Madhya Pradesh High Court
Harisingh vs Mangilal on 12 July, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
Miscellaneous Petition No.573/2021
(Harisingh & Another versus Mangilal & Others)
Gwalior, Dated: 12.7.2021
Heard through Video Conferencing.
Shri Anand Kumar Gupta, learned counsel for the petitioners.
Shri Sarvesh Kumar Sharma, learned counsel for the respondents.
This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 28.1.2021 passed by Additional District Judge Chachoda, District Guna in Miscellaneous Civil Appeal No.1/2019 thereby affirming the order dated 17.5.2019 passed by the 1 st Civil Judge Class-II Chachoda, District Guna in Civil Suit No.40A/2019. By which the application filed by the petitioners under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure (for brevity "C.P.C") has been dismissed.
The necessary facts for disposal of the present miscellaneous petition in short are that the petitioners have filed a suit for declaration of title and permanent injunction on the ground that they are the joint owners of the agricultural land bearing Survey No.232/1B area 2.061 hectare and Survey No.282/1B area 0.726 hectare alongwith the defendant Nos.3 & 4. It is the case of the petitioners that the plaintiffs as well as the defendant Nos.3 & 4 are the legal heirs of Sukhram. The plaintiffs and one Kallu are the sons of Sukhram. Kallu had already expired way back and the defendant Nos.3 & 4 are the widow and son of Kallu. It is alleged that initially the original number of the land in dispute was 382. Sukhram had 3/4th share whereas Soulal had 1/3rd share. Soulal had sold his share to defendant No.1 Mangilal and defendant No.2 Babulal by registered sale deed executed in the year 1964 and on the basis of the said sale deed, the defendant Nos.1 & 2 2 initiated proceedings for mutation of their names and partition, which was registered as Case No.3A/27/79-80. Although the defendant Nos.1 & 2 succeeded in getting the land partitioned and, therefore, their names were also mutated in the record but the petitioners remained in possession of the same. Since the names of the defendant Nos.1 & 2 were separately recorded in the revenue records, therefore, their joint interest and possession over the suit land with the petitioners came to an end. The defendant Nos.1 & 2 initiated proceedings under Section 250 of the Madhya Pradesh Land Revenue Code, 1959 (for short "M.P.L.R.Code") against Sukhram for possession. During the pendency of those proceedings, Sukhram instituted a suit against the defendant Nos.1 & 2 thereby challenging their sale deed, which was registered as Civil Suit No.275A/1996. The said civil suit was instituted on 13.7.1988 and it was dismissed by order dated 23.12.2003.
It is fairly conceded that during the pendency of the civil suit, an order of temporary injunction was passed against the defendant Nos.1 & 2. It was observed therein that the parties shall maintain the status-quo unless & until the petitioners are dispossessed in accordance with law. The petitioners preferred a Civil Appeal and the same was dismissed. They also preferred Second Appeal No.337/2005 and it was also dismissed by order dated 25.4.2014. It is fairly conceded that in the Civil Appeal as well as in the Second Appeal, there was a direction to the parties to maintain the status-quo. It is also submitted that during the pendency of the civil suit, the proceedings initiated by the defendant Nos.1 & 2 under Section 250 of the M.P.L.R.Code were allowed and the Sub Divisional Officer by order dated 12.12.1988 passed in Case No.28&29Appeal/87-88 found that the defendant Nos.1 & 2 are entitled for possession of their respective shares. It is also alleged that since an order of possession was passed in favour of the 3 defendant Nos. 1 & 2 on 12.12.1988, therefore, the defendant Nos.1 & 2 were entitled to initiate the proceedings for possession within twelve years of the said order i.e.12.12.1988. However, the defendant Nos.1 & 2 didnot initiate the proceedings and accordingly the petitioners have perfected their title by way of the adverse possession as they were in open, hostile and continuous possession, which was within the knowledge of the defendant Nos.1 & 2. It is further pleaded that for the first time in the year 2004, the defendant Nos.1 & 2 initiated the proceedings for possession and since Second Appeal No.337/2005 was pending and the defendant Nos.1 & 2 were not entitled to get possession as the proceedings were initiated after a period of twelve years, therefore, the High Court passed a temporary injunction order in Second Appeal No.337/2005 in favour of the petitioners. It is further submitted that the defendant Nos.1 & 2 did not take any action for obtaining the possession but again they approached the Tahsil Court for possession on the basis of the order of the Sub Divisional Officer dated 12.12.1988, which was registered as Case No.2/B12/2016-17.
