Harisingh vs Mangilal
2021 Latest Caselaw 3883 MP

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         THE HIGH COURT OF MADHYA PRADESH
                         RP-551-2021
         Hari Singh and another Vs. Mangilal and others

                    Through Video Conferencing

Gwalior, Dated : 03-08-2021

      Shri Anand Kumar Gupta, Counsel for the applicants.

      This review application under Order 47 Rule 1 read with

Sections 114, 151 of CPC has been filed seeking review of order

dated 12.07.2021 passed by this Court in Miscellaneous Petition No.

573/2021, by which the petition filed by the petitioner under Order

227 of the Constitution of India against the order dated 28.01.2021

passed by Additional District Judge, Chachoda District Guna in

Miscellaneous Civil Appeal No.1/2019 was dismissed.

      It is submitted by the counsel for the petitioner that the

petitioner had relied upon the judgment passed by the Supreme Court

in the case of Balkrishan Vs. Satyaprakash and others reported in

2001 Revenue Nirnay 139 and since the said judgment has escaped

from the notice of the Court and the order under review has been

passed in ignorance of the said judgment, therefore, in the light of the

judgment passed by this Court in the case of Commissioner of Sales

Tax Vs. Hukumchand Mills reported in 2004 (3) MPHT 22, that the

law laid down by the Supreme Court is binding on all the Courts and

Tribunals and it is the duty of the High Court and Subordinate Courts

to follow the decision of the Supreme Court and to ignore the well

settled law by way of judicial pronouncement of the Supreme Court
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         THE HIGH COURT OF MADHYA PRADESH
                         RP-551-2021
         Hari Singh and another Vs. Mangilal and others

and to pass order contrary to it would be gross impropriety. Thus, it is

submitted that there is an error apparent on the face of the record

warranting review of order dated 12.07.2021 passed in MP

No.573/2021. It is further submitted that, by order dated 29.11.1991,

the Trial Court had granted liberty to the respondents to recover the

possession in accordance with law, but as the respondents did not

initiate any proceedings for possession within 12 years of the said

order, therefore, initiation of proceedings in the year 2004 had

become barred and the petitioners had perfected their title by adverse

possession.

Heard the learned counsel for the applicant.

So far as the above-mentioned submission regarding adverse

possession made by the counsel for the applicant is concerned, it is

true that similar submission was made by Shri Gupta at the time of

hearing of MP No.573/2021 and that submission is also mentioned in

the order under review.

The relevant part of the order under review in respect of above-

mentioned submission of the applicant with regard to non-initiation

of proceedings for 12 years is reproduced as under:-

"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

THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

dispossessed in accordance with law........"

"......It is also alleged that since an order of possession was passed in favour of the 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 did not 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......"

Thus, it is not the case of the applicant that any submission

made by the applicant during the course of argument in MP

No.573/2021 had escaped from the notice of this Court.

It is submitted by Shri Gupta that the observation made by this

Court that there was an order of temporary injunction passed by the

Court of competent jurisdiction is incorrect as there was no order of

temporary injunction, but the respondents were granted liberty that in

case, if they so desire, then they can initiate proceedings for recovery

of possession in accordance with law.

The submission made by the counsel for the applicant cannot

be accepted.

The relevant portion of order dated 29.11.1991 reads as under:-

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THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

xbZ gSA vr% bu ifjfLFkfrvksa esa izfroknhx.k dks fof/k iw.kZ dk;Zokgh djus ,oa fof/kiwoZd dCtk izkIr djus dk vf/kdkj jgrk gS ftlls izfroknhx.k dks oafpr ugha fd;k tk ldrkA fof/kiw.kZ rjhds ls dCtk izkIr djus ls jksds tkus gsrq oknh }kjk dksbZ lgk;rk Hkh ugha pkgh xbZ gS dsoy rdZ ds le; bl izdkj dh lgk;rk dh ekax dh xbZ FkhA jktLo U;k;ky; ds vkns'k esa dCtk fnyk;s tkus dks fujLr djus dh Hkh dksbZ lgk;rk ugha pkgh xbZ gSA vr% oknh ds vkosnu Lohdkj dj izfroknh Ø- 1 o 2 ds fo:) izdj.k ds vafre fujkdj.k rd ;k vU; vkns'k rd bl vk'k; dh vLFkkbZ fu"ks/kkKk tkjh dh tkrh gS fd os fookfnr Hkwfe esa oknh ds vkf/kiR; esa vukf/kd`r :i ls dksbZ n[ky u rks Lo;a djsa u vU; ls djkosaA izfroknhx.k jktLo U;k;ky; esa fof/k vuqlkj dk;Zokgh djus ,oa U;k;ky; ds vkns'k ls dCtk izkIr djus Lora= jgsaxsA izdj.k esa okn i= fufeZr fd;s x;s tks i{kdkjksa dks cryk;s x;sA^^

