Madhya Pradesh High Court
Ratan Singh And Another vs Shaligram And Another on 5 April, 2000
Equivalent citations: 2001(1)MPHT97
Author: A.K. Mishra
Bench: A.K. Mishra
ORDER A.K. Mishra, J.
1. Plaintiff has filed the present Letters Patent Appeal aggrieved by the dismissal of suit by learned single Judge, which was decreed by the Trial Court.
2. The case has a chackered history. The present suit was filed by Ratan Singh and Bahadur Singh sons of Tulsiram against Shaligram and State of M.P. for possession of the land and mesne profit, on the allegation that one Sunderlal was the Bhumiswami of Survey No. 303/2 in area 15.50 acres of agricultural land situated at Mouza Sangalkheda Khurd in the district of Hoshangabad. The said Sunderlal died in the year 1964. The suit was filed for restoration of 7 acres of land out of Survey No. 303/2 marked in the map as "ABCD" which was also the subject matter of an earlier suit bearing No. 4-A/72 filed in the Court of IInd Additional District Judge, Hoshangabad. As the judgment and decree was passed on 2-7-1964, it was held that the present plaintiff would be entitled for restoration of possession in the event he pays a sum of Rs. 7,000/- to the defendant No. 1. Conditional permanent injunction was granted in favour of defendant No. 1 till the payment of Rs. 7,000/- by the present plaintiff, he was entitled to protect the possession. In the present suit the plaintiff had averred that pursuant to a judgment and decree passed on 22-7-74 in Civil Suit No. 4-A/72, amount of Rs. 7,000/- as ordered was deposited in Court on 25-7- 74 to be paid to the defendant. But, the defendant did not accept the deposit. Hence, after serving notice, present suit was filed for direction to restore the possession and also for mesne profit of Rs. 3,500/-for the year 1974-75 and for future mesne profit till the possession is delivered. 3. The factual matrix as unfolded in the plaint indicates that the oral death bed gift of 2 acres ofland was made by deceased Sunderlal to his sister's son Raisa. Gilkiya Bai was the widow of Sunderlal. The said Gilkiya Bai executed a registered sale-deed dated 25-6-64 of 8 acres of land out of Survey No. 303/2 in favour of Ratan Singh and Bahadur Singh, present plaintiffs and placed them in possession. On the same day, Sunderlal's sister's son Raisa sold 2 acres of land which was gifted to him, to the plaintiffs for a consideration of Rs. 3,000/- on 25-6-64. Thus, by the two registered sale-deeds, the plaintiff had purchased 10 acres of land out of Survey No. 303/2. One Mishrilal raised a dispute with respect to 10 acres of land purchased by the plaintiff, which led to filing of Civil Suits No. 48-A/64, renumbered subsequently as 24-A/66, 14-A/58 and 4-A/72 in the Court of IInd Additional District Judge, Hoshan-gabad, decided on 22-7-1974. Renumbered Civil Suit No. 4-A/72 was filed by Mishrilal against Ratan Singh and Bahadur Singh, the present plaintiffs and their vendor Raisa and Gilkiya Bai. Mishrilal died during the pendency of Civil Suit No. 4-A/72. Shaligram present defendant was substituted as the plaintiff after the death of Mishrilal. In the previous suit claim of Mishrilal, predecessor of present defendant Shaligram was that he was Bhumi Swami of Survey No. 303/2 in area 15.50 acres situated at Mouza Sangalkheda Khurd and on 28-3-63 Sunderlal had agreed to sell to Mishrilal whole of the Survey No. 303/2 in area 15.50 acres for a consideration of Rs. 8,000/-, out of which Rs. 7,000/-were paid on the date of the agreement and was placed in possession of the entire Survey No. 303/2. The remaining consideration of Rs. 1,000/- was to be paid before the Registrar. However, dispute arose between the deceased Sunderlal and Mishrilal. Proceeding under Section 145, Cr.P.C. was also drawn. However, both the parties entered into a compromise on 19-2-64. Sunderlal had agreed to give 7 acres of land to Mishrilal on 17-2-64. Sunderlal had sold 5.50 acres of land by registered sale-deed to Mishrilal for a consideration of Rs. 2,000/-. After the said compromise, Mishrilal was in possession of 5.50 acres of land out of Survey No. 303/2 which is the western portion of the land by the side of the road and 7 acres of the land to the east of this land the agreement to sale was modified and superceded by the compromise dated 19-2-64. The area held by Mishrilal under the agreement of sale was marked by letters "ABCD" in the map of Civil Suit No. 4-A/72. Mishrilal claimed the relief of permanent injunction restraining Ratan Singh and Bahadur Singh, the present