Madhya Pradesh High Court
Hariram S/O Punya Yadav ... vs Fattu S/O Mangtya Ji (Deceased) on 31 October, 2022
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 859 of 2022
BETWEEN:-
HARIRAM S/O PUNYA YADAV (DECEASED)
THROUGH LRS. SMT. SUSHEELABAI W/O
HARIRAM YADAV, AGED ABOUT 65 YEARS,
1.
OCCUPATION: HOUSEWIFE, R/O
VILLAGE BAMKHAL TEHSIL KASRAWAD
(MADHYA PRADESH)
HARIRAM S/O PUNYA YADAV (DECEASED)
THROUGH LRS. MUKESH S/O HARIRAM YADAV,
2. AGED ABOUT 40 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE BAMKHAL,
TEH. KASRAWAD (MADHYA PRADESH)
HARIRAM S/O PUNYA YADAV (DECEASED)
THROUGH LRS. BHARAT S/O HARIRAM YADAV,
3. AGED ABOUT 39 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE BAMKHAL
TEHSIL KASRAWAD (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI M.A.MANSOORI, ADVOCATE)
AND
FATTU S/O MANGTYA JI (DECEASED)
1.
(MADHYA PRADESH)
SHIWRAM S/O FATTU,
AGED ABOUT 62 YEARS,
OCCUPATION: AGRICULTURIST,
2.
R/O VILLAGE AWARKATCHHA,
TEH. KASRAWAD (MADHYA PRADESH)
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
2
REWARAM S/O KALU,
AGED ABOUT 63 YEARS,
3. OCCUPATION: AGRICULTURIST,
R/O VILLAGE AWARKATCHHA,
TEHSIL KASRAWAD (MADHYA PRADESH)
SHANTABAI D/O KALU,
AGED ABOUT 53 YEARS,
4. OCCUPATION: AGRICULTURIST,
R/O VILLAGE AWARKATCHHA,
TEHSIL KASRAWAD (MADHYA PRADESH)
GOGALBAI D/O KALU,
AGED ABOUT 50 YEARS,
5. OCCUPATION: AGRICULTURIST,
R/O VILLAGE AWARKATCHHA,
TEHSIL KASRAWAD (MADHYA PRADESH)
ANARBAI W/O TUKARAM,
AGED ABOUT 68 YEARS,
6. OCCUPATION: AGRICULTURIST,
R/O VILLAGE AWARKATCHHA,
TEHSIL KASRAWAD (MADHYA PRADESH)
YASHWANT S/O TUKARAM,
AGED ABOUT 31 YEARS,
7. OCCUPATION: AGRICULTURIST,
R/O VILLAGE AWARKATCHHA,
TEHSIL KASRAWAD (MADHYA PRADESH)
STATE OF M.P. THROUGH COLLECTOR
8.
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
3
J U D G E M E N T
( Delivered on 31.10.2022 )
1. The objection raised by the office as regards deficit court fee is
hereby ignored. This appeal under Section 100 of the CPC has been
preferred by defendant No.1 Hariram, since deceased now being
represented through his legal representatives, being aggrieved by the
judgment and decree dated 08.03.2022 passed in Civil Appeal
No.200012/2016 by the 4th Additional District Judge, West Nimad,
Mandleshwar reversing the judgment and decree dated 20.07.2015
passed in Civil Suit No.14-A/13 by the Civil Judge, Class-I, Kasrawad,
West Nimad, Mandleshwar and decreeing plaintiff's claim for
possession.
2. As per plaintiffs they are the owners of the suit land bearing
Survey No.481, Gram Bamkhal, Tehsil Kasravad, District Khargone.
The defendant No.1 deliberately broke its medh and attempted to take
possession of the same. The plaintiffs instituted proceeding for
demarcation which defendant No.1 did not permit to be carried out and
on 13.06.2002 illegally took possession of the entire suit land and
started cultivating the same. The plaintiffs instituted proceedings before
the Revenue Court for obtaining possession of the suit land during
pendency of which defendant No.1 removed the boundary marks of the
suit land. On 13.02.2004 defendant No.1 instituted an action against the
plaintiffs with respect to the suit land which was dismissed and which
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
was also affirmed in appeal. The plaintiffs requested defendant No.1 to
handover possession of the suit land but he refused to do so. On such
contentions plaintiffs instituted an action for possession of the suit land
and for mesne profits.
3. The defendant No.1 contested the plaintiff's claim by filing his
written statement submitting that the suit land had been agreed to be
sold to him by plaintiff No.1 and Kalu on 01.02.1990 for a
consideration of Rs.8,025/- upon payment of earnest money of
Rs.8,000/- followed by delivery of possession. An agreement to sale in
that regard was also executed between the parties. Later on balance sale
consideration was also paid and defendant No.1 has been in possession
of the suit land ever since then. The suit land had been given to
defendant No.1 for cultivation even prior to the agreement to sale. The
defendant No.1 requested plaintiffs for execution of the registered sale
deed in his favour on a number of occasions but to no avail. Defendant
No.1 is in possession of the suit land under an agreement to sale hence
is not an encroacher thereupon and plaintiffs are not entitled for
recovery of its possession.
