Madhya Pradesh High Court
Amay Lal & Ors. vs Matilal & Ors on 13 October, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL NO.1456 OF 2004
Between:-
1. AMAY LAL (DEAD) THROUGH LRS.
(I) DEVNATH YADAV, S/O SHRI AMAYLAL,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE NAWA
NAGAR, TEHSIL AND DISTRICT
SINGRAULI (MP)
(II) SMT. JAGMATI, W/O SHRI RAMSURAT
YADAV, AGED ABOUT 40 YEARS, C/O
DEVNATH YADAV, OCCUPATION:
DOMESTIC WIFE, R/O VILLAGE NAWA
NAGAR, TEHSIL AND DISTRICT
SINGRAULI (MP)
(III) SMT. RAJMATI, D/O SHRI AMAYLAL,
AGED ABOUT 35 YEARS, C/O DEVNATH
YADAV, OCCUPATION: DOMESTIC
WIFE, R/O VILLAGE NAWA NAGAR,
TEHSIL AND DISTRICT SINGRAULI
(MP)
2. MEMA LAL AGED ABOUT 65
YEARS S/O SHRI RAM
SWAROOP AAHIR
3. TILAK DHARI LAL AGED
ABOUT 63 YEARS S/O
SHRI RAM SWAROOP AAHIR
4. HEERA LAL AGED ABOUT 61
YEARS S/O SHRI RAM
SWAROOP AAHIR
2
5. SIPAHI LAL AGED ABOUT 58
YEARS S/O SHRI RAM
SWAROOP AAHIR
ALL AGRICULTURIST AND ARE
R/O VILLAGE NAWA NAGAR
TAHSIL SINGROLI DISTRICT
SIDHI (M.P.)
..............APPELLANTS
(BY SHRI R.K. SAMAIYA, ADVOCATE)
AND
1. MATUK LAL AGED ABOUT 48 YEARS
S/O SHRI DEV MURATH BANI
2. BHOLA (DEAD) THROUGH LRS.
(A) JAGMANIYA WD/O SHRI BHOLA KOL,
AGED ABOUT 60 YEARS,
(B) RAM ADHARA S/O SHRI BHOLA KOL,
AGED ABOUT 42 YEARS,
(C) RAMLAL S/O SHRI BHOLA KOL, AGED
ABOUT 40 YEARS,
(D) RAMKESH S/O SHRI BHOLA KOL,
AGED ABOUT 38 YEARS,
(E) SHRIRAM S/O SHRI BHOLA KOL, AGED
ABOUT 35 YEARS
ALL R/O VILLAGE NAGWA, POST
KARSUALAL, TEHSIL MANDA,
DISTRICT SINGRAULI
3. SUIYA AGED ABOUT 63 YEARS S/O
DADU KOLE
4. RAMA DHAR AGED ABOUT 63 YEARS
S/O BOLEY KOLE
ALL R/O VILLAGE NAGWA TAHSIL
SINGROULI DISTRICT SIDHI (M.P.)
3
5. STATE OF M.P. THROUGH THE
COLLECTOR SIDHI (M.P.)
............RESPONDENTS
(BY SHRI MADAN MOHAN JAISWAL, ADVOCATE)
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Reserved on : 29.09.2022
Delivered on : 13.10.2022
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JUDGMENT
This second appeal has been preferred by appellants/plaintiffs challenging
the judgment and decree dated 13/10/2004 passed by First Additional Judge to
the Court of First Additional District Judge, Sidhi in Civil Appeal no. 32-
A/2003 confirming the judgment and decree dated 16/05/2003 passed by
Additional Judge Baidhan to the Court of First Civil Judge Class-I, Sidhi in
Civil Suit no.27-A/1988, whereby learned trial Court dismissed the suit filed for
declaration of title and permanent injunction with regard to land Kharsa no.1118
area 1.04 hectare and 1119 area 0.13 hectare (old no.288 area 2.78 acre) situated
in village Nagwa.