plaintiffs from disturbing his possession over the area shown in the sketch map filed by him, shown as "ABCD". The compromise entered into between the parties in the proceeding under Section 145, Cr.P.C. on 19-2-64, was filed in the Court in the previous suit. Mishrilal was placed in possession of only 5.50 acres of land by Sunderlal while executing the registered sale-deed dated 17-2-64. Remaining land was sold by Sunderlal's widow Gilkiya Bai and sister's son Raisa to the present plaintiffs. A receiver was appointed in the previous proceedings under Section 145, Cr.P.C. Possession of the receiver shall be deemed to be the possession of the plaintiffs. In the previous civil suit, it was found that on 28-3-63, Sunderlal had agreed to sell the entire Survey No. 303/2 in area 15.50 acres to deceased Mishrilal for Rs. 8,000/- and had obtained a sum of Rs. 7,000/- in advance from him and had delivered its possession to him and had agreed to execute registered sale deed after taking the remaining sum of Rs. 1,000/-, at the time of registration. It was further found that in supersession of agreement of compromise dated 17-2-64 was entered into and it was agreed that Mishrilal would remain in possession of 7 acres of land in lieu of aforesaid amount of Rs. 7,000/- and that Sunderlal further would also sell away 5.50 acres of land to Mishrilal for a consideration of Rs. 2,000/- and it was found that besides 7 acres of land, 5.50 acres more land was to be sold away and Sunderlal had executed a sale-deed dated 17-2-64 regarding 5.50 acres of land. No conveyance with respect to 7 acres of land was ever executed. Thus, Mishrilal had become owner of 5.50 acres of land though he remained in possession of 12.50 acres of land and only 3 acres of the land out of 15.50 acres remained in possession of Sunderlal. It was further found that defendant No. 4 Gilkiya Bai became owner of 10 acres of land after the death of her husband Sunderlal. It was further found that Sunderlal had not gifted 2 acres of land to Raisa, his sister's son. It was further found that the sale-deed dated 25-6-64 executed by Gilkiya Bai in favour of the present plaintiffs regarding sale of 8 acres of land was not bogus and sale-deed was invalid to the extent of 7 acres of land. Thus, the present plaintiffs title was found vide sale-deed dated 25-6-64. It was further found that effort was made to disturb the possession of Mishrilal by the present plaintiffs and Gilkiya Bai over 12.50 acres of the suit land. Mishrilal had executed a will in favour of Shaligram dated 4-8-66. In the previous civil suit decree was passed to the following effect;
"Unless until the defendants do not pay the amount of Rs. 7,000/-to the plaintiffs, they are not entitled to dis-possess the plaintiffs from his possession over 7 acres of the suit land." Accordingly, the plaintiffs' claim is hereby decreed with cost till the defendants do not pay Rs. 7,000/- to the plaintiffs. The defendants arc hereby permanently restrained from interfering with the possession of the plaintiffs over 7 acres of the suit land. The defendants shall pay the costs of the suit to the plaintiffs and shall bear their own costs. Pleader's fee is allowed if certified. Decree be drawn up according-ly."
4. The present plaintiffs who were defendant Nos. 1 and 2 in the previous suit deposited vide receipt No. 46 dated 25-7-74 an amount of Rs. 7000/- as ordered by the Court in Civil Suit No. 4-A/72. It is alleged by the plaintiffs that the decision in Civil Suit No. 4-A/72 is res judicata and the defendant is bound by the judgment and decree as it had obtained finality. Notice was also given to the defendant No. 1 Shaligram to withdraw the amount from the Court. But, the amount was not withdrawn in spite of notice.
Thus, the possession of the defendants has become unauthorized in view of the condition of the decree. Thus, the plaintiffs had become entitled to claim mesne profit. The defendants Shaligram and his predecessor Mishrilal had failed to comply with the terms of the agreement with Sunderlal, they cannot get protection by virtue of Section 53A of the Transfer of Property Act and an application was moved after depositing the amount before Trial Court after passing of the previous decree to restore the possession, but, the said Court expressed inability and ordered that fresh civil suit be filed for restoration of possession. Cause of action arose on 25-7-74 when the amount of Rs. 7,000/-was deposited in Court of IInd Additional District Judge, Hoshangabad for payment to the defendant.
