Radhelal vs Vishvanath Soni
2022 Latest Caselaw 12366 MP

                                  1

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                              BEFORE
        HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                   ON THE 16th OF SEPTEMBER, 2022

                  SECOND APPEAL No. 1670 of 2022

      Between:-
1.    RADHELAL S/O SHRI PRASAD TAMRAKAR,
      AGED ABOUT 69 YEARS, OCCUPATION-
      AGRICULTURIST, R/O HAZARI WARD, HATA,
      TEHSIL HATA, DISTRICT-DAMOH, MADHYA
      PRADESH
                                                    .....APPELLANT

      (BY SHRI ASHISH SHROTI-ADVOCATE)

      AND

1.    VISHVANATH SONI, S/O NATHURAM SONI,
      AGED ABOUT 58 YEARS, R/O HAZARI WARD,
      HATA, TEHSIL HATA, DISTRICT-DAMOH,
      MADHYA PRADESH

2.    STATE OF MADHYA PRADESH THROUGH
      COLLECTOR, DISTRICT-DAMOH, MADHYA
      PRADESH

                                                .....RESPONDENTS
      (BY SHRI AMIT KUMAR SHRIVASTAVA-ADVOCATE
      FOR RESPONDENT 1
      BY SHRI RAJESH SHARMA-PANEL LAWYER FOR
      RESPONDENT 2-STATE)

...........................................................................................
      This second appeal coming on for admission this day, Court
passed the following:
                              ORDER

This second appeal has been preferred by appellant/defendant- Radhelal challenging the judgment & decree dated 30.06.2022 passed by

1st Additional District Judge, Hata, District Damoh in Regular Civil Appeal No. 28/2017 whereby reversing the judgment & decree dated 26.10.2017 passed by Civil Judge Class-1, Hata, District Damoh in RCSA No. 300004/2013 whereby suit filed by respondent 1/plaintiff- Vishvanath Soni for possession of agricultural land khasra No.14 area 4.73 hectare, situated at village Chhevla Bhagirath, Tahsil Hata, District. Damoh was dismissed by trial Court, which has been decreed by first appellate Court.

2. In short the facts of the case are that the respondent 1-Vishvanath instituted a suit for restoration of possession of the suit land against the appellant-Radhelal with the allegations that the respondent 1 is owner of disputed land, which is his ancestral property, which was purchased by his grandfather Lt. Gaya Prasad and after his death was received by father of respondent 1 namely Nathuram, which was partitioned by Nathuram in which the respondent 1 received the disputed land along with other properties, on the basis of which name of respondent 1 was recorded. It is alleged that due to poor financial condition, the respondent 1 took loan from appellant but he got signature of the respondent 1 on blank stamp with the assurance to get prepared the deed with regard to the loan transaction but in its place, he got prepared sale agreement dated 05.09.2007 mentioning the wrong fact of his possession for more than 50 years and on that basis he got prepared a false panchnama showing his possession and on that basis he instituted a suit for declaration of title and permanent injunction in the Court of 2nd Civil Judge Class-2, Hata against the respondent 1, which was registered as civil suit No. 22-A/09. In turn, the respondent 1 appeared in the said civil suit and filed written statement as well as counter claim for the relief of permanent injunction but vide judgment & decree dated 09.05.2011 (Ex. D/25), the suit of the appellant as well as counter claim of respondent 1 was dismissed. The civil appeal No. 11-A/2012, filed against the said judgement was decided on 17.07.2012 whereby dismissal of counter claim was affirmed and holding the appellant to be in possession of the suit land, decree of permanent injunction was granted in his favour to the effect that he shall not be dispossessed without due process of law, however, the appellant was not found owner/bhoomiswami of the land in question. He also alleged that the previous judgment & decree has effect of res judicata. In pursuance

of the aforesaid judgment & decree and findings, the respondent 1 alleged that he is owner/bhoomiswami of the land and is entitled for possession of the land along with mesne profits.

3. The defendant 1/appellant-Radhelal appeared and filed written statement denying the plaint allegations and contended that the disputed land has been in possession of appellant from the time of his father-Lt. Jamna Prasad, who 50 years ago, got a house constructed on the disputed land over an area 1350 sq. ft. in which the appellant is residing and is using the same for agricultural purpose. It is also contended that the appellant is in possession of the land from the time of his father since the year 1958 in the knowledge of respondent 1 and his father openly and without any interruption and is also paying lagan, hence the appellant has acquired title by adverse possession. It is contended that in the judgment & decree dated 17.07.2012 (Ex. P/13 & D/23), possession of the appellant was found from the time of his father Lt. Jamna Prasad. It is also contended that the judgment & decree dated 17.07.2012 was not challenged by the respondent 1 but the appellant preferred second appeal No.1078/2012, which was disposed off on 15.06.2015 (Ex.P/18) confirming the judgment & decree dated 17.07.2012, hence the suit is barred by principle of res judicata and is also barred by limitation. The respondent 1 has not properly valued the suit and has not paid the requisite court fee. With the aforesaid submissions, the suit was prayed to be dismissed with cost of Rs. 10,000/-.

4. The defendant 2-State did not file any written statement and was proceeded exparte vide order dated 23.02.2013.

5. On the basis of pleadings, learned trial Court framed seven issues and recorded evidence of the parties and after considering entire evidence

available on record, learned trial Court vide judgement and decree dtd. 26.10.2017 held that the respondent 1 is owner/bhoomiswami of the land khasra No. 14 area 4.73 hectare and is entitled for possession but it was held that as per Section 257(x) of the M.P. Land Revenue Code, 1959 (in short "MPLRC"), the plaintiff has remedy before the Revenue Court under Section 250 of the MPLRC.

