Madhya Pradesh High Court
Brijwasi Singh vs Ramkaran Singh & Anr. on 12 December, 2022
Author: Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 821 of 1995
Between:-
BRIJWASI SINGH SON OF BADRI SINGH
AGED ABOUT 50 YEARS OCCUPATION-
CULTIVATOR, RESIDENT OF VILLAGE-
AMWA, POST OFFICE-SAGAR, TAHSIL
HUZUR, DISTRICT REWA (M.P.) SINCE
DEAD THROUGH LRS
1. RAMTAHAL SINGH S/O BRIJWASI
SINGH, AGED ABOUT 70 YEARS, R/O
VILLAGE AMWA, TAHSIL HUZUR, REWA
(MP)
2. JAGDEESH SINGH S/O BRIJWASI SINGH,
AGED ABOUT 65 YEARS, R/O VILLAGE
AMWA, TAHSIL HUZUR, REWA (MP)
3. SHRINIWAS S/O BRIJWASI SINGH, AGED
ABOUT 55 YEARS, R/O VILLAGE AMWA,
TAHSIL HUZUR, REWA (MP)
4. YOGENDRA SINGH S/O BRIJWASI
SINGH, AGED ABOUT 48 YEARS, R/O
VILLAGE AMWA, TAHSIL HUZUR, REWA
(MP)
5. SHUBHAUAA SINGH D/O BRIJWASI
SINGH, AGED ABOUT 65 YEARS, W/O
RAMDEEN SINGH, R/O VILLAGE
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Signed by: S HUSHMAT
HUSSAIN
Signing time: 12/13/2022
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HARDUA, POLICE STATION AND TAHSIL
SEMARIA DISTRICT REWA (MP).
6. SHYAMWATI SINGH D/O BRIJWASI
SINGH, AGED ABOUT 68 YEARS, W/O
RAMMILAN SINGH, R/O VILLAGE
HARDUA, POLICE STATION AND TAHSIL
SEMARIA DISTRICT REWA (M.P.)
7. RAMVATI SINGH D/O BRIJWASI SINGH,
AGED ABOUT 50 YEARS, W/O RAMDEEN
SINGH, R/O VILLAGE HARDUA, POLICE
STATION AND TAHSIL SEMARIA
DISTRICT REWA (M.P.)
....................................APPELLANTS
(BY SHRI RAVISH AGRAWAL, SENIOR COUNSEL WITH SHRI SAKET MALIK-ADVOCATE)
AND
1. RAMKARAN SINGH SON OF RAM
MILAN AGED ABOUT 42 YEARS,
CULTIVATOR (SINCE DEAD THROUGH
LRS)
1 (i) SAROJ SINGH D/O LATE RAMKARAN
SINGH R/O VILLAGE AMWA, TEHSIL
HUZUR DISTRICT REWA (M.P.)
1(ii) SHISHUPAL SINGH S/O LATE
RAMKARAN SINGH R/O VILLAGE AMWA,
Signature Not Verified
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HUSSAIN
Signing time: 12/13/2022
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TEHSIL HUZUR DISTRICT REWA (M.P.)
1(iii) HEMLATA SINGH D/O LATE
RAMKARAN SINGH R/O VILLAGE AMWA,
TEHSIL HUZUR DISTRICT REWA (M.P.)
1(iv) RANBAHADUR S/O LATE
RAMKARAN SINGH R/O VILLAGE AMWA,
TEHSIL HUZUR DISTRICT REWA (M.P.)
1(v) CHETNA SINGH D/O LATE
RAMKARAN SINGH R/O VILLAGE AMWA,
TEHSIL HUZUR DISTRICT REWA (M.P.)
1(vi) DHIRENDRA SINGH S/O LATE
RAMKARAN SINGH R/O VILLAGE AMWA,
TEHSIL HUZUR DISTRICT REWA (M.P.)
2. PARASNATH SINGH, SON OF
RAMHIT, AGED ABOUT 60 YEARS,
CULTIVATOR.
BOTH RESIDENTS OF VILLAGE AMWA,
POST OFFICE AGRA, TAHSIL HUZUR,
DISTRICT REWA (M.P.).
......................RESPONDENTS
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(BY SHRI RAMSUPHAL CHATURVEDI-ADVOCATE FOR RESPONDENTS)
.............................................................................................................................................
