Madhya Pradesh High Court
Jagdish vs Devkaran on 29 April, 2022
Author: Anil Verma
Bench: Anil Verma
1 SECOND APPEAL No. 584 of 2021
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 29th OF APRIL, 2022
SECOND APPEAL No. 584 of 2021
Between:-
JAGDISH S/O RAMSINGH , AGED ABOUT 33 YEARS,
OCCUPATION: AGRICULTURE VILLAGE PANCHOLI, TEHSIL
BADNAGAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ANUJ BHARGAV, ADVOCATE )
AND
DEVKARAN S/O LATE SHRI MANGILAL , AGED ABOUT 32
1. YEARS, VILLAGE PANCHOLI, TEHSIL MHOW INDORE
(MADHYA PRADESH)
KANTABAI W/O LATE MANGILAL , AGED ABOUT 35 YEARS,
2.
VILLAGE PANCHOLI, TEH. MHOW (MADHYA PRADESH)
RESHMABAI W/O MANGILAL , AGED ABOUT 56 YEARS,
3.
VILLAGE PANCHOLI, TEH. MHOW (MADHYA PRADESH)
STATE OF M.P. THR. COLLECTOR UJJAIN (MADHYA
4.
PRADESH)
.....RESPONDENTS
This appeal coming on this day, the court passed the
following:
ORDER
2 SECOND APPEAL No. 584 of 2021 Heard on the question of admission.
This second appeal has been filed by appellant/plaintiff under section 100 of The Code of Civil Procedure, 1908 (in short CPC) against the judgment and decree dated 15.1.2021 passed by Additional District Judge Badnagar District Ujjain in RCA No. 24/2020 affirming the judgment and decree dated 20.12.2017 passed by Civil Judge Class I Badnagar in civil suit no. 77A/2017 whereby the suit filed by plaintiff for specific performance of contract and permanent injunction has been dismissed by the trial court.
The appellant/plaintiff filed a civil suit inter-alia claiming that father of respondents/defendants no. 1 & 2 late Mangilal executed an agreement to sale in respect of suit land bearing survey Nos. 85, 75, 76 total admeasuring 0.81 hectare (suit land) on 31.12.1992 in favour of plaintiff and received the entire consideration amount while putting the plaintiff in possession of the suit land. The plaintiff issued a notice dated 2.7.2010 for execution of sale deed but the defendants refused to execute sale deed in favour of plaintiff. Therefore, the appellant/plaintiff filed the civil suit against the respondents/defendants.
The defendants no. 1 to 3 filed their written statement. They have countered all material allegations levelled in the plaint and submitting that Mangilal never executed any agreement to sale in favour of appellant/ plaintiff and never handed over the possession 3 SECOND APPEAL No. 584 of 2021 of suit land to plaintiff. The defendants being owner, are continuously in possession of the suit land.
On the aforesaid pleadings the trial court framed the issues and permitted the parties to lead their evidence. The trial court after recording the evidence and after hearing both the parties dismissed the suit filed by appellant/plaintiff. Thereafter appellant/plaintiff preferred an appeal before the first appellate court. The first appellate court upon re appreciating the entire evidence placed on record, affirmed the findings of fact so recorded by the trial court and dismissed the appeal.
Learned counsel for the appellant contended that the judgment and decree passed by both the courts below are illegal and not based upon proper appreciation of evidence. Both the courts below have failed to consider the oral as well as documentary evidence produced by the appellant. It is also argued that the trial court has erred in dismissing the suit preferred by plaintiff. Both the courts below have ignored the pleadings made by appellant and also erred in holding that Mangilal was never entered into agreement to sale in respect of suit property. The trial court has erred in holding that suit of plaintiff is barred by law of limitation and plaintiff failed to prove title on the basis of adverse possession. Learned counsel for appellant in support of his arguments placed reliance upon following judgments:
1/ Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba 4 SECOND APPEAL No. 584 of 2021 Survayshi reported in (2002) 3 SCC 676; 2/ Godavari Bai Vs. Pandit reported in (2005) 1 MPHT 184; 3/ Bibi Jaibunisha Vs. Jagdish Pandit reported in(1997) 4 SCC 481;
4/ Govind Prasad Chaturvedi Vs. Hari Dutt Shastri reported in (1977) 2 SCC 539;
5/ Panchanan Dhara Vs. Monmatha Nath Maity reported in (2006) 5 SCC 340 Thus, in the light of the aforesaid he submits that present appeal deserves to be admitted on the substantial questions of law as proposed by appellant.
I have gone through the judgment and decree passed by both the courts below and have perused the entire record.
On perusal of the record of the trial court, it appears that the appellant/plaintiff Jagdish (PW-1) has stated in his statement that Mangilal has executed an agreement to sale (Ex.P-2) in respect of suit property in his favour, he also filed certified copy of Kist Bandi Khitoni (Ex.P-1) of year 2009-10. He also admitted in his cross examination that at the time of execution of agreement to sale (Ex.P-2) he was minor but same fact was not mentioned in Ex.P-2. He further admits that in agreement to sale(Ex.P-2) on B to B part figure 20 was deleted and in its place, figure 30 was inserted and in the same manner, figure 38 was also deleted and 48 was inserted. But both the material manipulation was not countersigned by any of 5 SECOND APPEAL No. 584 of 2021 the parties. The plaintiff has also examined Ram Singh (PW-2) and Puna (PW-3) and Uday (PW-4) in his evidence, but Uday singh in para 7 of his cross examination categorically stated that ''पदर प-२ पर मर हस कर क समय क ई क टप ट नह थ .'' Puna (PW-3) was not cross examined by the defendant and therefore his incomplete statement cannot be relied upon. Ramsingh was not a witness of Ex.P-2. Hence his statement is not material.