5. The defendant No. 1 in written statement denied the plaint allegations and contended that the sale-deed executed by Raisa did not confer any right title on the plaintiffs. The compromise was entered into, by which Mishrilal was given 12.50 acres of land, 7 acres in view of the amount already paid and sale-deed was executed by Sunderlal in respect of 5.50 acres, thus, in all 12.50 acres of the land was purchased by Mishrilal who remained in possession of the land after the compromise. It was submitted that in the previous civil suit issue of ownership was not correctly decided. It ought to have been held that the defendant No. 4 Gilkiya Bai only inherited 3 acres of land and did not become owner of 10 acres of land. The Court had no jurisdiction to decide that the defendant was entitled to remain in possession of 7 acres of land, till the payment of Rs. 7,000/- . That question was not one of the qeustions for decision in the previous suit and it was further submitted that the findings in the civil suit filed by Mishrilal against the plaintiffs, Gilkiya Bai and Raisa are resjudicata against the plaintiffs and Gilkiya Bai and they do not operate as resjudicata against the defendant Shaligram because he had succeeded in the suit and he could not file an appeal against finding part of the decision in that suit. Thus, the observation of the Court to the effect that the defendant was entitled to remain in possession of the land till Rs. 7,000/- was paid was only casual observation, not binding on the defendants. He also took the plea of Section 53A of the Transfer of Properly Act asserting the possession in part performance of the agreement. It was directed that the plaintiff had deposited Rs, 7,000/- and the defendant had refused to accept the amount. It was also submitted that Rs. 7,000/- did not remain in deposit continuously and the defendant was in possession of the land, in his own right. Suit was barred by limitation as the possession of the defendant and his predecessors had continued from 28-2-63. Later on Gilkiya Bai died and her name was deleted from the cause title. The defendant No. 2 Gilkiya had field her separate written statement and admitted the plaint allegations.
6. The Trial Court in the present case vide judgment and decree dated 4-9-87 held that the plaintiffs are entitled to receive the possession of the suit land after depositing Rs. 7,000/- in Court and the deposit was made again on 3-9-87 in the Court. It was further ordered that the defendant No. 1 Shaligram is entitled to Rs. 7,000/- deposited by the plaintiffs in Court. Parties were directed to bear their own costs.
7. Aggrieved by the judgment and decree passed by the Trial Court, First Appeal No. 145/87 came to be filed before this Court. Learned single Judge has decided the said appeal vide judgment and decree dated 17-3-94. This Court came to the conclusion that payment of Rs. 7,000/- having not been made within the reasonable time, it should be held that the condition was not satisfied of the previous decree while interpreting reasonable period under Section 46 of the Contract Act. The learned single Judge framed the question in Para 13 of the judgment to the following effect:
"The question, therefore, is whether filing of the suit without making the deposit entitled the plaintiffs to file the suit and secondly whether the deposit made on 3-9-1987 can be said to be within a reasonable time?"
The learned single Judge relied upon a decision of the Supreme Court in case of H.I. Trust Vs. Haridas Mundhra (AIR 1972 SC 1826) in para 25 which reads as under:
"It was an implied term of the contract and therefore of the decree passed thereon that the parties would perform the contract within a reasonable time. To put it in other words, as the contract subsisted despite the decree and as the decree did not abrogate or modify any of the express or implied terms of the contract, it must be presumed that the parties to the decree had the obligation to complete the contract within a reasonable time."
8. Learned single Judge held that the money having not been returned within a reasonable time, the defendant No. 1 became entitled to remain in possession and no decree for possession could have been granted in this suit. Learned single Judge also came to conclusion relying on the decision of the Supreme Court in case of Rajendra Singh Vs. Santa Singh (AIR 1973 SC 2537) that in the instant case the limitation would run from the date of original contract i.e. 28lh March, 1963 and computing the period of 12 years from the said date, the suit ought to have been filed in March, 1975. On both the grounds, it was found that the decree passed by the Trial Court was liable to be set aside and there was unreasonable delay in depositing the amount and the title of the defendant No. 1 was perfected by adverse possession.
9. In the present appeal, Shri N.S. Kale, learned Sr. Advocate, has submitted that the judgment and decree passed by learned single Judge are illegal and contrary to law. He has submitted that the money was deposited within 3 days from passing of the decree in the previous suit, the judgment and decree was passed on 22-7-74 and the amount of Rs. 7,000/- was deposited on 25-7-74. The defendant did not himself accept the amount. The present suit was filed on 4-2-76. Notice was also served as contained in Annexure P-11 dated 8-3-75 informing that Rs. 7,000/- was deposited on 25-7-74 which the defendant was free to receive from the Court. In view of the deposit, the defendant should not interfere in the possession of plaintiff of 7 acres of the land in question. He has submitted that learned single Judge had ignored and overlooked the plaint and written statement. There was admission in the written statement filed by the defendant No. 1 that amount of Rs. 7,000/- was deposited which was not lifted by defendant himself. It appears that the part of the amount was appropriate without knowledge of plaintiffs towards the costs of the previous suit, by the defendant/respondent, hence, second time deposit was made again of Rs. 7,000/- on 3-9-87 which in the circumstances could not be said to be deposited with unreasonable delay as defendant had refused to accept the deposit earlier made within 3 days of the decree. It was further submitted that the suit could not be held to be barred by limitation nor it could be held that the defendant/respondent had perfected his title by virtue of adverse possession.
