Rewaram vs Punabai
2022 Latest Caselaw 3053 MP

                                                                                      1                         S.A.3608/2019




                                                      HIGH COURT OF MADHYA PRADESH
                                                          PRINCIPAL SEAT AT JABALPUR

                                   Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.


                                                               Second Appeal No.3608/2019
                                                                            Rewaram
                                                                                vs.
                                                                      Punabai and Other
                                   --------------------------------------------------------------------------------------------

                                   Shri Lal Ji Kushwaha, learned counsel for the appellant.

                                   Shri Pramod Kumar Pandey, learned counsel for the respondents No. 1 & 2.

                                   Shri Abhay Raj Singh Chouhan, learned PL for the respondent No.3/State.

                                   --------------------------------------------------------------------------------------------

                                                                           ORDER

Reserved on : 26/02/2022 Delivered on : 04/03/2022

This second appeal has been filed under Order 100 of Code of Civil

Procedure against the judgment and decree dated 30/09/2019 passed by

Additional District Judge, Budhani, District, Sehore in Civil Appeal

No.11/2018, whereby learned ADJ affirmed the judgment and decree dated

09/08/2018 passed by Civil Judge Class-1, Budhni, District Sehore in Civil

Suit No.17-A/2018, whereby learned Civil Judge dismissed the suit filed by

the appellant for declaring him the owner of agricultural bearing survey

No.95/2/4 area 1 acre and out of the land bearing survey no.95/2/3, area 0.44

acre; total area 1.44 acres located at village Mahukala, Tehsil Budhni, District

Signature Not Verified Sehore (further referred to as "Suit Land") and restraining the SAN

Digitally signed by VARSHA SINGH Date: 2022.03.07 16:38:30 IST 2 S.A.3608/2019

respondents/defendants no.1&2 from interfering in the possession of the

appellant over the suit land.

2. Brief facts of the case which are relevant for the disposal of this appeal

are that the appellant (plaintiff of the case) filed a plaint for declaration and

injunction regarding suit land averring that respondent No.1 Punabai

(defendant) was the owner of the land bearing survey no.95/2/4 area 1 acre

and respondent No.2 Rakesh (defendant) was the owner of land bearing

survey no.95/2/3 area 4 acre. Out of these, 0.44 acre land of survey no.95/2/3

& whole 1 acre land of survey no.95/2/4, total area measuring 1.44 acres is in

the possession of the appellant and has been so since the year 1996. Poona

Bai's husband died on 13/10/1996 and after his death, respondent No.1 Poona

Bai sold suit land (area 1.44 acre) to him on 24/10/1996 and in this regard,

she also executed one document (Tahrir) and also handed over the possession

of that land to appellant. Since then the appellant has been in possession of

suit land without any interruption and has been cultivating that land for the

last 20 years in the knowledge of respondent Nos. 1 & 2, so due to adverse

possession appellant became the owner of that suit land. At the time of

execution of "Tahrir", respondent No.1 Poona Bai told him that she belonged

to keer community, which comes under the Schedule Tribe, so registered sale

deed of land cannot be executed without the permission of Collector. When

she gets permission to sell the suit land from the Collector, she will get the

sale deed of suit land registered in his favour. Thereafter, he told respondents

No. 1 & 2 many times to get permission from the collector for executing the

registered sale deed of the suit land in his favour, but they did not agree to it.

But the plaintiff's possession of the disputed land continued. Since the value

of the suit land has increased, the defendants no.1 & 2 want to take

possession of the suit land from him forcibly, therefore it should be declared

Signature Not Verified SAN that the plaintiff has become the owner of the suit land on the basis of the

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adverse possession and also restrict the respondent Nos. 1 & 2 to not interfere

in the possession of the appellant in the suit land.

3. Respondents No.1 and 2 in their written statement opposed the prayer

and submitted that they never gave possession of suit land to appellant and

did not execute any sale deed of suit land in favour of the appellant. They

further pleaded that the appellant tried to purchase the suit land, but

respondent Nos. 1 & 2 refused to sell the suit land to the appellant, due to

which appellant filed this false suit against the respondent Nos. 1 & 2. The

suit land was never in possession of the appellant. The suit land is in

possession of the respondent Nos. 1 & 2 and they cultivated that land. The

appellant also filed one application before Tehsildar to record his possession

over suit land in the revenue record. On that Revenue Case, No.16-

A/06/A/2015-16 was registered, which was also dismissed by Tehsildar.

