Ugrasen Jaiswal vs Radhika
2023 Latest Caselaw 5302 MP

                           1                    S.A.No.169/2020



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 31st OF MARCH, 2023
                SECOND APPEAL No. 169 of 2020

BETWEEN:-

UGRASEN JAISWAL S/O THAKURDEEN JAISWAL,
AGED ABOUT 38 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE PAPAL, POLICE
STATION SARAI, TEHSIL SARAI, DISTRICT
SINGRAULI, (MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI JANAK LAL SONI - ADVOCATE FOR THE APPELLANT)

AND

1.    RADHIKA S/O PARMESHWAR KACHHI,
      AGED ABOUT 62 YEARS, OCCUPATION:
      AGRICULTURIST        R/O     VILLAGE
      CHHAMRACHH, POLICE STATION SARAI,
      TEHSIL SARAI, DISTRICT SINGRAULI, M.P.
      (MADHYA PRADESH)

2.    RAMGANESH S/O PARMESHWAR KACHHI,
      AGED ABOUT 55 YEARS, OCCUPATION:
      AGRICULTURIST VILLAGE CHHAMRACHH
      POLICE STATION SARAI TEHSIL SARAI
      (MADHYA PRADESH)

3.    HARIHAR S/O PARMESHWAR KACHHI,
      AGED ABOUT 50 YEARS, OCCUPATION:
      AGRICULTURIST VILLAGE CHHAMRACHH
      POLICE STATION SARAI TEHSIL SARAI
      (MADHYA PRADESH)

4.    UDAYBHAN S/O HIRA KUSHWAHA, AGED
      ABOUT    60  YEARS,    OCCUPATION:
      AGRICULTURIST VILLAGE CHHAMRACHH
      POLICE STATION SARAI TEHSIL SARAI
                               2                         S.A.No.169/2020



     (MADHYA PRADESH)

5.   RAMSAGAR        S/O     WALIKRARAN
     KUSHWAHA, AGED ABOUT 45 YEARS,
     OCCUPATION: AGRICULTURIST VILLAGE
     CHHAMRACHH POLICE STATION SARAI
     TEHSIL SARAI (MADHYA PRADESH)

6.   STATE  OF    MP   THR   COLLECTOR
     SINGRAULI (MADHYA PRADESH)
                                                    .....RESPONDENTS
(BY MS. PRASHANSHA SING BAIS - PANEL LAWYER FOR RESPONDENT
NO.6/STATE)

      This appeal coming on for admission this day, the court passed
the following:
                             JUDGMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 13.12.2019 passed by the 2nd Additional District Judge, Deosar, District Singrauli in RCA No.500077/2014 arising out of judgment and decree dated 27.08.2014 passed by 1st Civil Judge, Class-2, Deosar, District Singrauli in Civil Suit No.200047/2011.

2. The appellants are the defendants, who lost their case before the First Appellate Court.

3. The facts necessary for disposal of the present appeal, in short are that Parmeshwar Kachchi was the owner of disputed land bearing Khasra No.1590 area 2.94 situated in village Chhamrachh, Tahsil - Deosar, District Singrauli. After his death, the names of his legal representatives i.e. the plaintiffs namely Radhika, Ram Ganesh and Harihar and their brother Sitaram were recorded in equal share.

Sitaram devided his share equally amongst himself and his sons and gave 0.73 hectare of land to Harinath and Dasrath. The plaintiffs were having 2.21 hectares of land forming part of Khasra No.1590.