10. Learned counsel for the defendant/respondent has submitted that the reasonable period of making the deposit should be counted from the date of initial contract i.e. 28-3-63. The deposit which was made in the Court was not a valid deposit. He has supported the decision of the learned single Judge. He has also pointed out that proceedings under Order 21 Rule 35, CPC were also taken on 4-11-74. They were dismissed on 21-2-75. An application under Sections 151-152, CPC was also moved after making the deposit of Rs. 7,000/-which was also dismissed. It is pointed out that C.R. No. 577/77 came to be filed before this Court which was decided on 8-2-79. It is very fairly pointed out that issue No. 7 with respect to the possession was decided by the Trial Court on 25-4-77. It was held that the suit was not barred by limitation. It was held that the receiver was in possession of the suit land from 9-1-64 to 19-2-64 and the suit was filed on 4-2-76. Thus, it was within the limitation. This Court in C.R. No. 577/77 for different reasoning confirmed the finding and came to the conclusion that the possession was not adverse and was permissive. Reliance was placed on a decision of the Supreme Court in case of S.M. Karim Vs. Mst. Bibi Sakina (AIR 1964 SC 1254). It was held that the possession was initially under an agreement to sale and thereafter under a compromise dated 19-2-64 and was not adverse. Calculating the period from 19-2-64 it was held that the suit which is instituted on 4-2-76 is positively within 12 years and therefore it was within the time. The order passed in the said revision had attained finality. Learned counsel has placed reliance on Section 46 of the Contract Act and Order 6 Rule 6, CPC and decision of the Supreme Court Court in case of H.I. Trust Vs. Haridas Mudhra (AIR 1972 SC 1826) supra.
11. It appears that learned single Judge has failed to notice the decision of this Court in C.R. No. 577/77 dated 8-2-79, by which it was held that the present suit was not barred by limitation and the defendant's possession could not be termed as adverse possession.
12. The main submission of learned counsel for the appellants and the respondents is, as to finding of single Judge that deposit of Rs. 7,000/- was with unreasonable delay, hence, the plaintiff's were not entitled for a decree for their failure to comply the contract/decree.
13. Learned single Judge has taken into account that the deposit was made only on 3-9-87 whereas factually it is not correct. It may be seen that the requisite averments have been made by the plaintiffs in Paragraphs 11 and 12 of the plaint to the following effect:
"11. That on 25-7-74 the plaintiffs deposited Rs. 7000.00 for payment to the defendant Shaligram in the Court of II Additional District Judge, Hoshangabad, and requested the Court to notice Shaligram to take this amount and to order delivery of possession of 7 acres of land to the plaintiffs.
12. That the Court issued notice to Shaligram. He appeared in Court and filed a reply. He did not agree to take the amount deposited and to hand back possession of 7.00 acres of land."
14. It may be seen that the judgment and decree in the previous suit was passed on 22-7-74 and the judgment and decree was passed which enabled the present plaintiffs to obtain possession on deposit of Rs. 7.000/- and permanent injunction was granted conditionally in favour of the defendants respondents till the deposit of Rs. 7,000/- was made by the present plaintiffs. Within 3 days of the judgment and decree the amount was deposited in the C.C.D. vide receipt No. 46. Significantly, this deposit has been admitted by defendant No. 1 in the written statement in Paragraph Nos. 11 and 12 which are reproduced under:
"11. In reply to para 11 it is submitted that the plaintiffs had deposited Rs. 7,000/- but this defendant does not know the date. It is also admitted that delivery of possession was prayed for but the prayer was rejected.
12. Paras 12 and 13 of the plaint are so far admitted that this defendant was not bound to accept the amount deposited by the plaintiffs hence he refused to accept it. It is also admitted that this Hon'ble Court was pleased to dismiss the application of the plaintiffs for delivery of possession. It is, however, submitted that the plaintiffs are not entitled to file any suit for possession as they have no right to do so. They can not claim 7.00 acres of land on payment of Rs. 7,000/- under any provision of law or under any agreement. It is denied that the plaintiffs are entitled to claim any mesne profits or that the mesne profits of the land are Rs. 3500/-."
