Jatan vs Tandu
2024 Latest Caselaw 3155 MP

Madhya Pradesh High Court

Jatan vs Tandu on 2 February, 2024

Author: Hirdesh

Bench: Hirdesh

                           --1--

IN THE      HIGH COURT         OF MADHYA PRADESH

                     AT I N D O R E
                         BEFORE
            HON'BLE SHRI JUSTICE HIRDESH

             ON THE 2nd OF FEBRUARY, 2024



             SECOND APPEAL No. 1604 of 2023

BETWEEN:-
1. JATAN S/O RICHU, AGED ABOUT 40 YEARS, OCCUPATION:
   AGRICULTURE R/O GRAM GHUTIYADEV TESHIL KUKSHI DISTT.
   DHAR (MADHYA PRADESH)
2. VAGU S/O RATNIYA LATE THR LRS RAILBAI W/O VAGU, AGED
   ABOUT 60 YEARS, OCCUPATION: AGRICULTURE R/O GRAM
   GHUTIYADEV TESHIL KUKSHI DISTT. DHAR (MADHYA PRADESH)
3. VAGU S/O RATNIYA LATE THR LRS KAILASH S/O VAGU, AGED
   ABOUT 40 YEARS, OCCUPATION: AGRICULTURE R/O GRAM
   GHUTIYADEV TESHIL KUKSHI DISTT. DHAR (MADHYA PRADESH)
                                             .....APPELLANT

(SHRI DURGESH SHARMA, LEARNED COUNSEL FOR THE APPELLANTS)


AND
1. TANDU S/O HEMRAJ, AGED ABOUT 65 YEARS, OCCUPATION:
   AGRICULTURE R/O GRAM GHUTIYADEV TEHSIL KUKSHI
   DISTT.DHAR (MADHYA PRADESH)
2. KALU S/O HABU, AGED ABOUT 50 YEARS, OCCUPATION:
   AGRICULTURE R/O GRAM GHUTIYADEV TESHIL KUKSHI DISTT.
   DHAR (MADHYA PRADESH)
3. DONGRIYA S/O SADU, AGED ABOUT 40 YEARS, OCCUPATION:
   AGRICULTURE R/O GRAM GHUTIYADEV TESHIL KUKSHI DISTT.
   DHAR (MADHYA PRADESH)
4. LATE BHADU S/O HABU THR LRS SMT. NURIBAI W/O LATE BHADU,
   AGED ABOUT 47 YEARS, OCCUPATION: AGRICULTURE R/O GRAM
   GHUTIYADEV TESHIL KUKSHI DISTT. DHAR (MADHYA PRADESH)
                                                 --2--

5. SURJI S/O VAGJI, AGED ABOUT 68 YEARS, OCCUPATION:
   AGRICULTURE R/O GRAM GHUTIYADEV TESHIL KUKSHI DISTT.
   DHAR (MADHYA PRADESH)
6. RAJYA SASAN M.P. DWARA COLLECTOR DHAR (MADHYA
    PRADESH)
7. ANUBIBHAGIYA ADHIKARI RA. AVAM BHU ARJAN ADHIKARI
   KUKSHI DISTRICT DHAR (MADHYA PRADESH)
                                                                          .....RESPONDENTS
(SHR ANAND BHATT, LEARNED DEPUTY GOVERNMENT ADVOCATE FOR
THE RESPONDENT NO.6)
-------------------------------------------------------------------------------------------------------

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

                                         JUDGMENT

This second appeal under Section 100 of CPC has been preferred by the appellants/plaintiffs against the judgment and decree dated 31.03.2023 passed by II-District Judge, Kukshi, District-Dhar in RCA No.6/2019 arising out of the judgment and decree dated 14.12.2018 passed by Civil Judge, Class-II, Kukshi, District-Dhar in Civil Suit No.41/2017 by which first appellate court affirmed the findings of the trial court in which appellants/plaintiff filed a suit for declaration and permanent injunction, which was rejected by the trial court.

