants are required to acknowledge the ownership of the plaintiffs, then only the limitation for adverse possession will commence. He further submits that as per sub-section 4 of Section 8 where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorized by him in this behalf. In view of such submissions, it is prayed that the plea of adverse possession of the defendants over the suit property or the defendants had perfected title on the suit property by virtue of their names being recorded in the revenue records does not arise. Learned counsel has placed reliance on the judgment of this Court in the case of Rameshwar Prasad vs. Municipal Corporation, Sagar as reported in 1992 M.P.L.J. 764 and submits that once a property was declared as evacuee property, then civil Court had lost jurisdiction in the matter and the suit was
-( 4 )- Second Appeal No.97/2000 not maintainable. He has specifically drawn attention of this Court to para 9, 10 and 13. In para 9 brief facts of the case have been discussed and it has been noted that as far as question No.(i) is concerned as to whether the property was earlier an evacuee property or not, the plaintiff placed on record sale-deed (Ex.P/1) and has examined one Mr. T.R.Khanna (PW-1) from the Rehabilitation Department, who had identified and proved the signatures of the Managing Officer on Ex.P/1. He admitted that the property shown in Ex.P/1 was sold to the Municipal Council Sagar and the conveyance deed was executed after receipt of full payment. It has also come on record that this witness was not cross-examined by the defendant/appellant and the statement made by Mr. T.R.Khanna was never challenged that the property was sold in favour of Municipal Council Sagar. In para 10 it has been noted that from the statements of appellant and his witnesses, the theory of adverse possession is destroyed inasmuch as appellant in his statement before the trial Court had stated that disputed house belongs to him and he is living therein since the days of his father and the custodian department was not in its possession.
6. Placing reliance on para 13 of the judgment in the case of Rameshwar Prasad (supra) learned counsel for the appellants submits that defendants could not have put forth the claim unless they had challenged the orders passed by the custodian declaring the property to be an evacuee property by filing appeal and revisions against such order and since there was no challenge to the order declaring the property to be evacuee property, the defendants could not have claimed possession over the property and could not have been proved to be in adverse possession of the property, thus, perfecting the title over the suit land.
7. Learned counsel for the appellants has also placed reliance on the judgment of the Supreme Court in the case of T. Anjanappa and others vs. Somalingappa and Anr. as reported in (2006) 7 SCC 570 which says that possession must be hostile,
-( 5 )- Second Appeal No.97/2000 in denial, either express or implied, of title of the real owner. For that it is essential that possessor must clearly know the actual owner of the property, only then can be situation of being in hostile possession and question of denying title of true owner would arise. Placing reliance on this judgment, learned counsel for the appellants submits that since defendants have not acknowledged the title of the plaintiffs/appellants, therefore, there is no question of any adverse possession. He has also placed reliance on the judgment of the Supreme Court in the case of Vasantiben Prahladji Nayak and others Vs. Somnath Muljibhai Nayak and others as reported in (2004) 3 SCC 376 wherein the ratio is that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendants' possession became adverse in the light of the provisions contained in Article 65 of the Limitation Act. Learned counsel for the appellants has drawn attention of this Court to para 7 wherein argument was raised on behalf of the appellant that respondents have failed to prove the ouster alongwith three circumstances, namely hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner. He submits that since these three ingredients/circumstances have not been proved by the defendants, therefore, they are not entitled to claim title by way of adverse possession in the suit property.
8. Learned counsel for the defendants took a plea that their forefathers were in possession of the land prior to 1957 and their ancestors from whom the land was transferred never migrated to Pakistan but had died in Hyderabad, and therefore, the property as acquired is not in the nature of evacuee property. It is submitted that the defendants are in possession and their possession has not been disturbed, therefore, they have perfected their title by virtue of their possession since 1957 on the doctrine of adverse possession. It is also submitted that plaintiffs
-( 6 )- Second Appeal No.97/2000 were required to prove that the property in question was acquired by the Custodian Department of Government of India, but such acquisition by the custodian has not been proved by the plaintiffs. It is further submitted that defendants had produced entries from the revenue record in support of their claim as has been discussed by the first appellate Court in para 34 wherein it has been held that actual possession on the suit land since Samvat 2014-15 to the year 1979-80 was that of Kallu Khan and on the basis of such findings the first appellate Court recorded adverse possession of Kallu Khan on the suit land. Plaintiffs contention has been that they were in possession of the land and land was purchased by them in auction but possession of the plaintiffs is belied by the revenue entries which speak otherwise, and therefore, presumption under Section 117 of the MPLRC will go in favour of the defendants rather than the plaintiffs.
