Madhya Pradesh High Court
Smt.Urmila & Anr. vs Hemraj & Ors. on 21 August, 2019
Author: Jagdish Prasad Gupta
Bench: Jagdish Prasad Gupta
1
S.A.No.770/1995
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
Second Appeal No.770/1995
Smt. Urmila & others
Vs.
Hemraj (dead) through his LR & others
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Shri G.S Baghel, Advocate for the appellant.
Shri Sanjiv Kumar Mishra, Advocate for the respondent no.1
Shri D.N. Shukla with Shri Amresh Mishra, learned counsel for
the respondent no.2.
Shri Mohd. Rizwan Khan, learned G.A for the respondent/State.
Whether approved for reporting : (Yes/No).
JUDGMENT
(21.08.2019) This second appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 24/08/1995 passed by the IInd Additional District Judge, Chhindwara in Civil Appeal No.39-A/1989, reversing the judgment and decree dated 31/03/1989 passed by the IIIrd Civil Judge, Class- II, Chhindwara in Civil Suit No.678-A/1978.
2. In the present case it is admitted fact that the suit prop- erty was in the ownership of Padam Singh, who died in the year 1962 leaving behind him, his wife Dashodi Bai and his two daughters Smt. Nando Bai, mother of plaintiff/appellants and Smt. Mulli Bai/Defen- 2 S.A.No.770/1995 dant no.2. Smt. Dashodi Bai died in the year 1985 and Nando Bai died in the year 1963 and Dashodi Bai on 18/05/1976 executed the sale deed of the suit property in favour of defendant no.1 Hemraj.
3. The appellants/plaintiffs case is that in the life of Dashodi Bai the suit property was in joint possession of the plain- tiffs/appellants and defendant no.2 Mulli Bai and Dashodi Bai. Thereafter it was found that the sale deed was executed by Dashodi Bai while she was having no right to execute the sale deed of the suit property. She was having only 1/3 share in the suit property and af- ter the death of Dashodi Bai, the plaintiffs/appellants have ½ share with the defendant no.2 Mulli Bai. Therefore, the suit was filed on 14th October, 1985 with the prayer that it should be declare that Plaintiffs have ½ share in the suit property. Therefore the sale deed be declared as null and void and defendant no.1/appellant purchaser be directed to handover the possession and also pay the mesne profit.
4. The respondent/defendants have contested this case on the ground that after death of Padam Singh, Dashodi Bai was exclu- sive possession of the suit property and for the necessity and need of the family she sold out the property rightly. Hence the sale deed is legal. The plaintiffs/appellants have no right to challenge it and the suit is time barred. Therefore the plaintiff/appellant have no right to claim for any relief.
5. Learned Trial court after trial held that Dashodi Bai had only 1/3 share in the suit property and the appellants/plaintiffs have 3 S.A.No.770/1995 1/3 share in the suit property and defendant no.3 Mulli Bai also has 1/3 share and to the extent of 1/3 share of the plaintiffs/appellants the sale deed is null and void and suit is within time and with regard to the possession no order was passed.
6. The aforesaid findings were challenged before the Dis- trict Judge, Chhindwara in First Appeal by the appellants/plaintiffs on the ground that learned trial court did not considered plaintiff's claim to the extent of ½ share while the plaintiffs have right of ½ share after death of Dashodi Bai and the learned trial court did not grant relief of possession and mesne profit and committed legal er- ror. Hence aforesaid relief be granted.
7. On behalf of the respondent, it was contended that learned trial court has wrongly rejected the objection that the sale deed is valid as Dashodi Bai had right to sell out the property for the need of family as well as having exclusive possession on the suit property and the suit was time barred.
8. Learned first appellate court after hearing of the appeal has held that after death of Padam Singh, Dashodi Bai and Mulli Bai/defendant no.3 and Pramila Bai and Urmila Bai as daughter of Nando Bai were having 1/3 share in the suit property and after death of Padam Singh the suit property was in possession of Dashodi Bai and till execution of the sale deed dated 18/05/1976, there was no demand of partition on behalf of appellants/plaintiffs and since 18/05/1976 the defendant no.3 Hemraj is in possession of the suit property and property was in exclusive possession of the co-owner. 4 S.A.No.770/1995 In absence of the demand of the partition from Dashodi Bai and af- ter purchasing, land is in exclusive possession of the defendant no.3, thereafter the title of the plaintiff has ceased. On account of the aforesaid reasons and in view of the provision of Article 113 of the Limitation Act the suit is time barred. Therefore, the plaintiff/appel- lant is not entitled to any relief in the case and the decree passed by the trial court was set aside. Hence this appeal.
9. The appellants/plaintiffs have filed this appeal on the ground that the judgment and decree passed by the learned lower appellate court is erroneous in law and on facts. Learned appellate court, having found that the appellants had 1/3 share in the suit property, should have held that they being jointly in possession, could not have lost their interest by adverse possession and the suit should be held within time as it was filed within 12 years after the ex- ecution of the sale deed and within 6 months after death of Dashodi Bai and it is wrongly held that the suit is time barred.
10. This Court by order dated 09/01/1996 admitted this ap- peal on the following substantial questions of law:-
(i) Whether under the facts and in the circumstances of the case the suit of the appellants is barred by limitation?
(ii) Whether under the facts and in the circumstances of the case the first appellate court was justified in dismissing the plaintiff's suit despite holding that the property was ancestral; the appellants jointly had 1/3 share and other joint holder had sold the entire property though she only had 1/3 share in the property ?
That on 30/04/2012 further substantial question of law was framed by this Court, which is as under:-
5S.A.No.770/1995
(iii) Whether the Courts below erred in holding that plain-
tiffs have only one-third share in the suit land?
