Omkar vs Dinesh
2022 Latest Caselaw 7833 MP

                                                        1
                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                    HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 15th OF JUNE, 2022

                                          SECOND APPEAL No. 147 of 2015

                              Between:-
                              OMKAR S/O BUDDHU, AGED ABOUT 46 YEARS,
                              VILL. PALADAUN    TEH.  CHAND    DISTT.
                              CHHINDWARA (M.P.)

                                                                                     .....APPELLANT
                              (BY SHRI BHANU PRATAP YADAV-ADVOCATE )

                              AND

                      1.      DINESH S/O BALRAM SONI, AGED ABOUT 36
                              YEARS, R/O ROYAL CHOWK CHHINDWARA,
                              TEH. AND DISTT. CHHINDWARA (M.P.)

                      2.      GHOODO S/O JHADU LODHI R/O VILLAGE
                              PALADAUN, TEH. CHAND, DISTT. CHHINDWARA
                              (M.P.)

                      3.      TAHSILDAR CHAND TEH. KARYALAYA CHAND,
                              TEH. CHAND, DISTT. CHHINDWARA (M.P.)

                      4.      STATE OF M.P., THROUGH              COLLECTOR
                              C H H I N D WA R A , OFFICE OF      COLLECTOR,
                              CHHINDWARA (M. P.)

                                                                                  .....RESPONDENTS
                              ( SHRI R. MATHAI, PANEL LAWYER FOR RESPONDENT NO.3 AND
                              4.)

                            This appeal coming on for admission this day, th e court passed the
                      following:
                                                         ORDER

Heard on the question of admission.

Signature SAN Not This second appeal has been filed under Section 100 of CPC by the Verified

Digitally signed by appellant/plaintiff challenging the concurrent judgment and decree passed by the KRISHAN KUMAR CHOUKSEY Date: 2022.06.17 15:20:52 IST

learned courts below.

2. Learned trial Court vide its judgment and decree dated 29.3.2014 passed in Civil Suit No.110-A/2013 dismissed the suit of the plaintiff/appellant holding that plaintiff is not owner/bhoomiswami or in possession of the suit land and has also not acquired any title on the basis of adverse possession. Upon appeal learned 4th Additional District Judge, Chhindwara has affirmed the judgment and decree of the trial Court vide its judgment and decree dated 20.12.2014.

3. Learned counsel for the appellant submits that he came in possession of the land on the basis of an agreement of sale dated 5.6.1999

(Ex.P.6) whereby the respondent No.2/defendant-Ghoodo agreed to sell the disputed land, who later-on sold the disputed land to the respondent No.1/defendant No.1-Dinesh without delivery of possession. Learned counsel for the appellant submits that he has acquired title on the basis of adverse possession because after agreement of sale dated 5.6.1999, the plaintiff has remained in possession and till filing of the suit on 27.11.2012, no action for dispossession was taken by the defendant No.2 Ghoodo. He further submits that the order dated 16.10.2012 (Ex.P.4) passed on the application of defendant No.1 is illegal because he was not in possession of the land and came in possession only after execution of sale deed dated 13.10.2011 (Ex.P.2) by defendant No.2 in favour of defendant No.1. He further submits that plaintiff being in possession of the disputed land is entitled for the relief of permanent injunction till his eviction by due process of law. He further submits that Ghoodo (D.W.3) has admitted possession of the plaintiff over the disputed land. Accordingly, he prays for admission of this appeal.

4. No one is appeared on behalf respondent No.1 and 2, though

served and represented through duly engaged counsel.

5. Shri R. Mathai, learned Panel Lawyer for respondent No.3 and 4.

6. Heard the learned counsel for the appellant and perused the record.

7. Bare perusal of the agreement dated 5.6.1999 (Ex.P.6) shows that at the time of agreement only an amount of Rs.24,000/- was paid and rest of the amount of Rs.1,25,000/- was required to be paid at the time of execution and registration of the sale deed. Learned counsel for the appellant has pointed out that later-on an amount of Rs.80,000/- was also paid, which is mentioned on the back side of the agreement and thereafter only an amount of Rs.45,000/- was to be paid. As such it is clear from the record that plaintiff got the right to file the suit for specific performance on the basis of this agreement, which he did not file. It is well settled law that agreement of the sale does not confer any title on the purchaser and it gives the right to file suit for specific performance, in absence of which nothing can be said in favour of the plaintiff.

8. The plaintiff has taken another plea of adverse possession, which has not been found proved by learned courts below. It is also well settled law that if the plaintiff has entered on the land on the basis of agreement, then such possession being permissible, he cannot take the plea of adverse possession, as has been held by Hon'ble Apex Court in the case of T. Anjanappa and

others Vs. Sonalingappa and another (2006) 7 SCC 570. Accordingly, the Courts below have rightly not granted any relief to the plaintiff on the basis of adverse possession.

9. As far as the relief of permanent injunction is concerned upon application filed by the defendant No.1 Dinesh under Section 250 of Madhya

Pradesh Land Revenue Code 1959, the order dated 16.10.2012 (Ex.P.4) was passed after giving due opportunity of hearing to the plaintiff Omkar whereby it was found that the plaintiff has dispossessed the defendant No.1. Although this order has also been challenged by the plaintiff in the present civil suit but in view of the fact that the plaintiff has not been found owner/bhoomiswami of the land in question on the basis of adverse possession or on the basis of agreement of sale dated 5.6.1999, hence, no relief of permanent injunction can be granted because there is already an order passed by the competent Court under Section 250 of M.P.L.R.C.

10. In view of the aforesaid no illegality or perversity in the judgment and decree of the Courts below is found and this appeal does not involve any substantial question of law and is hereby dismissed in limine under Order 41 Rule 11 of CPC.

11. There shall be no order as to costs.

(DWARKA DHISH BANSAL) JUDGE kkc