Reserved on : 07/12/2022
Pronounced on : 12/12/2022
.............................................................................................................................................
This second appeal has been heard and reserved for judgment, coming on for
pronoucement this day, the Court passed the following:
JUDGMENT
This second appeal is filed by the plaintiff Brijwasi Singh (since died, now LRs
Ramtahal Singh and others) challenging the judgment and decree dated 29.09.1995
passed by 1st Additional District Judge, Rewa in Civil Appeal No.20-A/1994
confirming the judgment and decree dated 22.03.1994 passed by 2nd Civil Judge
Class II, Rewa in Civil Suit No.516-A/1986 whereby dismissing the suit filed for
permanent injunction and thereafter by amendment for removal of construction
allegedly raised over the land survey no.585 area 0.35 acre situated in Village Amwa,
Tahsil Huzur, District Rewa.
2. In short the facts are that the original plaintiff Brijwasi Singh instituted a suit
for permanent injunction with regard to land survey no.585 area 0.35 acre claiming
himself to be owner and in possession of the land on the basis of judgment and decree
dated 08.07.1981 passed in Civil Suit No.5-A/1979. It is alleged in the plaint that the
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original defendants (Ramkaran and Parasnath) were permitted to reside in the house
by the plaintiff but on 09.06.1984, the defendants forcibly started digging foundation
for the purpose of raising construction of a small room and upon protest, they did not
care whereas no sale of land has been made in favour of defendants. On the aforesaid
and inter alia allegations, the suit was filed.
3. Defendants appeared and filed written statement claiming themselves to be
owner and in possession of the disputed land on the basis of exchange of land.
Defendants also contended that they are in possession of the land for more than 45
years, therefore, right of the plaintiff, if any, has already been extinguished.
Defendants were not party in the previous civil suit and the present suit filed by the
plaintiff is barred by limitation, which has been filed on the basis of false set of facts.
On inter alia contentions the suit was prayed to be dismissed.
4. On the basis of pleadings of the parties, learned trial Court framed issues and
recorded evidence of the parties and vide its judgment and decree dated 22.03.1994
held that the plaintiff is not owner/bhoomiswami of the land in question which was
also not given by him to the defendants as licencee. While deciding issue no.4(a), it
was held that the defendants 1-2's grandfather received the land in question in
exchange and since then, the defendants are in possession. With these findings, the
suit was dismissed. Upon appeal filed by the plaintiff, learned first appellate Court
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vide its judgment and decree dated 29.09.1995 dismissed the appeal and confirmed
the judgment and decree of learned trial Court.
5. This Court vide order dated 26.03.1996 admitted the second appeal on the
following substantial questions of law :-
"1. Whether despite admission that the land in question as well as the
house in possession of respondent initially belong to the father of the
appellant and the respondent bound to implead the proof of exchange of land
as claimed by the respondent ?
2. Whether in view of the judgment and decree of the C.S. no.5-A/79 dt.
08.07.1981, respondents are stopped from denying the title of the appellant ?
3. Whether the Courts below were right in concluding the suit land was in
possession of the respondent in absence of any clear demarcation of land ?"
6. Learned senior counsel for the appellants submits that on account of taking
plea of exchange by the defendants and in view of the judgment and decree dated
08.07.1981 passed in Civil Suit No.5-A/1979 (Ex.P/1 & P/2), title of the plaintiff
over the suit land is clear and the defendants/respondents are estopped from denying
title of the appellants and in absence of any clear demarcation of the land, learned
Courts below have erred in holding that the suit land was in possession of the
respondents/defendants. By placing reliance on the decision of Supreme Court in the
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case of Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah (1998) 3 SCC
331, learned senior counsel for the appellants submits that judgment and decree dated
08.07.1981 passed in Civil Suit No.5-A/1979 can be considered in evidence as a
proof of title even though the defendants were not party to it. He further submits that
in the light of plea of exchange taken by defendants, entire burden was on them to
prove their ownership over the land in question and in absence thereof, suit filed for
permanent injunction ought to have been decreed and as the defendants have raised
construction during pendency of suit, the plaintiff was entitled for decree of removal
of construction. With these submissions, he prays for allowing the second appeal.