6. The respondent 1-Vishvanath challenged the judgment & decree dated 26.10.2017 passed by trial Court by filing civil appeal before 1st Additional District Judge, Hata, wherein cross objection was filed by the appellant-Radhelal. Learned first appellate Court after considering entire material available on record and in the light of findings recorded by learned trial Court and in the light of documentary evidence available on record, dismissed the cross objection and decreed the suit vide impugned judgment & decree dated 30.06.2022, against which present second appeal has been filed.

7. Learned counsel for the appellant submits that the suit simpliciter for possession of the disputed land without seeking any declaration of title was not maintainable and learned Courts below have for the purpose of title of the respondent 1, considered only the previous judgment & decree dated 09.05.2011 (Ex. D/25) and 17.07.2012 (Ex. D/23 & P/15) and not considered any other evidence with regard to the title of the respondent 1. He submits that title of the respondent 1 being in question, he was required to file the suit for declaration of title and in absence of which, the suit mere for possession was not maintainable. By placing reliance on the judgment in the case of Gram Panchayat Of Village Naulakha vs. Ujagar Singh and others (2000) 7 SCC 543, he submits that the finding of title recorded in the suit for permanent injunction is not binding in the subsequent suit. He further submits that the present suit is

also barred by the provision of Order 2 Rule 2 CPC. With these submissions, the learned counsel prays for admission of the second appeal. In the case of Gram Panchayat of Village Naulakha (supra) it has been held :-

"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into nor decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer (2000) 3 SCC 350 : (2000 AIR SCW 901 : AIR 2000 SC 1238) where this Court, on a detailed consideration of law in India and elsewhere held that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a latter suit or proceeding where title is directly in question, unless it is established that it was 'necessary' in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was found or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."

8. Learned counsel appearing on behalf of the respondent 1 supports the judgment & decree passed by learned first appellate Court. He submits that in view of the findings recorded in the previous suit filed by the appellant himself and in view of the proven title of the respondent 1, he was not required to seek relief of declaration of title. By placing reliance on the decisions of Supreme Court in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and others (2004)3 SCC 277 and S. Nazeer Ahmed vs. State Bank of Mysore and others (2007)11 SCC 75 he submits that the present suit is not barred by provisions of Order 2 Rule 2 CPC. With these submissions he submits that the impugned judgement and decree is not liable to be interfered within the limited scope of section 100 of CPC.

9. Heard learned counsel for the parties and perused the record.

10. In the present case copy of the plaint of the civil suit No. 22-A/09 is not on record, which was decided on 09.05.2011 (Ex.D/25), however,

in the judgment dated 09.05.2011, the learned judge has reproduced the plaint allegations in detail, and from para 3 of which, it is clear that the appellant-Radhelal took plea of benami transaction alleging that the disputed land was purchased in auction in the name of Gaya Prasad (grandfather of Vishvanath) but infact the land was purchased for Lt. Jamna Prasad (father of appellant-Radhelal) and it is alleged that since then the appellant-Radhelal remained in possession. Another plea was taken with regard to agreement of sale dated 05.09.2007 and on that basis he instituted the suit for declaration of title and permanent injunction.

11. In the previous round of litigation which concluded vide judgment & decree dated 09.05.2011 (Ex.D/25) & 17.07.2012 (Ex.D/23), appellant- Radhelal was not found owner/bhoomiswami of the disputed land and from pleadings of appellant-Radhelal, it is clear that infact he admitted the factum of ownership of respondent 1-Vishwanath Soni on the basis of plea of benami as well as on the basis of agreement of sale dated 05.09.2007 and thirdly on the basis of adverse possession.

12. Learned both the Courts below have after taking into consideration oral as well as documentary evidence available on record, held that the respondent 1 is owner/bhoomiswami of the land in question and the appellant has not perfected title by adverse possession. Even from the conduct of the appellant, it is clear that he infact has admitted title of the respondent 1-Vishwanath, therefore, in the light of decision of Supreme Court in the case of ANATHULA SUDHAKAR VERSUS P. BUCHI REDDY (DEAD) BY LRS & ORS. (2008)4 SCC594, it cannot be said that the suit of the plaintiff is not maintainable for want of relief of declaration of title, in para 14 of said decision it has been held as under :-

"14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the

title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."

13. In previous round of litigation, the respondent 1-Vishwanath filed counter claim for permanent injunction in the suit for declaration of title and permanent injunction filed by appellant-Radhelal, which upon finding the appellant-Radhelal to be in possession, was dismissed by Courts below. As the relief claimed in previous suit by respondent 1- Vishwanath by way of counter claim was simpliciter for permanent injunction, therefore, the present suit, which is for recovery of possession of the land based on title, there cannot be any bar of Order 2 Rule 2 CPC, especially in the case where the appellant did not file pleadings of the previous suit.

14. From bare perusal of para 13 of impugned judgment dated 26.10.2017 passed by Civil Judge and from para 17 & 20 of impugned judgement dated 30.6.2022 passed by learned first appellate Court, it is clear that learned both the Courts have not only considered the previous judgment & decree (Ex. D/25 & D/23), but have also considered other documentary evidence available on record, therefore, the argument advanced by learned counsel for the appellant to the effect that learned

Courts below have passed the judgment & decree in question only on the basis of previous judgment and decree, is not acceptable.

15. In view of the aforesaid discussion, there appears no illegality in the impugned judgment & decree passed by learned Courts below and the present second appeal having no involvement of substantial question of law, deserves to be and is hereby dismissed in limine under order 41 rule 11 CPC.

16. However, no order as to costs.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2022.09.22 12:37:31 +05'30'