Rajendra Prasad vs Dwarika Prasad And Ors
2021 Latest Caselaw 895 Chatt

                               1

                                                          NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                      SA No.301 of 2012

   Rajendra Prasad, S/o Khoman Lal Chandrakar,
    Aged About 43 Years, R/o Sisdevari, Tahsil
    Palari, Dist. Raipur, Chhattisgarh

                                              ­­­­ Appellant

                           Versus

  1. Dwarika Prasad, S/o Shriram Chandrakar, Aged
     About 80 Years

  2. Goverdhan, S/o Dwarika Prasad, Aged About 42
     Years

  3. Khelan,    S/o    Dwarika     Prasad,    Aged    About   45
     Years

  4. Rajendra, S/o Chhedilal, Aged About 25 Years

  5. Mohan,    S/o    Birij   Chandrakar,     Aged    About   50
     Years

  6. Ishwari, S/o Kishun, Aged About 40 Years

  7. Badri, S/o Shriram, Aged About 60 Years

    All R/o Village Sisdewari,               Tahsil    Palari,
    District Raipur, Chhattisgarh

  8. State of Chhattisgarh, Through Collector,
     Raipur, Chhattisgarh [Now District Balouda
     Bazar (C.G.)]

                                             ­­­­ Respondents

For Appellant Mr. Vishnu Koshta and Mr. Shobhit Koshta, Advocates

For Respondent­State Mr. Sunil Otwani, Addl. AG

Hon'ble Justice Shri Sanjay K. Agrawal

Order On Board

06/07/2021

1. Heard on admission and formulation of

substantial question of law in this second

appeal preferred by the appellant/plaintiff.

2. By the impugned judgment and decree, the First

Appellate Court has dismissed the appeal

preferred by the appellant/plaintiff vide

judgment and decree dated 25.07.2012 passed by

the learned 2nd Upper District Judge, Baloda

Bazar, District Raipur (C.G.) in Civil Appeal

No.112A/2011 affirming the judgment and decree

of the Trial Court dated 04.07.2011 passed by

the learned Civil Judge Class­II, Baloda Bazar

(C.G.) in Civil Suit No.53­A/2010, whereby the

learned Trial Court dismissed the suit

preferred by the appellant/plaintiff.

3. Mr. Koshta, learned counsel for the

appellant/plaintiff, would submit that both

the Courts below have concurrently erred in

holding that Ex­P/1 is agreement to sale,

pursuant to which the appellant came in

possession of the suit land bearing Khasra

No.967/2, area 0.076 hectare, as such the

possession is permissive and the plaintiff is

not entitled for decree of declaration of

title and permanent injunction, as the

plaintiff has perfected the title by way of

adverse possession by recording a finding

perverse to the record. As such, the appeal

involves substantial question of law for

determination and deserves to be admitted for

hearing.

4. I have heard learned counsel for the

appellant/plaintiff, considered his

submissions made herein­above and also went

through the records with utmost

circumspection.

5. Admittedly, the defendant No.1 was the owner

of the suit property. He is said to have

executed the agreement to sale on 07.02.1988

(Ex­P/1) and delivered possession to the

plaintiff upon receipt of Rs.10,380/­ but

thereafter he failed to execute the sale deed.

The plaintiff filed a suit on 14.08.2010 for

declaration of title and permanent injunction

stating inter­alia that though he has come in

possession vide Ex­P/1 dated 07.02.1988 but

his possession has ripened into the adverse

possession, as such he is entitled for

declaration of title and permanent injunction,

which the defendant Nos.1 & 3 to 7 opposed by

filing written statement inter­alia stating

that no agreement has been executed, as such

the plaintiff has no right and title over the

suit land.

6. The Trial Court upon appreciation of oral and

documentary evidence available on record

dismissed the suit holding that the plaintiff

has not perfected his title by way of adverse

possession, which the First Appellate Court

has also affirmed.

7. Both the Courts below have rightly held that

the plaintiff has not perfected his title by

way of adverse possession, particularly in

view of the fact that it is case of the

plaintiff that he came in possession pursuant

to agreement to sale (Ex­P/1) and it is well

settled law that possession pursuant to the

agreement to sale is always permissive

possession and cannot be said to be adverse

possession against the true owner. (See :

Mohan Lal (deceased) through his LRs Kachru

and others vs Mirza Abdul Gaffar and

another1). The said finding recorded by the

two Courts below is the finding of fact based

on the material available on record, which is

neither perverse nor contrary to record.

8. I do not find any substantial question of law

for determination in this second appeal. It

deserves to be and is hereby dismissed in

limine without notice to the other side. No

order as to cost (s).

                                                                 Sd/­
                                                          Sanjay K. Agrawal
                                                                Judge
Nirala




    1    (1996) 1 SCC 639