11. Learned counsel appearing on behalf of the respon- dents/defendants further submitted that learned first appellate court has not committed any error in holding that the suit should be filed within 3 years after execution of the sale deed dated 18/05/1976 by Dashodi Bai in favour of the respondent/defendant no.1 Hemraj for getting relief of setting aside of the sale deed. Apart from it, learned first appellate court has rightly held that after the death of Padam Singh in the year 1962, the appellants have never made demand of partition and they had remained out of possession of the suit property on the principle of ouster and with their conduct they are prohibited to claim title on the suit property. There is no need to interfere in the finding of the learned first appellate court and the appeal be dismissed.
12. Having heard learned counsel for the parties and on pe- rusal of the record, the aforesaid substantial legal questions are be- ing answered in the following manner :-
Question No.1:-In view of this Court the finding of learned first appellate court that the suit is time barred is erroneous and contrary to law. It appears that learned trial court has found the suit time barred on the application of Article 113 of the Limitation Act and also Article 65 of the Limitation Act. While Article 113 of the Limitation Act is not applicable in the present case. The applicants were not party of the sale deed dated 18/05/1976 executed by 6 S.A.No.770/1995 Dashodi Bai. Their claim are that Dashodi Bai was not the sole owner of the suit property and applicants have 1/3 share in the prop- erty. Therefore the sale deed dated 18/05/1976 is null and void and also prayed for possession on the suit property on the basis of the ti- tle. The prayer to declare the sale deed null and void is incidental. There is no need to ask for such declaration and suit will govern Ar- ticle 65 of the Limitation Act in place of Article 113 of the Limitation Act. Therefore there is no need to file the suit within 3 years after ex- ecution of the sale deed dated 18/05/1976. Thus, the learned trial court has committed legal error as Article 113 of the Limitation Act is applicable in the case where there is no specific period is prescribed in the Limitation Act. Article 65 of the Limitation Act prescribe pe- riod of limitation for the suit filed for possession based on title. Hence Article 113 is not applicable. It can't be said that suit is time barred in view of the Article 113 of the Limitation Act.
13. So far other finding with regard to deeming the suit time barred on the basis of ouster from the property is concerned, there is no specific plea of adverse possession of the respondent/defendant. After death of Padam Singh, Dashodi Bai and her daughters Nando Bai and Mulli Bai were co-owner of the property and the possession of one co-owner will be deem to be the possession of all unless it is proved by one co-owner that his possession is adverse against other co-owner. Merely on the ground that Dashodi Bai was in possession and using the property and the appellants did not demand the parti- tion of the property is not sufficient to prove the possession of 7 S.A.No.770/1995 Dashodi Bai to be adverse against appellants and so far possession of defendant Hemraj is concerned, he is in possession since 16/10/1985 and the suit is also filed in the year 1985. Therefore, in this case it can't be held that the respondent/defendant no.1 Hemraj or Dashodi Bai from whom he purchased the suit property had ad- verse possession against the appellant. Hence on the ground of so called ouster, it can't be said that the suit is time barred in view of the Article 65 of the Limitation Act. In view of the aforesaid discus- sion, the finding of the first appellate court that the suit is time barred is contrary to law and it is held under the facts and circum- stances of the case that the suit of the appellant is not time barred.
14. Question No.2:- Learned trial court and first appellate court have held that the appellant had 1/3 share in the suit property and Dashodi Bai also having 1/3 share in the property and sold out entire property. Learned trial court on the aforesaid finding decreed the suit of the appellant to the extent of 1/3 share but the first appel- late court has dismissed the suit even to the extent of 1/3 share of the appellant as suit was found time barred but in view of the earlier discussion, it is held that the suit is not time barred. Consequently, the finding of learned first appellate court deserves to be set aside and the finding of the learned trial court is required to be upheld. Hence it is held that to the extent of 1/3 share of the appellants, the sale deed dated 18/05/1976 in favour of the respondent/defendant no.1 Hemraj is null and void and he is co-owner with the appellants/plaintiffs to that extent.
8S.A.No.770/1995
15. Question No. 3:- The learned trial court and first ap- pellate court have not committed any legal error in holding that the plaintiffs/appellants have only 1/3 share in the suit property as at the time of execution of the sale deed dated 18/05/1976 in favour of the respondent/defendant no.1 Hemraj, Dashodi Bai had 1/3 share which was transferred by her by executing the sale deed. Therefore after the death of Dashodi Bai, the appellants can't claim ½ share of Dashodi Bai as the share of Dashodi Bai transferred to the defendant no.1 Hemraj. Thus the share of the appellants/plaintiffs is only 1/3 in the suit property.
16. In view of the aforesaid discussion, this appeal is al- lowed and the judgment and decree of the first appellate court is set aside and judgment and decree of the trial court is upheld with addi- tion that the appellants/plaintiffs are also in possession of the suit property with the defendants/respondents as co-owners.
17. A copy of the judgment along with the record be sent to the trial court for compliance.
(J.P.Gupta) JUDGE tarun Digitally signed by TARUN TARUN KUMAR SALUNKE DN: c=IN, o=HIGH COURT OF MP, ou=GOVERNMENT, postalCode=482002, KUMAR st=Madhya Pradesh, 2.5.4.20=19a265290eb7f630 7d4a64122959af56e05e3d1 d609e0fd1051d7f6331251f9 SALUN 9, serialNumber=0e7afab970b 523fc5e1fd370da00347dabf a96b26cbffd08773a847c03d KE 3115c, cn=TARUN KUMAR SALUNKE Date: 2019.08.22 12:58:43 +05'30' 9 S.A No.770/1995 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR (SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA) Second Appeal No.770/1995 Smt. Urmila & others Vs. Hemraj (dead) through his LR & others JUDGEMENT Post for : __/08/2019 (J.P.GUPTA) JUDGE __/08/2019