The petitioners also filed an application under Order XXXIX Rule 1 & 2 read with Section 151 of the C.P.C for grant of temporary injunction. The application was vehemently opposed by the defendant Nos.1 & 2.
The Trial Court by order dated 17.5.2019 passed in Civil Suit No.40A/2019 rejected the said application.
Being aggrieved by the order of the Trial Court, the petitioners preferred a Miscellaneous Civil Appeal No.1/2019 under Order XLIII Rule 1 of the C.P.C, which too was dismissed by order dated 28.1.2021 by the Additional District Judge Chachoda, District Guna.
Challenging the order passed by the Court below, it is submitted by learned counsel for the petitioners that since the order of eviction was 4 passed by the Sub Divisional Officer in favour of the defendant Nos.1 & 2 on 12.12.1988 in Case No.28&29 Appeal/87-88 and the defendant Nos.1 & 2 did not take any initiative to take possession of their share, therefore, their right to file the suit came to an end in the year 2000. It is further submitted that only in the year 2004, the defendant Nos.1 & 2 started proceedings under the M.P.L.R.Code and, therefore, the same was not maintainable as the petitioners have already perfected their title by way of the adverse possession.
Per contra, learned counsel for the respondent Nos.1 & 2 have vehemently opposed the submissions made by learned counsel for the petitioners. He submitted that in order to establish the right of adverse possession over the suit land, the party must prove that it was in open, hostile and continuous possession, which was within the knowledge of the true owner. It is submitted that in the present case, the petitioners had instituted a civil suit on 13.7.1988 wherein the order of temporary injunction was passed. Although the said civil suit was dismissed in the year 2003 but in the civil appeal filed by the petitioners, the Appellate Court once again granted temporary injunction. Thereafter, Second Appeal No.337/2005 was filed and it was dismissed by order dated 25.4.2014 and in the said second appeal also, the order of temporary injunction was in existence and, therefore, it cannot be said that the possession of the petitioners was open, hostile and continuous and it was within the knowledge of the respondent Nos.1 & 2 as the matter was subjudice.
I have heard learned counsel for the parties.
In order to establish the right of adverse possession, the person must prove that he was in open, hostile and continuous possession of the property in dispute, which was within the knowledge of the real owner. The long 5 possession of the property does not mean that the person in possession has perfected his title by way of adverse possession. In the present case, when an order of partition was passed, the petitioners immediately instituted a civil suit in the year 1988 and obtained an injunction order. The said injunction order remained in force till 25.4.2014 i.e. when Second Appeal No.337/2005 was dismissed.
The Supreme Court in the case of Tribhuvanshankar v. Amrutlal, reported in (2014) 2 SCC 788 has held as under :
34. The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. It has been held in Secy. of State for India in Council v. Debendra Lal Khan that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.
35. In S.M. Karim v. Bibi Sakina, it has been ruled that: (AIR p. 1256, para 5) "5. ... 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."
36. In Karnataka Board of Wakf v. Govt. of India it has been opined that: (SCC p. 785, para 11) "11. ... Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner.
It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
Thereafter, the learned Judges observed thus: (Karnataka Board of Wakf case, SCC p. 785, para 11) "11. ... Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what 6 date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
37. It is to be borne in mind that adverse possession, as a right, does not come in aid solely on the base that the owner loses his right to reclaim the property because of his wilful neglect but also on account of the possessor's constant positive intent to remain in possession. It has been held in P.T. Munichikkanna Reddy v. Revamma.
Under these circumstances, this Court is of the considered opinion that since the Civil Suit was pending between the parties and the question of title was subjudice before the Court and there was an order of temporary injunction passed by the Court of competent jurisdiction, therefore, it can be said that the petitioners had succeeded in protecting their possession by virtue of the interim order and didnot perfect their title by way of adverse possession.
Accordingly, no jurisdictional error could be pointed out by learned counsel for the petitioners in the order dated 28.1.2021 passed by the Additional District Judge Chachoda, District Guna in Miscellaneous Civil Appeal No.1/2019 as well as in the order dated 17.5.2019 passed by the 1 st Civil Judge Class-II Chachoda, District Guna in Civil Suit No.40A/2019.
Resultantly, this miscellaneous petition fails and is hereby dismissed. The interim order granted on earlier occasion is hereby vacated.
(G.S. Ahluwalia) Judge amit Digitally signed by AMIT JAIN Date: 2021.07.16 15:35:50 +05'30'