Therefore, in view of the aforesaid analysis it is evident that witness Puna was not examined by plaintiff, witness Udaysingh has not supported manipulation appears in the agreement (Ex.P-2). There are certain manipulation in respect of consideration amount in Ex.P-2 which was not duly attested by concerned Notary. Therefore, in effect of the aforesaid manipulation execution of agreement to sale Ex.P-2 becomes doubtful.
It is also noteworthy that there is no recital in respect of delivery of possession of suit land in the agreement to sale (Ex.P-2). The appellant/plaintiff also filed Kist Bandi Khitoni of the same year but name and possession of appellant was not incorporated in the said Kist Bandi Khitoni. The appellant Jagdish himself admitted in his cross-examination that in Ex.P-1 suit land was recorded in the name of Ram Singh, Harisingh, Devnarayan, Kantabai, Reshambai, Geetabai and Shelabai and name of Mangilal was not recorded as Bhumiswami in absence by supporting documentary evidence. The statement of appellant not to be considered trustworthy.
6 SECOND APPEAL No. 584 of 2021The appellant is also claiming title over the suit property by way of adverse possession. The law with regard to the perfection of title of adverse possession is well settled. A person claiming title by adverse possession has to prove three nec - nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim Vs. Mst. Bibi Sakina [AIR 1964 SC 1254] it has been observed thus:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
Normally, the plea of adverse possession would only enable a person taking the same to resist any attempt by any other person to evict them. It is also in the form of defence. It was this reason that the plea of adverse is treated as a shield and not a sword.
Hon'ble Supreme Court in the case of Balkrishna Vs. Satyaprakash reported in (2001) 2 SCC406 considered the question, whether a person could claim title by adverse possession by filing a suit, therefore, the suit for declaration of title for adverse possession as well as permanent injunction is maintainable.
It is also well settled principle that the parties claiming adverse possession must prove their possession and the said possession must be peaceful, open, uninterrupted and continuous.
7 SECOND APPEAL No. 584 of 2021The plaintiff's possession must be adequate and in continuity and adverse to true owner. The adverse possession must start from wrongful dispossession of the original owner and the possession must be actual, visible, exclusive, hostile and continued for a statutory period, therefore, to claim title by adverse possession, the plaintiff must plead and prove on the date, he came into possession and what are the nature of his possession and whether the factum of possession was known to other person and how long, his possession was continued and his possession was open and undisturbed. It is also established rule, that where, possession, however, so long, cannot be treated as an adverse, so to acquire title, unless there is an unanimous or hostility on the part of the person in possession, who is not the real owner.
Onus to prove the issue of adverse possession lies upon the appellant/plaintiff , but the plaintiff has not produced any relevant revenue document regarding the suit property to prove his possession openly hostile to actual owner. The plaintiff did not file continuous Panchashala Khasra for the period of 12 years prior to the suit. Even the plaintiff did not file any relevant document regarding revenue receipt or any other revenue paper for proving his possession over the suit land, therefore the appellant/plaintiff has failed to prove his continuous possession over the suit property prior to the institution of the Civil Suit for the period of 12 years as per the Sections 64 and 65 of the Indian Limitation Act, therefore 8 SECOND APPEAL No. 584 of 2021 the plea of adverse possession sought by the appellant has rightly been dismissed by both the Courts below as there is no evidence available before the Courts below to establish this plea.
The agreement to sale (Ex.P-2) was executed in the year 1992 therefore, the appellant ought to file the suit for title on the basis of adverse possession within 12 years of sale deed but he has filed this suit before the trial court in the year 2011. The limitation provided for specific performance of contract is also 3 years therefore, the first appellate court has rightly held that appellant's suit is also barred by time.
Thus, the citations relied upon by counsel for the appellant are distinguishable on its own fact.
In the light of the aforesaid discussion, this Court is of the considered view that the judgment and decree passed by both the courts below are well reasoned and are based on due appreciation of oral as well as documentary evidence available on record. The findings recorded by the courts below are concurrent findings of fact.
Learned counsel for appellants has failed to show that how the findings of fact recorded by the courts below are illegal, perverse or based upon no evidence. Thus, no substantial question of law arises for consideration in the present second appeal. The Supreme court in number of cases has held that in exercise of powers under section 100 of the Code of Civil Procedure the Court 9 SECOND APPEAL No. 584 of 2021 can interfere with the findings of fact only if the same is shown to be perverse and based upon no evidence. Some of these judgments are Hafazat Hussan Vs. Abdul Majeed and others , 2011(7) SCC 189, Union of India Vs. Ibrahim Uddin, 2012(8) SCC 148 and Vishwanath Agrawal Vs. Sarla Vishwanath Agralwal 2912(7) SCC 288.
For the aforesaid reasons, no substantial questions of law arises for consideration in this appeal. The appeal fails and is hereby dismissed in limine.
C c as per rules. .
(ANIL VERMA)
JUDGE
BDJ
Digitally signed by
BHUVNESHWAR DATT JOSHI
Date: 2022.05.06 11:58:51
+05'30'