4. The trial Court dismissed the plaintiff's claim holding that though
they are the owners of the suit land but were aware of possession of
defendant No.1 since prior to 1990 but did not institute any steps for
obtaining possession upto 2012 hence their claim is barred by time by
virtue of Article 65 of the Limitation Act. The possession of defendant
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
No.1 over the suit land is not as an encroacher. The said judgment and
decree has been reversed in appeal by the lower appellate Court holding
that plaintiffs are the recorded owners of the suit land and defendant
No.1 is in unauthorized possession thereof as his suit for specific
performance has been dismissed. It has held that cause of action for
institution of the present suit accrued to the plaintiffs only in the year
2011 upon dismissal of defendant's suit hence their claim is within
time.
5. Learned counsel for defendant No.1/appellant submits that the
lower appellate Court has grossly erred in not appreciating the fact that
it was not for defendant No.1 but for plaintiffs to prove their own case.
However the burden of proving ownership to the suit land and nature of
possession thereupon and the fact whether the claim is within time has
been cast by the lower appellate Court upon defendant No.1 which is
illegal. The plaintiffs were to prove their own case and could not have
relied upon weakness of defendant No.1. PW-1 Shivram has
categorically admitted in paragraph No.10 of his cross-examination that
he was aware of possession of defendant No.1 since prior to 1990. The
plaintiffs had pleaded accrual of cause of action for institution of the
suit on 12.06.2002 which they have failed to prove hence their claim
was apparently barred by time and had rightly been dismissed by the
trial Court whose decree has been illegally reversed.
6. I have heard learned counsel for the appellant and have perused
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Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
the record.
7. Admittedly plaintiffs are the recorded owners of the suit land.
Though defendant No.1 contended that an agreement to sale was
executed in his favour by plaintiff No.1 and Kalu in the year 1990, but
his claim for specific performance of contract on its strength has
already been dismissed. His possession over the suit land is hence
apparently without any legal right or authority though may not be by
way of encroachment. The plaintiffs being owners of the suit land are
entitled to recover possession from defendant No.1 provided their claim
for the same is within time.
8. The claim would be governed by Article 65 of the Limitation Act
which provides for period of limitation for a suit for possession of
immovable property based on title. The period prescribed therein is 12
years which begins to run when possession of the defendant becomes
adverse to the plaintiff. In the present case defendant No.1 to begin with
had not pleaded acquisition of title to the suit land by virtue of adverse
possession. Moreover the lower appellate Court has returned a specific
finding that defendant No.1 has failed to prove his adverse possession.
Thus, period of limitation for plaintiff's suit did not begin to run merely
for the reason of defendant No.1 having come in possession prior to
1990. From 1990 his possession was under an agreement to sale hence
could not have been adverse but was permissive.
9. For sake of argument such possession can be said to have become
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
adverse only for the first time when defendant No.1 instituted the suit
for specific performance of contract on 04.01.2004. The present suit has
been instituted by plaintiffs on 13.07.2012 which is well within the
period of limitation as provided under Article 65 of the Limitation Act.
It hence cannot be said that plaintiff's claim was barred by time. Mere
possession of defendant No.1, particularly when the same is permissive,
did not oblige plaintiffs to institute suit for recovery of possession until
such possession became adverse to plaintiffs. The lower appellate Court
has hence rightly held that plaintiff's claim is within time.
10. While it is true that burden of proving his own case is upon
plaintiff but that is not an absolute rule. Though initially the burden of
proof would be upon the plaintiff but thereafter that would depend on
the facts of each case. In the present case the plaintiffs claimed title in
the suit land and illegal possession of defendant No.1. They
categorically proved their ownership which was practically admitted by
defendant No.1 who claimed possession since prior to 1990 and
contended the suit to be barred by time. The plaintiffs proved that their
claim is within time by demonstrating that the same has been instituted
within the stipulated period of limitation from the date when the cause
of action can be stated to have first accrued to them for institution of the
same. The burden then shifted upon defendant No.1 to prove that
plaintiff's claim is barred by time on account of him being in possession
of the suit land since prior to 1990. He has failed to do so as his adverse
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
possession over the suit land has not been proved.
11. Thus the contention of learned counsel for the appellant that
plaintiffs have failed to prove their case as they have not proved the
cause of action as stated by them in the plaint is not liable to be
accepted. Though the exact date of accrual of cause of action as pleaded
by plaintiffs in the plaint might not have been proved but from the other
material available on record it has been categorically proved by them
that their claim is within time.
12. For the aforesaid reason, I do not find that the lower appellate
Court has committed any error of law in reversing the judgment and
decree passed by the trial Court and decreeing the plaintiff's claim. No
substantial question of law arises for determination in this appeal which
is accordingly dismissed in limine.
(PRANAY VERMA)
JUDGE
ns
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 31-10-2022
18:34:41