15. At the evidence stage also the plaintiff Ratan Singh examined as P.W. 6 has stated in para 5 that pursuant to the judgment and decree passed in Civil Suit No. 4-A/72 Ex. P-10 he had made a deposit of Rs. 7,000/- to be paid to the defendant on 21-7-74 and a notice (Ex. P-11) was also sent to the defendant to obtain the amount, of which the postal receipt is Ex. P-12 and the acknowledgment is Ex. P-13. In spite of notice the defendant did not obtain the amount from the Court nor handed over the possession. The said amount was still lying in deposit in the Court and was not received back by the plaintiff. He was ready to deposit any further sum which the Court may order. This he stated in Paragraph 9 of his deposition. The plaintiff had expressed his ignorance whether the decree holder had appropriated the amount of costs out of Rs. 7,000/- which was deposited in the Court, On behalf of the defendant, Pratap Singh was examined as D.W. 1. He is brother of Shaligram defendant. He has stated that he was looking after the civil suit on behalf of Shaligram and had withdrawn an amount of Rs. 2396/- from the Court, out of the amount of Rs. 7,000/- which was deposited by the present plaintiffs pursuant to the previous decree passed in Civil Suit No. 4-A/72. In para 12 he has expressed his unwillingness to obtain Rs. 7,000/- as per the decree. Thus, this fact was not in dispute between the parties that the deposit was made on 25-7-74 pursuant to the decree passed on 22-7-74 in Civil Suit No. 4-A/72 and the money was deposited to be paid to the defendant respondent as per the decree that was not towards the amount of costs. However, it appears that an amount of Rs. 2396/- was appropriated and withdrawn by the defendant respondent through Pratap Singh. The date of its withdrawal had not been made clear. However, the fact remains that the money was deposited admittedly towards the compliance of the decree passed in the previous civil suit and again an amount of Rs. 7,000/- was deposited on 3-9-87 and the remaining amount of first deposit was not withdrawn by the plaintiff. The learned single Judge has placed reliance on the decision of the Supreme Court in H.I. Trust (supra). The facts of the said unfold case that an application was filed for rescission of an agreement for sale dated October 30, 1956 as also the decree dated February 25, 1964, for specific performance of the agreement and for other alternative reliefs specified in the application. Formal agreement dated October 30, 1956 was executed between the parties. Pursuant to this agreement, 49 per cent of the shares were sold. Thereafter another party exercised its option to purchase the 51 per cent shares. Hence, on April 19, 1961, suit was filed for specific performance of agreement to sale. The decree provided that certain shares were to be transferred for a consideration of Rs. 86,60,000/-. Injunction was also granted. An appeal was filed in which decree was stayed. The appeal was dismissed. Thereafter, by a Master's summons dated August 30, 1965, an application was filed to implement the decree by paying Rs. 86,60,000/-, the un-paid money, within such time as the Court may direct. The application was dismissed on September 20, 1965 holding that the application was one for execution of the decree in Suit No. 600 of 1961. An appeal was filed against the said order. The appeal was dismissed on August 8, 1966. Before the dismissal of the appeal the decree was attached in execution of three other decrees and there was attachment of shares which was the subject matter of the decree. In that context the Supreme Court has held in para 19 as under:
"19. We do not think that the appellant had an accrued right for rescission of the contract or the decree for specific performance under Section 35 of the Specific Relief Act, 1877, when the Act was repealed by the Specific Relief Act, 1963, on March 1, 1964. It may be recalled that the decree in Suit No. 600 of 1961 was passed on February 25, 1964 and that the application for rescission of the decree was filed on March 21, 1967. Section 35 of the Specific Relief Act, 1877, so far as it is material for the purpose of this case provided that where a decree for specific performance of a contract of sale or of a contract to take a lease has been made and the purchaser or lessee makes default in payment of the purchase money, which the Court has ordered him to pay, the decree may be rescinded as regards the party in default cither by a suit or by an application. The right to rescind the decree under the section can arise only if the purchaser makes default in paying the purchase money ordered to be paid under the decree. Before the lapse of a reasonable time from the date of the decree, the appellant could have no right to have the decree rescinded on the ground of default of the purchaser. To put it in other words, the right of the appellant to have the decree rescinded was dependent upon the default of the purchaser in paying the purchase money. Such a default had not occurred when the Specific Relief Act, 1877, was repealed, as a reasonable time for the performance of the obligation under the decree had not elapsed from the date of the decree. The more important reason why there was no default in this case was that the execution of the decree in Suit No. 600 of 1961 was stayed by orders of the Trial and Appellate Court till August 26, 1964. We, therefore agree with the finding of the Division Bench that appellant had no accrued right on the date of the repeal to file an application under Section 35 of the Specific Relief Act, 1877, which was saved under Section 6 of the General Clauses Act, 1897. The mere right to take advantage of the provisions of an Act is not an accrued right (See Abbot Vs. The Minister for Lands, 1895 AC 425)."
In Paragraph 25 of the above decision, it has been held by the Supreme Court as under:
"25. It was contended on behalf of Mundhra that he was always ready and willing to pay the purchase money but since the decree did not specify any time for payment of the money, there was no default on his part. In other words, the contention was that since the decree did not specify a time within which the purchase money should be paid and, since an application for fixing the time was made by the appellant and dismissed by the Court, Mundhra cannot be said to have been in default in not paying the purchase money so that the appellant might apply for rescission of the decree. If a contract does not specify the time for performance, the law will imply that the parties intended that the obligation under the contract should be performed within a reasonable time. Section 46 of the Contract Act provides that where, by a contract, a promisor is to perform his promise without application by the promisee, and not time for performance is specified, the engagement must be performed within a reasonable time and the question "what is reasonable time" is, in each particular case, a question of fact. We have already indicated that the contract between the parties was not extinguished by the passing of the decree, that it subsisted notwithstanding the decree. It was an implied term of the contract and, therefore, of the decree passed thereon that the parties would perform the contract within a reasonable time. To put it in other words, as the contract subsisted despite the decree and as the decree did not abrogate or modify any of the express or implied terms of the contract, it must be presumed that the parties to the decree had the obligation to complete the contract within a reasonable time."
