Heera Bai vs Ramesh Kumar & Ors.
2023 Latest Caselaw 440 MP

1                                                            S.A. No. 392 of 2003

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                             BEFORE
      HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                 ON THE 09th OF JANUARY, 2023

                SECOND APPEAL No. 392 of 2003

     BETWEEN:-
1.   HEERA BAI, WIDOW OF KANHAIYA LAL
     MISHRA    AGED   ABOUT    69   YEARS,
     OCCUPATION-HOUSE WIFE RESIDENT OF
     VILLAGE-PAWAI, THE. & DISTRICT PANNA
     (M.P.)

                                                   .....APPELLANT
     (MS. NEELAM GOEL, ADVOCATE)


     AND

1.   RAMESH KUMAR, S/O BADLA (HARIJAN)
     DORIYA AGED 45 YEARS, OCCUPATION
     SERVICE R/O VILLAGE-PAWAI, TEHSIL PAWAI,
     DISTRICT-PANNA(M.P.)

2.   THE STATE OF M.P. THROUGH DISTRICT
     MAGISTRASTE PANNA (M.P.)

                                                .....RESPONDENTS


...................................................................................................................................................................

      This appeal coming on for admission this day, Court passed the
following:
 2                                                                  S.A. No. 392 of 2003

                                ORDER

This second appeal has been preferred by the plaintiff/appellant challenging the judgment & decree dated 12.03.2003 passed by learned District Judge, Panna in Civil Appeal No.13-A/2001 reversing the judgment & decree dated 09.03.2001 passed by learned Civil Judge Class-I, Pawai, District Panna in Civil Suit No. 35-A/1998, whereby trial Court decreed the suit granting relief of declaration of title and restoration of possession in the suit filed for declaration of title and permanent injunction, which in appeal has been dismissed.

2. In short the facts are that the plaintiff-Heera Bai claiming herself to be owner of land Survey No. 3378 area 0.144 Are, situated in Village Pawai, District Panna prayed for decree of declaration of title and permanent injunction over an area 50x100 with the specific and clear pleadings in para 3-6 of the plaint that except the disputed portion (50x100), the plaintiff is in possession and the defendant 1 has by raising construction, taken possession over the disputed land for last five years, who started raising construction even during pendency of previous civil suit no. 79-A/88 and upon asking has refused to leave possession by giving threatening.

3. The defendant 1 by filing written statement denied the plaint allegations and claiming himself to be in possession for more than 50 years claimed to have acquired title by adverse possession and also contended that the suit is barred by limitation.

4. Learned trial Court on the basis of pleadings of the parties held that the plaintiff is owner of the suit property and the defendant has not acquired title by adverse possession. However, beyond the pleadings

and relief in the plaint, granted relief of possession after removal of construction of house, vide judgment & decree dated 09.03.2001.

5. Upon filing appeal by the defendant, learned first appellate Court vide judgment & decree dated 12.03.2003 reversed the judgment & decree of trial Court and dismissed the suit. In para 7, learned first appellate Court has observed that in absence of relief of possession and for want of valuation and payment of Court fee for that purpose, the relief of permanent injunction cannot be granted in view of Section 34 of the Specific Relief Act. By recording several other findings learned first appellate Court dismissed the suit.

6. Learned counsel for the appellant/plaintiff concedes that in the plaint there is no relief of possession of the suit property and submits that even in absence of relief of possession, the suit can be decreed and the learned trial Court had not committed any illegality in passing the judgment & decree, as such prays for admission of the second appeal. In support of her submissions, learned counsel placed reliance on the decision of Supreme Court in the case of Akkamma & Ors. Vs. Vemavathi & Ors. 2021 (14) SCALE 293.

7. Heard learned counsel for the appellant and perused the record.

8. In para 3 of the plaint, the plaintiff has averred that the defendant 1 has after taking possession over an area 50x100 raised construction of house for last five years and in para 5-6 of the plaint averred that during pendency of the civil suit no. 79-A/88, the defendant no.1 raised one hut and gradually raised construction of house and took possession over the surrounding land also. At that time the plaintiff stopped the defendant but he assured to leave possession after some time but did not leave and refused to leave possession and threatened the plaintiff.

9. Despite the aforesaid clear pleadings in the plaint itself, the plaintiff, for the reasons best known to her or to her counsel, did not seek relief of possession. The Supreme Court has in the case of Anathula Sudhakar vs. P. Buchi Reddy (2008) 4 SCC 594 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 injunc- tion 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 pos- session 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 injunction 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 possession.

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 relief 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."

10. In view of the aforesaid pronouncement of the Supreme Court, in the instant case where the plaintiff was out of possession and even

when the plaintiff has come with the case that defendant has taken possession over the land in question by raising construction of house, it was obligatory on the part of plaintiff to seek relief of possession. As such in absence of relief of possession, learned first appellate Court has not committed any illegality in dismissing the suit for permanent injunction.

11. So far as the relief of declaration of title is concerned, there is limitation of 3 years provided under Article 58 of the Limitation Act, 1963 from the date when the right to sue first accrues. If undisputed pleadings made in the plaint are taken to be true, then the suit for declaration of title is clearly barred by limitation. As such the decision of supreme court in the case of Akkamma & Ors. (supra) does not come to the rescue of the plaintiff/appellant.

12. Resultantly, this second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC.

13. However, no order as to costs.

14. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.01.13 11:42:38 +05'30'