Smt.Kesar Bai vs Genda Lal & Ors.
2022 Latest Caselaw 2885 MP

                                                                         1
                                        IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                       BEFORE
                                                     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                                ON THE 2nd OF MARCH, 2022

                                                           SECOND APPEAL No. 8 of 1999

                                               Between:-
                                               SMT. KESAR BAI, D/O HIMMAT SINGH, AGED
                                               ABOUT 28 YEARS, R/O VILLAGE, DORAHA
                                               DISTRICT SEHORE (MADHYA PRADESH)

                                                                                                        .....APPELLANT
                                               (BY SHRI ADITYA ADHIKARI, SENIOR ADVOCATE WITH SHRI
                                               SATISH CHATURVEDI ADVOCATE)

                                               AND

                                               1. GENDA LAL S/O DARIYAV SINGH,           AGED 30
                                               YEARS.
                                               2.   SMT. MEVA BAI (DEAD)

                                               BOTH R/O VILLAGE, DORAHA, DISTRICT SEHORE
                                               (M.P.).
                                               3.        THE STATE OF MADHYA PRADESH
                                               THROUGH THE COLLECTOR, SEHORE (M.P.).

                                                                                                     .....RESPONDENTS
                                               (BY SHRI MUKUND AGRAWAL, GOVERNMENT ADVOCATE FOR
                                               RESPONDENT NO.3).

                                          This appeal coming on for final this day, the court passed the following:
                                                                       JUDGMENT

This second appeal under Section 100 Code of Civil Procedure has been filed challenging the impugned judgment and decree dated 9.11.1998 passed by District Judge, Sehore in Civil Appeal No.83-A/1994 reversing the judgment and decree dated 14.9.1994 passed by First Civil Judge Class-II, Sehore in Civil Suit No.43-A/1994 with regard to 2 acres of land out of total area 6.46 acres of land bearing in survey no.15/4-20 situated in village Sikandarganj Tehsil Sehore.

2. Brief facts of the case are that the plaintiffs Gendalal and smt. Mewa Bai instituted a suit for declaration of title and permanent injunction against defendant No.1-Smt. Keshar Bai with the allegations that father and husband of plaintiffs namely late Dariyab Singh purchased the said land vide registered sale deed dated 31.08.1967 from Nannulal S/o Himmat Singh and received possession Signature Not Verified SAN and since then Dariyab Singh and after his death plaintiffs are in possession after Digitally signed by KRISHAN KUMAR CHOUKSEY getting their names mutated in the revenue record. Defendant Keshar Bai is sister Date: 2022.03.05 11:55:18 IST

of Nannulal and is threatening to dispossess the plaintiffs. It is alleged that plaintiffs are in possession of the suit land with effect from 31.8.1967 in the knowledge of defendant and her ancestor Himmat Singh, accordingly prayed for declaration of title and sought decree of permanent injunction in their favour.

3. Defendant filed written statement, denied the plaint allegation and contended that the plaintiffs have received possession from Nannulal but the defendant is successor of Himmat Singh and has been in possession along with mother Sampat Bai. Sale deed dated 31.8.1967 is forged and sham document because Nannulal is not successor of Himmat Singh and had no right to sell the land. The plaintiffs or their father/ husband late Dariyab Singh never remained in possession. The mutation made in favour of plaintiffs was cancelled in appeal vide order dated 30.8.1993 passed by Sub Divisional Officer and in the Civil Suit No.29-A/1992 (Ex.D.1), the defendant and her mother Sampat Bai were declared joint owner and in possession. It is contended that the land is jointly held by defendant and her mother Sampat Bai, who is necessary party, as such the suit is not maintainable and prayed for dismissal of the suit.

4. In view of aforesaid pleadings as many as 10 issues were framed by learned trial Court and recorded evidence of the parties. The plaintiffs examined as many as seven witnesses in their support and submitted documentary evidence sale deed dated 31.8.1967 (Ex.P.1) and Khasra of the year 1989-93 (Ex.P.2). As against this the defendant No.1 examined herself as D.W.1 and also examined Amrit Singh in her support and submitted documentary evidence Ex.D.1 to Ex.D.7.