7. Learned counsel for the respondents supports the impugned judgment and
decree passed by learned Courts below and prays for dismissal of the appeal with the
contentions that substantial questions of law framed by this Court do not arise in the
second appeal and in presence of concurrent finding of fact with regard to exchange
of the land and long possession of the defendants over the land in question and there
being non-compliance of provision under Order 7 Rule 3 CPC also, learned Courts
below have rightly dismissed the suit and no interference is permissible in the present
second appeal. In support of his arguments, learned counsel placed reliance on the
judgment of this Court dated 13.10.2022 passed in S.A.No.1456/2004 (Amaylal Vs.
Matuk Lal) at Jabalpur.
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8. Heard the learned counsel for the parties and perused the record.
9. From bare perusal of averments made in the plaint and written statement, it is
clear that there was dispute of title in between the parties, especially in the light of
plea of exchange taken by defendants in the written statement. Further upon raising
of alleged construction by the defendants on the land in question, plaintiff amended
the plaint vide order dated 09.02.1994 but neither in the original plaint nor at the time
of proposing amendment, the relief of declaration of title and/or possession has been
claimed, which in the light of existing pleadings and dispute between the parties was
necessary.
10. In the case of Anathula Sudhakar vs P. Buchi Reddy (Dead) (2008) 4 SCC
594, the Supreme Court has held as under:-
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are
well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered
or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect
his possession against any person who does not prove a better title by seeking a prohibitory injunction.
But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a
suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot
seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or
where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title
of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
11. In the case the plaintiff has tried to take benefit of plea of exchange taken by
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the defendants with the contention that in view of such plea, title of the plaintiff over
the land in question is an admitted fact on the part of defendants but has not taken
any pain to demonstrate the position of land of survey no.1361 regarding which issue
no.4 was framed and decided by learned trial Court in favour of the defendants.
12. It is also apparent that originally the suit was filed only for the relief of
permanent injunction and in para 4 of the plaint itself, plaintiff has alleged that the
defendants were given permission of residence in the house, which has been admitted
by the plaintiff and his witnesses to be situated over the land in question. As such,
since beginning, it was for the plaintiff to seek relief of possession over the
land/property in question.
13. By way of incorporating amendment, the plaintiff has without making any
amendment in the pleadings prayed for relief of removal of construction raised by the
defendants, which infact is a relief of mandatory injunction but at the same time, it is
well settled that the plaintiff in absence of claim of title over the suit property, cannot
be granted relief of mandatory injunction. It is also apparent from the plaint and
record that except mentioning survey number of the land in question, the plaintiff has
not given requisite details about the area covered by the defendants by raising of
alleged construction and further no sufficient details have been given with regard to
the area of house, which was allegedly given by the plaintiff to the defendants for
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residence on license. Fact remains that the plea of license taken by the plaintiff, has
been negated by learned Courts below.
14. Further, learned Courts below have after appreciating the oral and documentary
evidence concurrently found that the defendants are in possession of the entire land,
which findings do not appear to be perverse even in the light of evidence adduced by
the plaintiff. However, no substantial question of law on the ground of perversity of
findings has been framed. Even otherwise, the finding on the question of possession
is a pure finding of fact and is not liable to be interfered with as has been held by
Supreme Court in the case of Mohan Lal Vs. Nihal Singh (2001) 8 SCC 584
(paragraph 11).
15. In view of the aforesaid discussion, decision of Supreme Court in the case of
Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah (1998) 3 SCC 331 is not
applicable to the present case because the facts of this case are entirely different from
the facts of the case in hand. In my considered opinion, the compromise decree
(Ex.P/1 & P/2) to which the defendants were not party, cannot be said to be binding
on the defendants. Even for the sake of arguments, if the said compromise decree is
considered as a proof of title of the plaintiff, then also the instant suit in absence of
relief of possession could not be decreed being not maintainable. In the present case
the plaintiff has also not sought any relief of mandatory injunction against the
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defendants to vacate the suit premises or land in question.
16. In view of the aforesaid discussion and in my considered opinion, all the three
substantial questions of law framed by this Court do not arise in the present second
appeal. Resultantly, second appeal fails and is hereby dismissed. However, no order
as to costs.
17. Interim application(s), if any, shall stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
sh
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