The division judge bench of Justice M.R. Shah and Justice Krishna Murari of the apex court in the case of Kesar Bai Vs Genda Lal & Ors held that once the substantial question of law on adverse possession was held in favour of the appellant – original defendant No.1 and the title/ownership claimed on the basis of the Sale Deed was negated by all the Courts below, thereafter the possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs.
BRIEF FACTS
The factual matrix of the case is that the suit was filed by the original plaintiff against the defendant with regard to the declaration of ownership and the suit possession. The original plaintiff claimed the title ownership as per the basis of the sale deed in the favour of their father and the husband. The plaintiff also claimed the titled on the basis of the adverse possession. Thereafter, the suit was dismissed by the trial court. The appeal was preferred before the first appellate court. The first appellate court held that the plaintiffs shall not get any right on the basis of the Sale deed, and decreed the suit for permanent injunction observing that the plaintiffs are in possession of the suit land. The First Appellate Court also held that therefore, the plaintiffs have perfected their title by way of adverse possession. The First Appellate Court decreed the suit for title on adverse possession and issued the decree of permanent injunction restraining the defendant No.1 – appellant herein from interfering with the possession of the plaintiffs. The appellant herein – original defendant No.1 filed the second appeal before the High Court.
The High Court framed the following substantial question of law:
"Whether the First Appellate Court has erred in holding that the plaintiff has perfected his title on the disputed land by adverse possession?"
The high court didn’t interfere with the first appellate court and made the decision in the favour of the plaintiff.
The learned counsel appearing on behalf of the appellant has contended that the plaintiff filed the suit for declaration claiming ownership on the basis of the sale deed and also through adverse possession. It is submitted that all the Courts below had negated the claim of the original plaintiffs on the basis of the registered sale deed. It is submitted that thereafter the only question on behalf of the plaintiffs was the claim on the basis of the adverse possession. It is also submitted that the ownership based on sale deed and plea of adverse possession, both, are contrary to each other and plaintiffs cannot be permitted to take the same plea at the same time, thereafter the High Court has dismissed the appeal and confirmed the judgment and order passed by the First Appellate Court decreeing the suit for title and also passed the decree for permanent injunction. Further, it is claimed that the High Court did not understand that the plaintiffs could not obtain their title through adverse possession once it was determined that they were not the owner. They can only be considered an encroacher if they possess the property in question. Accordingly, it is claimed that both the First Appellate Court and the High Court made grave mistakes when they decided to grant the permanent injunction in favour of the plaintiffs and against the defendants.
COURT’S OBSERVATION
The apex court held that in that view of the matter and once the substantial question of law on adverse possession was held in favour of the appellant – original defendant No.1 and the title/ownership claimed on the basis of the Sale Deed was negated by all the Courts below, thereafter the possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs. Under the circumstances, the High Court has materially erred in dismissing the appeal and confirming the judgment and order passed by the First Appellate Court. The judgment and order passed by the high court and the first appellate court was hereby quashed and set aside.
CASE NAME- Kesar Bai Vs Genda Lal & Ors
CITATION- CIVIL APPEAL NO. 7129 OF 2022
CORUM- Justice M.R. Shah and Justice Krishna Murari
DATE- 14.10.22
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