5. Vide judgment and decree dated 14.9.1994 learned trial Court dismissed the civil suit filed by the plaintiffs holding that the sale deed executed in favour of the plaintiffs is illegal because Nannulal had no right to execute the sale deed and vide paragraph 46 it was held that the plaintiffs are not in possession of the land, therefore, there is no question of acquisition of title by adverse possession. Upon filing appeal by the plaintiffs learned first appellate Court had

Signature Not Verified decreed the suit holding specifically that the plaintiffs do not get any right on the SAN

Digitally signed by KRISHAN KUMAR basis of sale deed (Ex.P.1) but vide paragraph 7 categorically held that the CHOUKSEY Date: 2022.03.05 11:55:18 IST

plaintiffs are in possession of the suit land and further held that the plaintiffs have

perfected their title by way of adverse possession. Accordingly, learned appellate Court decreed the suit for title and issued decree of permanent injunction restraining the defendant No.1 from making interference in possession of the plaintiffs.

6. Vide order dated 6.8.1999, present second appeal was admitted on 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 ?"

7. Learned Senior counsel for the appellant submits that the plaintiffs who have come with the case of ownership on the basis of registered sale deed dated 31.8.1967 (Ex.P.1) executed by Nannulal in favour of Dariyab Singh, cannot claim to have perfected title by adverse possession and in support of the argument learned counsel placed reliance on the judgments of Hon'ble Apex Court in the case of Sundra Naicka Vadiyar (Dead) by LRs. and another Vs. Ramaswami Ayyar (Dead) by his LRs . reported in 1995 Supp(4) SCC 534, in the case of Ishwar Dass Jain (Dead) through LRs. Vs. Sohan Lal (Dead) by LRs. reported in (2000) 1 SCC 434 and in the case of Narasamma and others Vs. A Krishnappa (Dead) through Legal representatives reported in (2020) 15 SCC 218 and submitted that the judgment and decree passed by lower appellate Court deserves to be set aside.

8. Although respondent No.1 is represented through counsel but nobody has appeared on his behalf.

9. Learned Senior counsel for the appellant is heard at length and perused the record.

10. So far as substantial question of law framed by this Court is concerned, the submission of the senior counsel for the appellant is fully supported by the judgment of the Apex Court in the case of Narasamma and Signature Not Verified SAN others (Supra) and it is correct that plaintiffs cannot claim to have perfected their Digitally signed by KRISHAN KUMAR CHOUKSEY title by way of adverse possession because originally the plaintiffs came with the Date: 2022.03.05 11:55:18 IST

case of ownership on the basis of registered sale deed executed on 31.8.1967 in favour of their father and husband Dariyab Singh. The plea of ownership based on sale deed and plea of adverse possession both are contrary to each other and the plaintiffs cannot be permitted to take both pleas at the same time. Hence, substantial question of law framed by this Court is answered in affirmative.

11. But it is pertinent to mention here that by making critical analysis of the evidence adduced by the plaintiffs, learned lower appellate Court has categorically recorded findings in earlier part of paragraph 7 of its judgment that the plaintiffs are in possession of the suit land since after execution of sale deed dated 31.8.1967 (Ex.P.1) and in paragraphs 6 and 7 the witness of defendant namely Amrit Singh (D.W.2) has also admitted the factum of possession of Dariyab Singh and his legal heirs i.e. the plaintiffs. Despite the aforesaid finding of possession, no substantial question of law has been framed with regard to any perversity in the finding of physical possession of the plaintiffs over the suit land, therefore, even after deciding the substantial question of law framed by this Court on 6.8.1999 in affirmative, the finding recorded with regard to possession and grant of decree of permanent injunction by the lower appellate Court cannot be set aside. Further the findings of possession recorded by first appellate Court, which is last Court of facts and law, cannot be interfered with in absence of any substantial question of law. Even otherwise the findings of possession recorded in favour of plaintiffs do not appear to be perverse or contrary to record. Hence, according to the pronouncement of the Apex Court in the matter of Mohan Lal Vs. Nihal Singh reported in (2001) 8 SCC 584, the findings of possession recorded by lower appellate Court are the findings of the fact and are not liable to be interfered with in the limited scope of Second Appeal.

12. In view of the aforesaid this second appeal filed by the appellant/defendant being devoid of merits, deserves to be and is hereby dismissed without any order as to cost.

Signature Not Verified SAN

(DWARKA DHISH BANSAL) Digitally signed by KRISHAN KUMAR CHOUKSEY JUDGE Date: 2022.03.05 11:55:18 IST kkc

Signature Not Verified SAN

Digitally signed by KRISHAN KUMAR CHOUKSEY Date: 2022.03.05 11:55:18 IST