Madhya Pradesh High Court
Jameel Ahmed Choudhary vs Dinesh Narayan Soni on 13 February, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 13TH OF FEBRUARY, 2023
FIRST APPEAL NO.321 OF 2018
BETWEEN:-
JAMEEL AHMED CHOUDHARY S/O LATE
HAJI MOHD. YAKOOB, AGED ABOUT
57 YEARS, CHOUDHARY MARBLE
INDUSTRIES, SHOP NO. 2,
NEAR GALLA MANDI, RAISEN ROAD,
PULL BOGDA, BHOPAL (M. P.)
.....APPELLANT
(BY SHRI ISHTEYAQ HUSAIN - ADVOCATE)
AND
1. DINESH NARAYAN SONI S/O CHUNNILAL
SONI HOUSE NO. 37, BADKUL JI KA BADA,
IBRAHIMPURA, BHOPAL (M.P.)
2. SMT. MUNNI BAI W/O SHRI RAMDAS JI
R/O HOUSE NO.37, BADKUL JI KA BADA,
INBRAHIMPURA, BHOPAL (M.P.)
3. SMT. SUSHILA DEVI W/O BHAGWANDAS
JI R/O HOUSE NO.37, BADKUL JI KA
BADA, INBRAHIMPURA, BHOPAL (M.P.)
4. SMT. VIDHYARANI W/O SHRI ANANDILAL
R/O HOUSE NO.37, BADKUL JI KA BADA,
INBRAHIMPURA, BHOPAL (M.P.)
5. GYAN SINGH S/O LATE SURAJ SINGH,
AGED ABOUT 38 YEARS, R/O BEHIND
GURUDWARA MATA SAHAB KAUR,
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/16/2023
1:33:56 PM
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HOUSE NO.720 LAXMIBAI, GALLAMANDI
RAISEN ROAD, BHOPAL (M.P.)
6. STATE OF MADHYA PRADESH THR.
COLLECTOR OFFICE B-BLOCK OLD
SECRETARIAT, BHOPAL (M.P.)
....RESPONDENTS
This appeal coming on for admission this day, the Court
passed the following:
ORDER
Heard on the question of admission.
2. This first appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dated 20.12.2017 passed by 2nd
Additional District Judge to the Court of 1st Additional District Judge,
Bhopal, in civil suit no.193-A/09, whereby suit filed by the
plaintiff/appellant for declaration of title and permanent injunction in
respect of a piece of land admeasuring 3200 sq.ft, bearing in khasra
no.902 total area 13.97 acre situated in ward no.43, Bhopal, has been
dismissed.
3. In short, the facts are that the plaintiff instituted a suit for
declaration of title and permanent injunction with the allegations that the
owner of disputed land namely Chunnilal had sold it to the plaintiff on
10.01.1984 after receiving consideration of sale of Rs.20,000/- which was
purchased by ancestor of Chunnilal namely Dulichand in the year 1956
vide sale deed dated 27.02.1956 and 02.03.1956 respectively and his title
was confirmed upto the High Court. It is alleged that the respondent 1 had
not executed the sale deed but assured him to execute the sale deed by
way of decree of the Court. It is alleged that the plaintiff is doing business
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BAGJILEWALE
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on the disputed land (3200 sq.ft.) and the defendant 1 on 15.07.1985 tried
to dispossess the plaintiff, whereas plaintiff being in possession for a long
period, is also paying house tax from the year 2002-03 and has also
obtained electricity connection as well as permission from the District
Industries Center. It is also alleged that the defendant 1 in lieu of
acquisition of the disputed land, made demand for alternative land, in
pursuance of which, the spot was inspected and the plaintiff was found in
possession for 10-15 years. It is also alleged that treating the plaintiff to
be encroacher, dispossession proceedings were started in the year 2007.
Accordingly, claiming himself to be in possession, the plaintiff prayed for
decree in his favour on the basis of adverse possession.
4. The defendant 1 appeared and filed written statement contending
therein that his ancestors purchased the property in the year 1956 and in
the civil suit filed against the defendant-State the property was declared
of the ownership of defendants 1-4 and the appeal preferred by the State
was dismissed on 21.07.1979. It is also contended that in the year 1981-
82 the State Government under Gandi Basti Unmoolan Scheme
transferred the land to the Mandal and he has never transferred the land to
the plaintiff for consideration of Rs.20,000/- and no rights have accrued
to the plaintiff on the basis of adverse possession. It is specifically
contended that the State Government has acquired 25,832 sq.ft. land
without payment of compensation in respect of which, the claim is
pending before the competent Authority and against such illegal
acquisition, writ petition was filed before the High Court and in
pursuance of the order passed in the petition, the matter is pending before
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BAGJILEWALE
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the competent Authority. It has specifically been contended that after
acquisition of the land, the same is recorded in the name of Government.
5. The defendant 5 also filed written statement claiming himself to be
tenant over the land in question received by his father Suraj vide rent note
dated 01.12.1985. Accordingly, claiming himself to be in possession, the
suit was prayed to be dismissed.