4. It is the case of the plaintiffs that with mutual consent they alienated 0.30 hectares of land to other person, which is not in dispute. Now, only 1.91 hectares of land of Khasra No.1590 is in dispute. It is the case of the plaintiffs that they have not alienated any part of Khasra No.1590 to defendants No. 1 and 2. The defendants No. 1 and 2 had no right or title. In spite of that, the defendants No.1 and 2 have got their names recorded in respect of 0.95 hectares of land forming part of Khasra No.1590. No information was given regarding the mutation1 Thereafter the defendants No.1 and 2 alienated 0.95 hectares of land to defendant No.3 by registered sale deed dated 06.10.2008. The name of the defendant No.3 was mutated without any information to the plaintiffs. Thereafter, defendant No.3 spread a news in village with regard to purchase of 0.95 hectares of land forming part of Khasra No.1590. It was claimed that neither the defendants No.1 and 2 had any share nor they had any right to alienate the property to defendant No.3. The plaintiffs are in possession of the land in dispute i.e. 0.95 hectares of land forming part of Khasra No.1590. The defendant No.3 is threatening to forcibly dispossessed the plaintiffs and it was claimed that in case, if it is found that the plaintiffs are not in possession of the land in dispute then the decree for possession may also be passed and accordingly the suit was filed for declaration of title, permanent injunction or in alternate for possession.

5. The defendants No.1 and 2 were proceeded ex-parte and they did not file any written statement.

6. The defendant No.3 admitted that Parmeshwar Kachchi was the owner and in possession of Khasra No.1590 area 2.94 hectare of land, it was claimed that the defendants No. 1 and 2 were the owner and in possession of the 0.95 hectares of land forming part of Khasra No.1590, which was got by them in mutual exchange with Parmeshwar Kachchi, however, their names were not recorded in the revenue records but the possession was with them. This fact was in the knowledge of the plaintiffs and their father. Even then the names of the plaintiffs were recorded without any information to the defendants No. 1 and 2 and the brother of the plaintiffs namely Sita Prasad was shown as Bhumi Swami. The defendants No.1 and 2 were in possession of the land, which was never objected by the plaintiffs or their brother Sita Prasad. Thereafter, Sita Prasad also got the 0.73 hectare mutated in the name of his sons whereas no information of such mutation was given to the defendants No. 1 and 2. It was claimed that 1.91 hectare of land of Khasra no.1590 is not the ancestral property of the plaintiffs whereas it was pleaded that 0.95 hectare of land was given to defendants No.1 and 2 in exchange in lieu of the land belonging to the defendants No. 1 and 2. Tthereafter the defendants No. 1 and 2 got their name mutated, which was in the knowledge of the plaintiffs and their father Parmeshwar Kachchi. The defendants No. 1 and 2 have alienated 0.95 hectares of land forming part of Khasra No.1590 to the defendant No.3 by registered sale deed dated 06.10.2008 for a consideration of Rs.2,40,000/- and the possession has also been handed

over to defendant No.3 and now the name of the defendant No.3 is recorded in the revenue records. The factum of sale of land is also in the knowledge of the plaintiffs and they had also not objected to the mutation proceedings. Thus, it was claimed that plaintiffs had no right or title in the land in dispute. Fencing has also been done by the defendant No.3. It was further claimed that the suit is not within the period of limitation and the suit has not been properly valued.

7. The trial Court after framing issues and recording evidence dismissed the suit filed by the plaintiffs on the ground that the suit was barred by time. Apart from that, the plaintiffs have failed to prove that they are the owner and in possession of the land in dispute.

8. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiffs preferred an appeal, which has been allowed by the First Appellate Court.

9. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the counsel for the appellants that the plaintiffs were aware of the mutation of the name of the defendants No.1 and 2 and, therefore, the suit should have been filed within a period of three years. Furthermore, the appellants have perfected their title by way of adverse possession and proposed the following substantial questions of law:-

"(i) Whether the Lower Appellate Court wrongly reversed the well reasoned findings of the learned Trial Court who appreciated the documentary and oral evidence held that the plaintiffs were aware of the fact that the suit land is recorded in the name of

respondent No.4 and 5 since the year 2002-03, therefore, suit is held to be barred by time?

(ii) Whether the Lower Appellate Court ignored the documentary evidence Exhibit D-1 to D-9 and the oral evidence of PW-1, Radhika. When name of respondent No.4 and 5 was recorded in Revenue Record, they ought to have been held to be in possession of the suit property therefore, decree for injunction against the appellant is also apparently illegal and arbitrary?"

