Madhya Pradesh High Court
Ganga Prasad vs Ramanuj on 12 September, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12 th OF SEPTEMBER, 2023
MISC. PETITION No. 3139 of 2023
BETWEEN:-
1. GANGA PRASAD S/O TEERATH PRASAD, AGED
ABOUT 60 YEARS, OCCUPATION: ADVOCACY AND
AGRICULTURE R/O VILLAGE HARDUA TEHSIL
SEMERIYA DISTRICT REWA (MADHYA PRADESH)
2. SURESH PRASAD S/O TEERATH PRASAD, AGED
ABOUT 58 YEARS, OCCUPATION: AGRICULTURE
R/O VILAGE HARDUA, TEHSIL SEMERIYA
DISTRICT-REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MAHABIR PRASAD SHUKLA - ADVOCATE)
AND
1. RAMANUJ S/O SWAMIDEEN KACHHI, AGED
ABOUT 65 YEARS, OCCUPATION: AGRICULTURIST
R/O KOTA TEHSIL SEMERIYA DISTRICT REWA
(MADHYA PRADESH)
2. RAMBAHORI S/O SWAMIDEEN KACHHI, AGED
ABOUT 60 YEARS, OCCUPATION: AGRICULTURIST
R/O KOTA, TEHSIL SEMERIYA DISTRICT-REWA
(MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
COLLECTOR REWA DISTRICT-REWA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI GOVIND PRASAD PATEL - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 9/15/2023
6:43:46 PM
This petition under Article 227 of Constitution of India has been filed
against the order dated 28.04.2023 passed by Second Civil Judge Junior
Division Sirmour, District Rewa in RCSA-23/2013 by which an application filed
under Order 6 Rule 17 C.P.C has been allowed.
2. It is submitted by the counsel for petitioner that by seeking amendment
the petitioner is trying to take an alternative plea of adverse possession whereas
his original case is based on a sale-deed in his favour. It is submitted that the
amendment was filed after the commencement of trial therefore, the same
should not have been allowed and the nature of suit would be changed.
3. Per contra, counsel for respondent has vehemently opposed the
petition and it is submitted that the petitioner had filed a suit for declaration of
his title. The original suit was based on a sale-deed. By way of amendment the
petitioner has incorporated the alternative plea of adverse possession and
therefore not only the nature of the suit would not be changed but the trial Court
has not committed any mistake by exercising his discretion.
4. Heard the learned counsel for the parties.
5. Undisputed facts are that the petitioner had filed a suit for declaration
of his title and permanent injunction on the ground that the father of defendant
had executed a sale-deed by virtue of said sale-deed, the plaintiff has acquired
the title. However, by filing an application under Order 6 Rule 17 CPC, the
petitioner has incorporated an alternative plea that in case if it is found that the
sale-deed is not admissible in absence of registration then it may be declared
that the petitioner has perfected his title by way of adverse possession.
6. So far as, the contention of counsel for petitioner that the application
was filed after the commencement of suit is concerned, it is suffice to mention
Signature Not Verified
that delay in filing an application under Order 6 Rule 17 CPC by itself is not
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 9/15/2023
6:43:46 PM
sufficient to reject the application. If the Court is of the view that the proposed
amendment is necessary for urgent decision of the case that the same can be
allowed. Therefore, the submission made by counsel for petitioner that since the
application for amendment was filed subsequent to commencement of trial,
therefore it should not have been entertained as a misconceived and is hereby
rejected.
7. However, there is another aspect of the case, the petitioner has filed a
suit for declaration of his title on the basis of a sale-deed. Now by proposing an
amendment, he has taken an alternative plea of adverse possession. Now the
only question for consideration is as to whether the plaintiff can take an
alternative plea of adverse possession along with the plea of title on the basis of
sale-deed.
8. The Hon'ble Supreme Court in the case of Kesar Bai Vs. Genda
Lal and another by order dated 14.10.2022 passed in Civil Appeal No.
7129/2022 has held as under:
"5. Having gone through the impugned judgment and order
passed by the High Court as well as the First Appellate Court
and even that of the learned Trial Court, it appears that the
original plaintiffs prayed for a declaration and claimed the
title/ownership on the basis of the Sale Deed dated
31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also
claimed the title by adverse possession. All the Courts below
have negated the claim of the original plaintiffs of ownership
on the basis of the registered Sale Deed dated 31.08.1967
(Ex.P.1.) Therefore, the only claim on behalf of the plaintiffs
was the plea of adverse possession. So far as the plea of
adverse possession is concerned, the High Court has
specifically framed a substantial question of law (reproduced
hereinabove) and as such has held the same in favour of the
appellant - original defendant No. 1. The High Court has
specifically observed and held that the plea of ownership
based on sale deed and plea of adverse possession, both, are
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 9/15/2023
6:43:46 PM
contrary to each other and the plaintiffs cannot be permitted
to take both the pleas at the same time. Therefore, even as
per the High Court, the claim of the plaintiffs on the basis of
the adverse possession was not tenable. In that view of the
matter and once the substantial question of law on adverse
possession was held in favour of the appellant - original
defendant No.1 and the title/ownership claimed on the basis
of the Sale Deed dated 31.08.1967 (Ex.P.1) was negated by
all the Courts below, thereafter the possession/alleged
possession of the plaintiffs could not have been protected by
passing a decree of permanent injunction in favour of the
plaintiffs. Under the circumstances, the High Court has
materially erred in dismissing the appeal and confirming the
judgment and order passed by the First Appellate Court.
6. In view of the above and for the reasons stated above,
present appeal succeeds. The impugned judgment and order
passed by the High Court passed in Second Appeal No. 8 of
1999 and the judgment and order passed by the First
Appellate Court are hereby quashed and set aside and the
judgment and decree passed by the learned Trial Court
dismissing the suit is hereby restored."
9. In order to establish the plea of adverse possession, the plaintiff or
defendant as may be, is required to admit the title of the opposite party as held
by the Hon'ble Supreme Court in the case of Nand Ram (Dead) Through
Legal Representatives And others vs. Jagdish Prasad (Dead) Through
Legal Representatives reported in (2020) 9 SCC 393.
10. In the present case, the petitioner has claimed his title on the basis of
sale-deed and thus it is his case that he and his predecessor were in permissible
possession. Unless and until the possession of a person is hostile even to the
knowledge of true owner it cannot be said that he has perfected his title by way
of adverse possession. Even long possession is not sufficient to hold that the
plaintiff or defendant, as the case may be, has perfected his title by way of
adverse possession. Since the plea of title on the basis of sale-deed as well as
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 9/15/2023
6:43:46 PM
an alternative plea of adverse possession cannot co-exist, accordingly the trial
Court committed a materiel illegality by allowing the application filed by
respondent under Order 6 Rule 17 CPC. Accordingly, order dated 28.04.2023
(Annexure-P/6) passed by Second Civil Judge Junior Division Sirmour, District
Rewa in RCSA-23/2013 is hereby set aside. Application filed under Order 6
Rule 17 CPC is hereby rejected.
11. The miscellaneous petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
Prar
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 9/15/2023
6:43:46 PM