6. The defendant 6/State also appeared and filed written statement
contending that the land in question belongs to the State Government and
the plaintiff is just an encroacher, regarding which he has already been
issued notice by the State Government for dispossession. With these
contentions, the suit was prayed to be dismissed.
7. On the basis of pleadings of the parties, learned trial Court framed
issues and recorded evidence of the parties and after due consideration of
the same dismissed the suit vide its judgment and decree dated
20.12.2017.
8. Learned counsel for the appellant submits that learned trial Court
without deciding all the issues, has on the basis of decision in the case of
Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another (2014)
1 SCC 669 dismissed the suit, whereas the judgment in the case of
Gurdwara Sahib (supra) has already been over ruled by Supreme Court
in the case of Ravinder Kaur Grewal and others vs. Manjit Kaur and
others (2019) 8 SCC 729. He further submits that the plaintiff is in
possession on the basis of agreement of sale and he can protect his
possession as against the defendants including the State Government. By
placing reliance on the decision in the case of Ravinder Kaur Grewal and
others (supra) he submits that the suit for declaration of title on the basis
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BAGJILEWALE
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of adverse possession can be filed and there is no bar to file the suit on
that basis. Along with the aforesaid judgments, he also placed reliance on
the decision in the case of Nirakar Das vs. Gourhari Das and others AIR
1995 Orissa 270 and Satnam Singh & another vs. Hukum Singh & others
I.L.R. [2014] M.P.1083 and submits that in the existing facts and
circumstances of the case, the matter deserves to be reconsidered and
remanded back to learned trial Court.
9. Learned counsel appearing for the State/respondent 6 supports the
impugned judgment and decree and prays for dismissal of the appeal.
10. Heard learned counsel for the parties and perused the record.
11. In the present case, following points for determination are arising
for consideration of this Court :-
"1. Whether on the basis of alleged oral sale of land/agreement of
sale dated 10.01.1984 for consideration of Rs.20,000/- the plaintiff
is entitled to any relief ?
2. Whether in presence of the fact of acquisition of land by the
State Government, the civil Court has any jurisdiction to entertain
the suit ?"
12. In the present case, the plaintiff has come to the Court seeking
declaration of title and permanent injunction on the basis of oral sale
dated 10.01.1984 allegedly made for consideration of Rs.20,000/- and he
first time during the inspection made by the Government officials in the
year 2002, in pursuance of the application filed by defendants 1-4 for
grant of alternative land, in place of the land acquired by the State
Government, came to know about the same.
13. In view of the aforesaid facts it can be presumed that till the
inspection done in the year 2002, the plaintiff was treating himself to be
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BAGJILEWALE
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owner and in possession of the suit land and the present suit has been
filed in the year 2009, therefore, it can very well be said that till the year
2002, there was no question of starting adverse possession of the plaintiff
over the land in question and from the plaint it is also clear that between
2002 to 2009, there were proceedings of dispossession by the defendant
6/State claiming it to be the property of State Government. Accordingly,
in view of alleged sale of land for consideration of Rs.20,000/-, the
plaintiff cannot claim any ownership on the basis of adverse possession
and further, till the year 2002, he was enjoying the property as owner,
therefore, there was no question of claiming adverse possession by him
in the year 2009. However, it is pertinent to mention here that learned
trial Court has not dismissed the suit as not maintainable in the light of
decision in the case of Gurdwara Sahib (supra) but has decided the issue
and dismissed the suit after taking into consideration entire material
evidence available on record as well as the legal position applicable to the
case.
14. By filing written statement the defendants had taken specific plea
that the land has already been acquired for Gandi Basti Unmoolan
Scheme and the learned trial Court has taken into consideration this fact
in para 14 of the impugned judgment by observing that the land was
already acquired in the year 1981. As such, the plea taken by the plaintiff
in respect of sale of land in the year 1984 also becomes of no use and in
presence of the factum of acquisition of land and in presence of pending
litigation on behalf of the defendants demanding for alternate land, the
civil Court had no jurisdiction to entertain the suit and the suit filed by
the plaintiff was not maintainable at all, as has been held by Supreme
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BAGJILEWALE
Signing time: 2/16/2023
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Court in the case of S.P. Subramanya Shetty and others vs. Karnataka
State Road Transport Corporation and others (1997) 11 SCC 250 and
State of Bihar vs. Dhirendra Kumar and others (1995) 4 SCC 229.
15. Needless to say that the sale of land for consideration of more than
Rs.100/- is required to be registered compulsorily and the plaintiff cannot
take plea of ownership as well as adverse possession simultaneously as
has been held by Supreme Court in the case of T. Anjanappa and others
vs. Somalinguppa and another (2006) 7 SCC 570. Further, so far as the
argument of the learned counsel, alleging the transaction of sale to be an
oral agreement of sale, is concerned, the same also cannot be entertained
because after payment of entire consideration of sale and after delivery of
possession, it became complete sale.
16. Resultantly, first appeal fails and is hereby dismissed at the
admission stage itself in limine under Order 41 rule 11 CPC. However, no
order as to the costs.
17. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/16/2023
1:33:56 PM