16. Learned single Judge appears to have ignored the fact that in the present case deposit was made within 3 days of passing of the decree and the parties were litigating with each other to ascertain their respective title in the previous suit and the rights for the first time were crystalized to receive back possession in favour of the present plaintiffs. Only on 22-7-74 when the judgment and decree Ex. P-10 was passed by the Trial Court, in Civil Suit No. 4-A/72 there were several litigation pending between the parties which became final in the year 1972.
17. In the present case decree has directed the refund of the amount which was paid earlier by deceased Mishrilal to deceased Sunderlal in the year 1963. The terms of the compromise were not brought on record to show that it was under the compromise that money was to be refunded and time limit was fixed under the compromise for the payment nor it is the case pleaded on written statement. As a matter of fact, full ownership was asserted by the respective parties in the previous civil suit which came to be finally decided by the Court on 22-7-74 and within 3 days thereof the deposit of Rs. 7,000/- was made in compliance of the decree though no time limit was fixed. Thus, there was absolutely no delay on behalf of the present plaintiffs in making the deposit of Rs. 7,000/-. The appropriation of part of the amount of about Rs. 2400/-towards the costs out of the said amount by the defendants respondents would not adversely affect the present plaintiffs' right to obtain back the possession as the defendant had categorically refused in the written statement that he had refused to lift the money from the Court which was deposited pursuant to the direction made in the decree. That money remained in continuous deposit as deposed by the plaintiff Ratan Singh and was not withdrawn by him and an additional deposit of Rs. 7,000/- was made on 3-9-87 where as already approximately Rs. 4600/- were also lying in surplus deposit as against the first deposit and the defendant through Pratap Singh examined as D.W. 1 had stated that he was not ready to accept Rs. 7,000/-. Even a notice was served vide Ex. P-11 by the present plaintiffs appellants on the defendant respondent to receive the money from the Court lying in deposit, but, still the amount was not received from the Court. Thus, it cannot be said that there was any delay made by the present plaintiffs appellants in complying with the decree with respect to deposit of Rs. 7,000/- which was ordered to be paid as condition of restoration of possession. As a matter of fact an application was filed for restoration in the previous suit under Order 21 Rule 35, CPC to restore the possession, but, the direction was issued to file a separate civil suit. An application was filed under Sections 151-152, CPC to direct delivery of possession, but, which met the same fate. Hence, the present suit was filed. The learned single Judge has failed to consider the pleadings, thus, the reversal of judgment and decree on the count that there was unreasonable delay in making the deposit is clearly bad in law.
18. Further question placed for consideration in para 13 of impugned judgment whether the suit filed without making the deposit was maintainable, though was not answered by the learned single Judge, but, it is clear from the averments made in paras 11 and 12 of the written statement that the money was in deposit in the Court at the time of filing of the suit. Whatever, that may be, even the appropriation of part of the amount for any other purpose from aforesaid deposit would not make the subsequent deposit in unreasonable time as the defendant was not ready and willing to obtain the amount, even after service of notice. The amount was deposited in reasonable time in the facts and circumstances of the case and was not violative of intendment enunciated under Section 46 of the Contract Act. Section 46 of the Contract Act runs as under:
"46. Where, by the contract, a promisor is perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time." .
As per the explanation to Section 46 the question "what is a reasonable time" is, in each particular case, a question of fact.
19. In the instant case the very contract/compromise has not been placed on record to show that any time was fixed for return of the amount of Rs. 7,000/-. What is obtainable from the previous judgment and decree. That sale-deed in favour of the present plaintiffs was held to be valid with respect to 7 acres of land and the title of which was inherited by the defendant No. 4 Gilkiya Bai. After the sale of 5.50 acres of land to deceased Mishrilal. This finding is conclusive and binding on the present defendant/respondent. It was further held in para 22 of the previous judgment and decree Ex. P-2 as under :
"As such no title in respect of 7 acres disputed land had passed to deceased plaintiff Mishrilal and so its title had remained with deceased Sunderlal. Hence, I hold that deceased plaintiff Mishrilal had become the owner of only 5.50 acres suit-land by virtue of sale-deed (Ex. P-2) and no title regarding the remaining 7 acres of land had passed to him, although he remained in possession of those 7 acres land more as per terms of the compromise in lieu of said Rs. 7,000/-, which he had paid to deceased Sunderlal white entering in to the alleged agreement of the sale of the entire 15.50 acres land on 28-3-1963 and that after the said compromise, only 3 acres of land was left with deceased Sunderlal."
20. Thus, the decree passed in the previous suit was against the present defendant respondent who was plaintiffs in that case and his right to retain possession was limited with respect to 7 acres of the land till payment of Rs. 7,000/- by the present plaintiffs, who were defendants in the previous suit.