Thus, it is clear that there was an injunction order with liberty

to respondents to recover possession in accordance with law.

It is undisputed that after the order of possession was passed

by the Revenue Court, the petitioner instituted a suit for declaration

of title and permanent injunction. If the respondent had filed any

application for restoration of possession then, in order to pass an

order for delivery of possession, the Revenue Authorities were under

obligation to give a finding that the petitioner is not the title holder or

owner of the disputed land and during the pendency of the suit, it was

not possible for Revenue Court to give such a finding. Once the

dispute regarding ownership was already subjudiced before the Trial

Court, then it cannot be said that the respondents by approaching the

Revenue Courts could have obtained an order of possession and

THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

could have executed the same against the petitioners.

The relevant findings given by this Court are as under:-

"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 did not perfect their title by way of adverse possession."

This Court while dismissing MP No. 573/2021 has given a

finding that since the question of title was subjudiced, therefore, the

petitioners succeeded in protecting their possession by virtue of

interim order and did not perfect their title by way of adverse

possession. The said finding cannot be said to be an error apparent on

the face of the record.

Further in order to claim adverse possession, the petitioner

should have accepted that the respondents are the true owner. The

Supreme Court in the case of Dagadabai (Dead) By Legal

Representatives Vs. Abbas alias Gulab Rustum Pinjari reported in

(2017) 13 SCC 705 has held as under:-

"16. Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea". In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession

THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.

17. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.

18. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff."

Undisputedly the petitioner had not accepted the title of the

respondents, but had filed the civil suit for declaration of title. Thus,

if the petitioners had succeeded in protecting their possession, still it

cannot be said that they had perfected their title by adverse

possession.

THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

It is incorrect to say that this Court had passed the order under

review by ignoring the law laid down by the Supreme Court in the

case of Balkrishan (supra).

The Supreme Court in the case of Balkrishan (supra) has held

as under:-

"11. In our view this conclusion of the High Court is erroneous. The fact remained that in spite of order of the Tehsildar against the appellant which was not acted upon, nor executed, the appellant continued in possession of the suit land and, therefore, the continuity of his possession of the suit land was neither interrupted nor lost. Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession."

It is clear from the facts of the above-mentioned case that after

an order of possession was passed by the Revenue Court, no other

proceedings were pending in any other Court of law and under these

circumstances, it was held that even after the order of possession was

passed by the Revenue Court, the same was never acted upon nor

executed, therefore, the party in possession is entitled to claim

adverse possession on the ground of continuity of his possession.

The facts of the present case are distinguishable. In the present

case, after an order of possession was passed by the Revenue Court,

the petitioners immediately instituted a civil suit and in the said civil

suit, order dated 29.11.1991 was passed and temporary injunction

THE HIGH COURT OF MADHYA PRADESH RP-551-2021 Hari Singh and another Vs. Mangilal and others

was granted to the petitioner and the respondents were restrained

from interfering with the peaceful possession of the petitioners unless

and until petitioners are dispossessed in accordance with law.

Under these circumstances, this Court is of the considered

opinion that there is no error apparent on the face of the record. It is

really unfortunate that the petitioner own his own notions and

without considering the distinguishable feature in the facts of the

present case as well as in the facts of the case of Balkrishan (supra)

has come up with a case, by alleging that there was no injunction by

order dated 29.11.1991. The petitioners cannot pick one line from

here and there, by ignoring the whole order.

Be that whatever it may.

Since the applicant has failed to point out any error apparent

on the face of the record, no case is made out for review as it is well

established principle of law that under the garb of review, this Court

cannot reopen its own order on merits. If the applicant is of the view

that this Court has passed an erroneous order, then they have liberty

to assail the same before the higher forum.

The review petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.08.04 15:34:24 +05'30'