9. In the present case, defendants had proved their adverse possession by virtue of Khasra entries in which their names were recorded continuously. There is no evidence on record to show as to on which date plaintiffs had taken possession from the custodian of evacuee property. Since plaintiffs have failed to discharge their onus and produce proof of possession of the suit property and admittedly filed the suit after lapse of more than 12 years time frame prescribed under the Limitation Act after so called purchase of the suit property from the custodian of evacuee property, the plaint as well as first appeal have been rightly dismissed inasmuch as the first appellate Court has only reversed the findings of the trial Court that sale certificate and proceedings of the custodian can be challenged in the civil Court, however, the first appellate Court has affirmed the finding of the trial Court where it has held that plaintiffs have failed to prove that they are owner and possessor of the suit property. Trial Court has further held that entries in the revenue record made in favour of defendants as Adhipati Krishak are not null and void in relation to the plaintiffs. It further held that issue No.3 that defendant wants
-( 7 )- Second Appeal No.97/2000 to forcefully take possession of the plaintiffs' land has not been proved. Thus, since there is no finding of the civil Court that property in question was not a evacuee property, therefore, first substantial question of law needs to be answered against the plaintiffs in view of para 24 of the judgment passed by the first appellate Court in which the judgment of the trial Court merged.
As far as the law laid down in the case of Rameshwar Prasad (supra) is concerned, the same is not relevant to the facts and circumstances of the case inasmuch as the ratio is that in case of a declared evacuee property, civil Court has no jurisdiction in the matter i.e. civil Court has no jurisdiction to set aside the notification of the property being declared as evacuee property. It is further held that any person in possession thereof shall be deemed to be holding it on behalf of the custodian and shall on demand surrender possession of it to the custodian or to any person duly authorized in this behalf. Therefore, in the light of the findings recorded by the first appellate Court there is no dispute that first appellate Court has already reversed the finding of the trial Court refusing to acknowledge the suit property as evacuee property. As far as the aspect of surrender of possession to the custodian or any person duly authorized by him in this behalf is concerned, in the present case admittedly custodian never demanded possession and as per Patwari, defendants were never evicted from the suit property, therefore, ratio of the law laid down in the case of Rameshwar Prasad (supra) is not helpful to the plaintiffs. Further the submission of the appellants that in the light of the judgment passed in the case of Rameshwar Prasad (supra) the defendants could not have put any claim to the property unless and until they would have filed appeal and revision against the notification is concerned, that is not the requirement for staking claim on the principles of the adverse possession.
10. As far as second substantial question of law in regard to the certificate issued by the custodian department and
-( 8 )- Second Appeal No.97/2000 possession given by Patwari is concerned, sale certificate given by the custodian department has not been challenged. But as far as the statement of Patwari (PW-3) is concerned, he has admitted in his cross-examination that he stood retired in the year 1977. The statement given by him in his examination-in-chief that he had given possession to Ahmad Shah has been made on the basis of memory and he is not in possession of either any possession receipt or Panchnama. He has further admitted in para 6 that he has no knowledge as to when this land got vested in the custodian department. He further admitted that he had never dispossessed Kallu Khan from the suit land. Though Ramswaroop (PW-2) has deposed that possession of the suit land was handed over to the plaintiffs in his presence, but Patwari Jakir Hussain has not mentioned in his statement about presence of Ramswaroop, therefore, when statement of Patwari, who allegedly handed over possession, is on record not showing presence of Ramswaroop, the statement of Ramswaroop loses its relevancy. In view of such facts being on record and also the fact that plaintiffs had not produced any copy of either possession receipt or Kabja Panchnama before the trial Court, second substantial question of law is also not proved that plaintiffs were ever put in possession of the suit land. In fact, Ex.P/5 produced by the plaintiffs is the order of Tahsildar directing revenue inspector to hand over possession of the suit property but no material was produced on record to show that either revenue inspector had directed Patwari or had himself handed over possession of the suit property in favour of the plaintiffs. Therefore, there is no reliable evidence to show that after purchase of the suit property in auction on 31.10.1967, plaintiffs were ever put in possession of the suit property.