2. In short the facts are that the plaintiffs/appellants instituted a suit for
declaration of title and permanent injunction claiming themselves to be
bhumiswami and in possession of the land in question over which a house is
said to be constructed and trees are standing and the defendants have no right or
possession over it. It is alleged that when on 05.05.1989 the defendants tried to
take possession forcibly then the plaintiffs instituted the suit.
3. The defendants/respondents appeared and filed written statement denying
the plaint allegations and contended that the plaintiffs are not
owner/bhumiswami of the land in question, which belonged to one Setlal who
vide document dated 16/08/1938 sold it to father of defendant 1-Matuklal
namely Dev Murath for consideration of Rs.45/- and handed over possession,
consequently, he came in possession and resided there, after getting constructed
the house and well, along with family members and after his death, the
defendant 1-Matuklal and Hanuman Prasad are in possession and have also
acquired title by adverse possession. It is contended that the plaintiffs have
unnecessarily made the defendants 2-4 parties to the suit. House and well of the
defendant 1 are situated over the disputed land. The plaintiffs are not owner and
in possession and the suit has been valued improperly. Hanuman Prasad is
necessary party but has not been impleaded, therefore, the suit deserves to be
dismissed for want of joinder of necessary party.
4. On the basis of pleadings, learned trial Court framed as many as 11 issues
and recorded evidence of the parties and after due consideration of the same,
dismissed the suit vide judgment and decree dated 16/05/2003 and held that the
disputed land does not belong to the plaintiffs; the suit is defective due to non-
joinder of necessary party; the defendants have acquired title by adverse
possession and the suit is barred by limitation.
5. Upon filing appeal by the plaintiffs/appellants, the learned first appellate
Court vide its judgment and decree dated 13/10/2004 dismissed the appeal and
confirmed the judgment and decree passed by the trial Court.
6. This Court vide order dated 13/08/2015 admitted the second appeal on the
following substantial questions of law:-
"(1) Whether the Courts below gravelly erred in holding that the
respondents defendants have perfected their title by adverse
possession in absence of the plea of ouster?
(2) Whether the finding of demarcation by the revenue Courts
regarding the disputed land are binding to the parties?"
7. Learned counsel for the appellants/plaintiffs submits that although the
learned Courts below have held the plaintiffs to be out of possession, even then
the suit for declaration of title and permanent injunction is maintainable. In
support of this argument, he placed reliance on the judgment of Supreme Court
in the case of MD. MOHAMMAD ALI (DEAD) BY LRS. VS. JAGDISH
KALITA & OTHERS (2004) 1 SCC 271 (para 22) and of this Court in the case
of TORAN SINGH VS. KOMAL PRASAD AND ANOTHER 1991(2)
MPJR SN 17. He submits that the learned Courts below have on the basis of a
fake and fabricated document of sale dated 18/06/1938 (Ex.P/1) held the
defendants to be owner and in possession of the land, whereas this document is
not admissible in evidence even after impounding of the same by Collector. By
pressing the pending I.A. No.11280/2022, which is an application under Section
100(5) CPC, he submits that two other following substantial questions of law
are also arising in this second appeal:-
i. Whether the alleged sale deed exhibit D/1 which is a
photo copy is not admissible in evidence u/s 63 and 65 of the
Evidence Act, but even then courts below gravely erred to
consider the same ?
ii. Whether on the question of possession, the commissioner
should have been appointed as stated by the defendants also in
their return under the facts and circumstances ?
With the aforesaid submissions, learned counsel submits that additional
substantial questions of law be formulated and the second appeal be allowed.
8. Learned counsel for the respondents/defendants submits that the
defendant 1 and Hanuman Prasad are in possession of the land on the basis of
document of sale dated 18/06/1938, which was impounded by the Collector and
in pursuance of which they have paid the requisite stamp duty. He submits that
even on the date of suit, the plaintiffs were not in possession, therefore, without
seeking relief of possession, the suit was not maintainable. He further submits
that learned trial Court has vide para 18 and 21 of its judgment, found them to
be in possession since 18/06/1938 and merely on the basis of revenue document
and order (Ex.P/1 & P/3), the plaintiffs cannot be said to be bhumiswami of the
land. He submits that the judgment and decree of trial Court has rightly been
affirmed by learned first appellate Court. With these submissions, he submits
that no substantial question of law is involved in the second appeal and prays
for dismissal of the second appeal.