10. Heard the learned counsel for the appellant.

11. The trial Court had come to a conclusion that the name of the defendants No. 1 and 2 were recorded in revenue records in the year 2002-03 and the plaintiffs were aware of the said mutation and therefore, the suit which was filed on 15.04.2011 is barred by limitation. Whereas, it is the case of the plaintiffs that they came to know about the registered sale deed for the first time in the month of September, 2009. It was the case of the plaintiffs that the mutation of the names of the defendants No. 1 and 2 was illegal. Therefore, the first Appellate Court has held that it cannot be said that cause of action arose in the year 2002-03 but held that since the plaintiffs have alleged that they came to know about alleged sale deed executed by the defendants No.1 and 2 for the first time in September, 2009, therefore, the cause of action arose in the month of September, 2009 and the civil suit was filed on 15.04.2011. Therefore, it was held to be within period of limitation. Even otherwise, it was held by the First Appellate Court that since the sale deed in question was executed by the defendants No.1 and 2 in favour of defendant No.3 on 06.10.2008 and the suit was

filed on 15.04.2011, therefore, if it is held that the cause of action arose on the date of execution of sale deed, still the suit was filed within a period of 3 years.

12. So far as the question of adverse possession is concerned, the trial Court has held that since the plaintiffs were aware of mutation of names of the defendants No.1 and 2 in the revenue records and defendant No.2 was making payment of land revenue etc., therefore, the suit was barred by time as no action was taken within a reasonable period. In order to establish the plea of adverse possession, the party claiming the benefit must plead and prove that not only his possession was open, hostile but it is animus to the knowledge of the true owner but he is in possession for the last more than 12 years.

13. Admittedly, even assuming that the plaintiffs were aware of mutation of names of the defendants No. 1 and 2, still the suit was filed within a period of 12 years from the said date, therefore, by no stretch of imagination, it can be held that the defendants No.1 and 2 have perfected their title by way of adverse possession.

14. Now question for consideration is that where the suit for declaration is to be filed within a period of 3 years but for establishing the plea of adverse possession, defendant has to plead that he is in possession for more than 12 years and if the suit is filed prior to expiry of 12 years then whether the limitation prescribed for declaration would apply or the Article 65 of the Limitation Act would apply.

15. Unless and until the releilf claimed by the plaintiff becomes barred by time in its entirety, it cannot be said that the suit is barred by limitation. The first Appellate Court has come to a conclusion that the

defendants/appellants have failed to prove that they were ever in possession of the land in dispute and accordingly, a decree of permanent injunction has been issued. Even assuming, the appellants/defendants were making payment of land revenue but that by itself would not be sufficient to hold that the respondent/plaintiffs were aware of the fact that names of the defendants No.1 and 2/appellants have been recorded in the revenue records. Furthermore, it is well established principle of law, that revenue entries are not documents of title. Mere mutation entries in the revenue records without delivery of possession would not mean that any cause of action has arisen unless and until a threat is extended to plaintiff to dispossess him on the basis of revenue entry.

16. In the present case, according to the plaintiffs a threat was extended in the year 2009 by the defendant No.3. Furtermore, the defendants No. 1 and 2 did not appear before the trial Court and did not claim that the land in question was exchanged with the plaintiffs or their father in lieu of the land of the defendants No.1 and 2. Thus, where the title of the defendants No. 1 and 2 could not be established by the appellant, then alienation of the property by defendants No.1 and 2 in favour of defendant No.3/appellant would not result in transfer of any title better than what was vested in defendants No. 1 and 2. Since the defendants No.1 and 2 were not owner of the property in question, therefore, there is no question of transfer of title in favour of defendant No.3/appellant.

17. As no perversity in findings of fact recorded by the first Appellate Court could be pointed out by the counsel for the appellant, accordingly no substantial questions of law arises in the present appeal.

18. As consequenti, judgment and decree dated 13.12.2019 passed by the 2nd Additional District Judge, Deosar, District Singrauli in RCA No.500077/2014 as well as judgment and decree dated 27.08.2014 passed by 1st Civil Judge, Class-2, Deosar, District Singrauli in Civil Suit No.200047/2011 are hereby affirmed.

19. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

vinay* Digitally signed by VINAY KUMAR BURMAN Date: 2023.04.05 15:39:11 +05'30'