Thereafter, the appellant filed this Civil Suit to grab the respondents' suit land

and pray for its rejection.

4. Learned trial Court after recording the evidence of both the parties

holding that the appellant failed to prove the fact that he is in possession of

the suit land and has been in such continuous possession for the last 12 years

thereby making him owner of the suit land on the basis of adverse possession

dismissed the appellant's suit, against which appellant filed the first appeal

which was registered as Civil Appeal No.11/2018 and the same was also

dismissed by the learned ADJ, Budni, District Sihore. Being aggrieved from

that appellant filed this second appeal.

5. Learned counsel for the appellant submitted that the appellant filed

Civil Suit on the ground that on 24.10.1996 respondent No.1 Poona Bai sold

the suit land to him and also gave the possession of that suit land to him. She

also executed a sale deed of the suit land in his favour. Since then, the Signature Not Verified SAN appellant has been in possession of suit land. At the time of filing of plaint Digitally signed by VARSHA SINGH Date: 2022.03.07 16:38:30 IST 4 S.A.3608/2019

before the trial court that sale deed was not in the knowledge of the appellant,

so he could not produce that deed before the trial Court, but during the

pendency of the first appeal, appellant got that sale deed, so appellant filed an

application under Order 41 Rule 27 of the CPC. for taking that sale deed on

record. Learned Trial Court without appreciating the fact that the said

document is important for just decision of the case and on the basis of that

document appellant could prove his possession over the suit land, wrongly

rejected the appellant's application, so appeal be admitted on the substantial

question of law whether the application submitted by appellants under

Order XLI Rule 27 CPC is allowable. He further submitted that from the

evidence produced by the appellant it is clearly proved that appellant is in

possession of suit land learned trial court, as well as first appellate court,

committed a mistake in holding that the suit land is in possession of

defendants. That finding of both the courts below is also perverse, so appeal

be admitted.

6. This court has gone through the record and argument put forth by the

learned counsel for the appellant. It is apparent from the record that the

appellant filed the plaint before Civil Judge Class-1, Budhni on 13/1/2017

and in the plaint appellant clearly pleaded that respondent No.1 Puna Bai sold

the suit land to him on 24/10/1996 and in this regard she also executed one

document (Tahrir) and also handed over the possession of that land to the

appellant, since then the appellant has been in possession of the suit land. But

appellant neither filed that document at the time of filing of the plaint nor did

he mention in the plaint where that document was. Whether that document is

in possession of the appellant or not. Why is he not able to produce that

document? For the first time during the pendency of appeal on 04/07/19

appellant filed that documents, but at that time also appellant did not disclose Signature Not Verified SAN the fact from where he got that document. So the reason assigned by the

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appellant, why he could not produce the document earlier does not appear to

be correct.

7. From bare perusal of that document, it appears that in that document it

is mentioned that respondent No.1 Puna Bai sold the suit land to the appellant

for Rs.6500/- and also handed over the possession of suit land to him.

Respondent No.1 Puna Bai and her sons belong to the ST community, so the

registered sale deed of the suit land can not be executed without the

permission of the Collector. After obtaining permission from the Collector for

the sale of the suit land by the appellant, she will execute the registered sale

deed of the suit land in favour of the appellant. Which clearly shows that the

document is an agreement to sell. Where the appellant is in possession of the

suit land under the agreement of sale, his possession shall be deemed as

permissive possession. As held by the Apex court in the case of Achal Reddy

v. Ramakrishna Reddiar, (1990) 4 SCC 706. In which apex court held:-

"10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor."

8. So on the basis of that document which is an agreement to sell the

possession of appellant shall be deemed as permissive possession. While

appellant filed this suit with the plea that he has become owner of the suit

land on the basis of adverse possession. Therefore for proving adverse

possession that document is not relevant. Because the appellant has also not

pleaded in the plaint as to when after coming into possession over the suit

Signature Not Verified SAN

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land on the basis of that sale agreement his possession over suit land became

adverse.

9. Even otherwise in the document, it is mentioned that respondent no.1

Puna Bai at the time of execution of that sale agreement also handed over the

possession of suit land to the appellant. Article 23 of Schedule 1-A of the

Indian Stamp Act, 1899 (as amended in Madhya Pradesh) relates to

conveyance. At the relevant point of time (24/10/1996), Article 23 reads

thus:--

Description Stamp Duty Conveyance not being a transfer Seven and half percent of charged or exempted under No. 62 such market value.......... irrespective of the market value of the property which is the subject matter of conveyance.