21. The submission of learned counsel for the defendant respondent that there was simply a finding recorded in the previous judgment and defendant respondent's suit was decreed, hence, the previous judgment and decree Ex. P-l could not operate was res judicata. It is clear that the suit for permanent injunction was based on title and the title was negatived with respect to the land in dispute in the instant case and permanent injunction was also issued on conditional basis and had to come to an end on deposit of sum of Rs. 7,000/-. Thus, it was decreed against the interest of the defendant respondent who could have filed an appeal against the same. Hence, the finding recorded on the question of title operates res judicata as the suit was based on title for permanent injunction. The injunction was also not granted in perpetuity, but, was conditional one. Hence, the finding operates as res judicata on the question of title. The said judgment and decree operates as res judicata as no appeal was filed by the either of the parties against it and the right for the first time was given to the present plaintiffs appellants on equitable consideration to retain the possession till such time Rs. 7,000/- were not paid and the sale-deed in their favour was held to be valid and the title of defendant respondent was negated. Thus, for the first time the decree had directed payment of Rs. 7,000/- to defendant respondent by the present plaintiffs appellants. Thus, the question of un-reasonable delay in compliance of the decree was not existing in the present case as the decree was complied with within 3 days. The decree with respect to the costs could be separately put in execution and it was not brought to the notice of present plaintiffs that part of the money was appropriated towards the costs nor it is made clear that at what point of time it was so appropriated. In the facts and circumstances of the case not only the first deposit was made post haste, but, second time deposit was also made and coupled with unwillingness of the defendant to receive the amount. It is held there was no delay and the defendant ought to have received Rs. 7,000/-, of the first deposit made on 25-7-74, as that deposit was specifically meant for the purpose of condition of the decree of deposit of Rs. 7,000/- in order to receive back the possession.
22. By the deposit of Rs. 7,000/- on 25-7-74 the defendant respondent had lost the efficacy of permanent injunction issued conditionally within 3 days of passing of the decree. The deposit made on 25-7-74 meant that the permanent injunction which was issued in favour of defendant respondent was interdicted by the deposit, as the decree for injunction was conditional and the condition being fulfilled the injunction came to an end. Hence, there was no occasion for the learned single Judge to come to the conclusion that the suit was barred by limitation under Article 65 of the Limitation Act. More so in view of the decision of this Court in the same matter in C.R. No. 577/77, decided on 8-2-79 where it was specifically held that the possession was not adverse and suit was not barred by limitation, the learned single Judge has erred in law in travelling beyond the decision of this Court in the same matter which had attained finality and was binding on the Court. Even otherwise the present suit was filed on February 4th, 1976 and the previous suit was decided on 22-7-74 and there was no question of running of the adverse possession as has been found by the learned single Judge. For the reason firstly, it was held in the C.R. No. 577/77 at the time of decision deciding the issue No. 7 about the limitation that possession was not adverse and secondly possession could not be held to be adverse for the reason that after death of Sunderlal, Gilkiya Bai had transferred the land to the present plaintiffs by registered sale-deed on 25-6-64 and parties were litigating with each other throughout. Parties were asserting their respective possession. There was proceeding under Section 145, Cr.P.C. in which the receiver was also appointed. Civil Suits No. 48-A/64 (renumbered as 25-A/66, 14-A/68 and 4-A/72) was filed initially in the Court of first Civil Judge, Class-II, Hoshangabad and it was registered as Civil Suit No. 48-A/64 which was subsequently renumbered 14-A/68. It was later on returned for want of jurisdiction to be presented to the proper Court. It was re-presented to the Court of Civil Judge, Class-I on 10-5-68. Again it was returned back to the plaintiffs on 18-3-69 for presenting it to the proper Court. Then it was again re-presented on 18-3-69 before the Court of IInd Additional District Judge, Hoshangabad which came to be renumbered as 4-A/72 and finally decided on 22-7-74. Thus, the adverse possession for 12 years was never perfected as the parties were litigating and asserting their possession from 1964 in the previous suit in which a decree was finally passed in the year 1974 on 22nd July and the defendant respondent's title was negatived with respect to 7 acres of land and conditional injunction was granted to come to end on deposit of Rs. 7,000/-. That decree has attained finality. The nature of decree passed had not added hostility to possession but as a matter of fact curtailed right to possess for ever and held that possession was permissive. Injunction has lost efficacy after deposit of Rs. 7,000/-. At no point of time adverse possession came to be asserted, classic requirement of which is nec-vi, nec-clam, nec-precario and the decree passed in the suit 4-A/72 robbed right, title and interest if any of defendant/respondent and made it conditional. Thereafter, within one and half year the instant suit was filed. In the intervening period money was deposited on 25-7-74. Application under Order 21 Rule 35, CPC was moved for restoration of possession. Thus, the defendant respondent's possession was never allowed to be ripened into full ownership by his open, hostile and peaceful possession for 12 years or more. Thus, in the adumbrated circumstances of the case, by no stretch it could be held by the learned single Judge that the ownership was ripened by the adverse possession by defendant respondent by remaining in possession on the strength of the compromise entered into in the year 1964. The said compromise was subject matter of previous suit and was adjudicated upon and decree which attained finality restricted the right to retain possession, till such time Rs. 7,000/- are paid. The effect of the decree was not taken into consideration by the learned single Judge nor effect of the deposit Rs. 7,000/- immediately after 3 days of passing of the decree was taken into consideration.