9. Heard learned counsel for the parties and perused the record.
Substantial Question of Law No.1:
10. While deciding the issue no.1 & 2, learned trial Court has upon due
consideration of entire material available on record held that the plaintiffs are
neither bhumiswami nor in possession of the disputed land and consequently
refused to pass any decree of permanent injunction. While deciding issue no.5
& 9, learned trial Court has clearly held that the defendant 1 and his brother
Hanuman Prasad are in possession of the land w.e.f. 18/06/1938 and as such the
suit filed by the plaintiffs is clearly barred by limitation and defendant 1 has
also acquired title by adverse possession over the suit land.
11. Upon appeal, learned first appellant Court has again considered the
evidence available on record and held that the plaintiffs are out of possession
and merely on the basis of revenue entry (Ex.P/5), the plaintiffs do not get any
right over the land in question. On the basis of documentary evidence Ex.D/1 to
Ex.D/6 and on the basis of admissions made by plaintiffs' witnesses, the learned
first appellate Court has held that despite being out of possession on the date of
filing of the suit, the plaintiffs did not seek relief of possession. As such in
absence of relief of recovery of possession, the relief of declaration of title and
permanent injunction cannot be granted. The learned Courts have also on the
basis of admissions of the plaintiffs, concurrently held that one Hanuman Prasad
is in possession of the land but has not been made party to the suit, therefore,
the suit is defective for want of joinder of necessary party.
12. The Supreme Court has in the case of ANATHULA SUDHAKAR V/s. P.
BUCHI REDDY (DEAD) BY LRS & ORS. (2008) 4 SCC 594 (para 13) 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 in-
junction 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 pos-
session.
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 re -
lief 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."
13. As has been held by Supreme Court in the case of Mohan Lal Vs. Nihal
Singh (2001) 8 SCC 584 (para 11), the finding on the question of possession is
a pure finding of fact and is not liable to be interfered with in the limited scope
of Section 100 CPC. In the present case, the learned Courts below have
concurrently held that the defendant is in possession of the disputed land since
18/06/1938, which has not been challenged by the appellants on the ground of
perversity or otherwise and even no substantial question of law has been
proposed by the appellants or formulated by this Court regarding perversity of
the finding of possession, therefore, applying the ratio of judgment in the case
of VISHNUNARAYAN VS. ANANTNARAYAN & OTHERS 1991(II) MPJR
68, it is held that the possession of defendant being w.e.f. 18/06/1938, the
plaintiffs have lost their right in the suit property after lapse of 12 years and as
per the provision contained in Article 142 of the Limitation Act, 1908 the
defendant had perfected title by adverse possession even prior to the year 1963,
when new Limitation Act, 1963 came into force and the suit is clearly barred by
limitation.
Substantial Question of Law No.2:
14. As regards the question of binding effect of demarcation proceedings is
concerned, the same were started at the instance of the plaintiffs themselves and
were also concluded, therefore, unless the proceedings are shown to be illegal or
without jurisdiction, the same are binding on the parties, which also show that
the plaintiffs are not in possession but the defendant is in possession and despite
knowledge of the factum of possession of defendant, the plaintiffs did not care
to bring the suit for recovery of possession.
15. In the light of aforesaid facts and circumstances of the case, the proposed
substantial questions of law, cannot be said to be substantial questions of law
and they do not arise in the present second appeal, consequently the I.A. No.
11280/2022 deserves to be and is hereby rejected.
16. In view of the aforesaid discussion, the reliance placed by learned
Counsel on the decisions in the case of MD. MOHAMMAD ALI (supra) and TORAN
SINGH (supra) does not give any help to the case of the appellants, and in fact
the decisions cited are not applicable to the present facts of the case. As such
both the substantial questions of law are decided against the
plaintiffs/appellants.
17. Resultantly, the second appeal fails and is hereby dismissed. However, no
order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
RS
Digitally signed by RASHMI RONALD VICTOR
Date: 2022.10.13 18:01:02 +05'30'