Explanation:-- For the purpose of this article, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser before execution or after execution of such agreement without executing the conveyance in respect thereof, then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly:

Provided further that where subsequently a conveyance is effected in pursuance of such agreement of sale, the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance, subject to a minimum of Rs. 10/-.

10. It is clear from the Explanation to Article 23 (which was inserted by

M.P. Act No. 22 of 1990 with effect from 18-10-1990), that where possession

of any immovable property is transferred to the purchaser under the Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.03.07 16:38:30 IST 7 S.A.3608/2019

agreement of sale, before the execution of the sale-deed, the agreement shall

be liable to stamp duty as a conveyance. In the document, it is mentioned that

respondent no.1 Puna Bai sold the suit land to appellant for Rs.6,500/-. While

that document has been written on the stamp of only Rs.10/-. So that

document is not properly stamped. Hence according to the provisions of

Section 35 of the Indian Stamp Act that document can not be admitted in the

evidence for any purpose. So in the considered opinion of this court, the first

appellate court did not commit any mistake in rejecting the application filed

by the appellant under Order 41 rule 27 of C.P.C.

11. The Apex court in the case of Ram Prasad Rajak Vs. Nand Kumar &

Bros. & Anr., reported in AIR 1998 SC 2730, held that the existence of

substantial question of law is a sine-qua-non for the exercise of jurisdiction

under Section 100 of the Code. Although Apex court in the case of Dinesh

Kumar Vs Yusuf Ali reported in AIR 2010 SC 2679 after considering

their previous judgements held that the law on the subject emerges to the

effect that Second Appeal under Section 100 of C.P.C. is maintainable

basically on a substantial question of law and not on facts. However, if

the High Court comes to the conclusion that the findings of fact

recorded by the courts below are perverse being based on no evidence or

based on irrelevant material, the appeal can be entertained and it is

permissible for the Court to re-appreciate the evidence.

12. While in this case, the trial Court, as well as the appellate court, did not

consider any irrelevant material, considered all the relevant evidence

Signature Not Verified SAN produced by both the parties and held that the appellant has failed to prove Digitally signed by VARSHA SINGH Date: 2022.03.07 16:38:30 IST 8 S.A.3608/2019

that he has become owner of the suit land on the basis of adverse possession.

Both the Courts below rejected the appellant's plea that appellant was in

possession of the suit land and became the owner of the suit land on the basis

of adverse possession. Those findings are the findings of the fact and there is

no need to interfere in the findings in the second appeal.

13. Even otherwise, to prove the title over an immovable property on the

basis of adverse possession it has to be proved that the appellant has been in

hostile possession of the suit land continuously for 12 years in the knowledge

of the true owner of the property. Appellant filed this civil suit averring that

on 13/10/1996 respondent No.1 Puna Bai sold the suit land to the appellant

for Rs.6,500/- and also gave the possession of suit land to him and executed

one agreement to sale in his favour and since then appellant is in possession

of suit land, so he becomes the owner of the suit land by adverse possession

while as discussed above on the basis of agreement to sell, the possession of

appellant shall be deemed as permissive possession. Appellant has also not

pleaded in the plaint that after coming into possession over the suit land on

the basis of that sale agreement when his possession over suit land become

adverse. On the contrary, Punabai (DW-1) clearly deposed in her court

statement that suit land was never in possession of the appellant. The suit

land is in the possession of her son Rakesh and herself and they cultivated

that land. Possession of the respondents No.1 & 2 over suit land is also

proved from the revenue record i.e. Khasra for the year 2012-2013 (Ex.D/2

&5), in which the name of respondents No.1 & 2 is mentioned as the

possessor of the suit land. According to the provisions of section 117 of the Signature Not Verified SAN

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M.P. Land Revenue Act, unless the contrary is proved these entries will be

presumed to be correct.

14. So in the considered opinion of this Court, the trial court, as well as the

first appellate court, did not commit any mistake in rejecting the appellant's

suit. Consequently, the appeal is dismissed at the motion stage and the

judgement and decree passed by the trial Court as well as the first appellate

court are hereby confirmed.

15. No order as to the cost.

(Rajeev Kumar Dubey) Judge vs

Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.03.07 16:38:30 IST