11. As far as third substantial question of law is concerned, trial Court has recorded a finding that defendants had obtained suit land on lease and had perfected the title by adverse possession. Trial Court has discussed that defendants' possession over the
-( 9 )- Second Appeal No.97/2000 suit land has been shown as Adhipati Krishan in the revenue entries for the year 1977-78, 1978-79, 1979-80. Though in the entry for the year 1979-80 defendants have been shown as Gair Kabij but in Ex.D/3 which are revenue entries from Samvat 2014- 15 to Samvat 2019 defendants have been shown as a Kabij Krishak. Similarly from the year 1957-58 to 1960 and then 1971- 72, 1977-78 to 1979-80 defendants were shown as Adhipati Krishak, therefore, presumption has been drawn about their continuous adverse possession. Accordingly, a finding has been recorded that defendants are in adverse possession for a continuous period of 23 years, therefore, before dispossessing them a notice was mandatory. As the Patwari, who has been examined by the plaintiffs, himself admitted that he had neither dispossessed the defendants nor any notice was served on the defendants, finding recorded by the Court below cannot be faulted with. In fact in para 30, learned first appellate Court has categorically referred to case No.109/69 under Section 145 Cr.P.C. in which an order was passed on 29.12.1969, Ex.D/2, by the Sub-Division Magistrate, Sironj, holding that on the suit land actual possession was that of Kallu Khan. No document was produced on record to show that plaintiff Ahmad Shah had filed any revision challenging the said order of SDM dated 29.12.1969. Ahmad Shah (PW-1) in para 10 of his cross-examination admitted that such proceedings before the SDM were undertaken but could not prove his possession over the suit land.
As far as law laid down in the case of T.Anjanappa (supra) is concerned since defendants had acknowledged the title of the plaintiffs/appellants, therefore, there is no question of adverse possession. In fact in the case of T.Anjanappa (supra) the Supreme Court has held that if the possessor was not sure whether plaintiff or the Government was the true owner of the property, then claim of adverse possession is not maintainable, but in the light of the law laid down in the case of Rameshwar Prasad (supra) placing reliance on the judgment of the Supreme
-( 10 )- Second Appeal No.97/2000 Court in the case of H.Ismail vs. Competent Officer, Lucknow and others, AIR 1967 SC 1244 and also in the light of the provisions of Section 7(4) of the Evacuee Property Act when any person in possession thereof is to be deemed to be holding it on behalf of the custodian and who shall on demand surrender possession of it to the custodian or to any other person duly authorized by him in this behalf, then the ambiguity of not knowing the true owner of the property as has been held in the case T.Anjanappa (supra) is not available in the present case inasmuch as it was open to the custodian to have sought eviction before auction of the property or after auctioning the property and put plaintiffs into possession. In this case, defendants were clearly knowing the fact that the property was vested in the custodian and if without giving them any notice, property was auctioned and then for long 12 years no steps were taken to obtain physical possession of the property and suit was filed after 12 years, then it cannot be said that the defendants/possessor were not sure who was the true owner of the property, therefore, ratio in the case of T.Anjanappa (supra) is also not applicable to the facts and circumstances of the present case.
As far as law laid down in the case of Vasantiben Prahladji Nayak (supra) is concerned, the ratio of the law is that in case of partition each co- sharer has an antecedent title and therefore there is no conferment of a new title and Article 65 Explanation (a) has no application to such a case, which is also not applicable to the facts and circumstances of the case and in view of the evidence which has come on record, plaintiffs had failed to take steps to claim possession of the property in time, and therefore, it cannot be said that defendants' possession had not become adverse inasmuch as plaintiffs were only claiming through the custodian and custodian never sought eviction of the defendants before transferring the right in the property in favour of the plaintiffs.
12. Learned Courts below have admitted that after issuance of
-( 11 )- Second Appeal No.97/2000 sale certificate onus was on the plaintiffs to prove that they had received possession of the suit property but both Ramswaroop and Jakir Hussain admitted that Kallu Khan was never dispossessed from the suit land, and therefore, looking to the fact that Kallu Khan had possession over the suit land since 1957 and such possession continued even after purchase in auction by the plaintiffs on 31.10.1967, he perfected his title on 31.10.1979, whereas the suit was filed by the plaintiffs on 15.3.1980, and therefore, the Courts below have rightly recorded a finding that defendants had perfected their title on the suit land through adverse possession. This finding gets support from the fact that when plaintiffs purchased the property in auction they must have verified its status and they were aware of possession of Kallu Khan over the suit land but they never took any steps to oust him from the suit property, thus, acknowledging his possession.
13. In view of the aforesaid discussion, none of the substantial questions of law framed by the Court while admitting the appeal is proved through the evidence on record, and therefore, the appeal fails and is dismissed.
(Vivek Agarwal) Judge ms/-
Digitally signed by MADHU SOODAN PRASAD Date: 2018.05.15 16:55:10 +05'30'