23. The plea of limitation adverse possession was incorporated by way of amendment in para 14 (a) of the written statement by the defendant/respondent. It has been pleaded to Court that the defendants' predecessor Mishrilal was in possession in his own right from 28-2-63 and the defendant came in possession through him. The plaintiffs have lost their rights, if any, by being out of possession for more than 12 years and the defendants and their predecessor being in possession for more than 12 years, the suit is barred by time.
24. It may further be seen that at the end of para 14, further amendment was incorporated in the written statement by the defendant respondent on 3-9-87. At the end of para 14 (a), it was added that the plaintiff is not entitled to the relief of possession of the suit land as to same is not available to him under the provisions of Section 53A of Transfer of Property Act. The possession of this defendant is protected under the provisions of Section 53A of Transfer of Property Act.
25. It may seen that the plea of adverse possession in case of S.M. Karim Vs. Mst. Bibi Sakina (AIR 1964 SC 1254) it has been laid down that "A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for plea."
26. In the present case the necessary facts constituting the plea of adverse possession were not set forth nor it was mentioned in para 14 (a) of the written statement that the possession was adverse and open hostile and the nature of the right has also not been indicated. A party pleading a prescriptive title must State all the material facts on which that plea has been based. A plea in defence that the plaintiffs suit is barred by lime without stating the fads, is vague. The plea which has been taken in the instant case quoted above in para 14 (a) of the written statement is absolutely vague and does not amount to raising the plea of adverse possession as required under the law. In case of Karimullakhan Vs. Bhanupratapsingh (AIR 1949 NAGPUR 265) a plea without stating the material fact constituting adverse possession was held to be vague. A general plea of limitation and operation over 12 years, is not sufficient to raise the plea of adverse possession. What the defendant respondent has raised in the instant case is a general plea of limitation which is of no avail to him. In case of Ramlochan Singh Vs. Pradip Singh (AIR 1959 PATNA 230) a general plea of limitation was held to be insufficient to raise the plea of adverse possession.
27. It is well settled law that long possession is not necessarily adverse and unlawful possession is not synonymous with adverse possession, as held in case of S.M. Karim (supra) and in case of Budhuram Vs. Soman (1963 JLJ Short Note 217).
28. It may be also be seen that there is another hindrance created by the defendant respondent. He has taken the plea of Section 53A of Transfer of Property Act. When he has taken such a plea for part performance, it is implicit that his possession is lawful under the agreement when possession is traceable under the agreement and is by lawful origin, plea of adverse possession would not be available in such circumstances. In case of Mohan Lal Vs. Mira Abdul Gaffar (AIR 1996 SC 910) wherein claim was based on Section 53A of Transfer of Property Act, it was held that such possession is lawful and plea of adverse possession would not be available to a person claiming at the same time possession under Section 53A of Transfer of Properly Act. Thus, the plea of adverse possession has to fail on this ground also.
29. It may further be seen that the decree was passed on 22-7-74 and the right was given to the plaintiffs to obtain the possession on payment of Rs. 7,000/- in accordance with the decree. The money was deposited within 3 days. But, the defendant respondent did not agree to receive the money. Hence, necessity arose to file the instant suit. The adverse possession is possession which is in contravention of right of another to such possession, hence, possession cannot be adverse against a person who is not entitled to possession. By process of law and the effect of the decree, the right was given to take possession on payment of Rs. 7,000/- and the Court directed in process under Order 21 Rule 35, CPC and Section 151, CPC proceedings to file fresh suit for possession as persons are not entitled in India to take law in their own hands for obtaining possession and law respects the possession and possession has to be obtained by process of law. Thus, the present plaintiffs could not have obtained the possession without filing the suit and they were not having the present right of possession after deposit of money, immediately thereafter they had filed the present suit in February, 1976. Thus, the plea of adverse possession cannot be taken successfully by the defendant respondent.
30. The provisions of Order 6 Rule 6, CPC are of no rescue to the defendant respondent in the present case as the facts enabling the performance of the direction of the decree were clearly set out by the plaintiffs in para 11 of the plaint. Thus, the judgment and decree passed by learned single Judge are liable to be set aside and that of the Trial Court deserves to be restored.
31. In the result the appeal is allowed. The judgment and decree passed by the learned single Judge in First Appeal No. 145/87 dated 17-3-94 is set aside and that of the Trial Court dated 4-9-87 is restored. The costs of the present appeal shall be borne by the defendants respondents which we quantify at Rs. 5,000/-.
32. LPA allowed.