2. Brief facts of the case are that a suit was filed by the appellants/plaintiffs for the suit land bearing survey Nos.45, 46, 47/1 and 47/2 area 2.518, 0.219 and 3.732 Hectare situated in village-Ghutiyadev, Tehsil-Kuksh, District-Dhar (hereinafter referred as "suit land"). Plaintiffs pleaded in the suit that they are doing agricultural work since ancestral time on the suit land since last 75-80 years in the knowledge of the defendants. He further stated that these lands were recorded in the name of the defendants but, plaintiffs and his ancestors have been in continuous

--3--

possession of the suit land for 70-80 years in the knowledge of the defendants so their title of Morosi Krushak was approved and now they have become owner of the suit land, therefore, pray for declaration of title of the suit land and also for direction to the State to grant compensation of the suit land.

3. Respondents/defendants filed written statement and denied all the averments pleaded in the plaint and submitted that they are owners and possession holder of the disputed land and they received award from the State and there is no possession of the plaintiffs over the suit land, therefore, prayed for dismissal of the suit.

4. On the aforesaid pleading, trial court framed issues and recorded evidence of the parties. Trial court after recording evidence and upon appreciation of the evidence passed the judgment and decree dated 14.12.2018 whereby the suit filed by the plaintiffs/appellants for declaration was dismissed. The judgment and decree passed by the trial court was challenged by the appellants/plaintiffs against the dismissal of their suit for relief of declaration and injunction before first appellate court and first appellate court also affirmed the judgment and decree passed by the trial court and dismissed the appeal filed by the appellants.

5. Being aggrieved by the judgment and decree dated 31.03.2023 passed by first appellate court, the appellants/plaintiffs filed this second appeal submitting that the judgment of the courts below are illegal and are not based on just and proper appreciation of the evidence.

6. Both the Courts below have failed to consider oral as well as documentary evidence produced by the appellants. He further submits that both the Courts below have ignored the pleadings made by the appellants, therefore, findings of both the courts below are perverse

--4--

which is against evidence available on record. Thus, in the light of the aforesaid, he submits that the appeal deserves to be admitted on the substantial questions of law proposed by the appellants.

7. Heard the learned counsel for the parties and perused the records of both the courts below with due care.

8. From perusal of the record of the trial court, it appears that appellants/plaintiffs filed a civil suit for declaration of title and permanent injunction, therefore, burden lies upon the appellants to prove their case that they acquired title of suit land as Morosi Kaashtkaar. Thus, it was also filed for acquirement of title of adverse possession.

9. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" - nec vi, nec clam and nec precario". In other words, he must show that his possession is adequate in continuity in publicity and in extent. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

10. In the case of Ravinder Kaur Grewal and others Vs. Manjit Kaur and others reported in 2019(2) RN 129 (SC), it has been held that:-

"48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and

--5--

extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.

50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by reentry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated."

11. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on 'title' as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession

--6--

within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession. In Article 65 in the opening part a suit "for possession of immovable property or any interest therein based on title" has been used. Expression "title" would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession has been held in a catena of decisions.

12. Appellants/plaintiffs deposed before the trial court that they have acquired the land as Morosi Kaashtkaar. They have been in possession of the suit land for 75-80 years and doing agriculture on the said land since then continuously. This fact is in the knowledge of the respondents/defendants, so, they are keeping continuous adverse possession over the suit land for 75-80 years. Therefore, they have acquired their title of the suit land. But, perusal of the record it is found that in revenue record, suit land was in the names of the defendants. Appellants also admitted in their evidence that suit land was neither mutated in their names nor possession was recorded in revenue record in their names. Therefore, on the basis of the evidence of the plaintiffs/appellants, they have failed to prove that possession is adequate and they are in continuous possession for a period of more than 12 years over the suit land against the defendants. Therefore, on the aforesaid evidence, trial court as well as first appellate court have given concurrent findings that appellants/plaintiff have failed to prove possession over suit land and perfected their title over suit land.

--7--

13. In the light of the aforesaid discussion, this Court is of the considered opinion that the impugned judgment passed by both the courts below are well reasoned and based upon the due appreciation of oral as well as documentary evidence available on record. The findings recorded by both the courts below are concurrent findings of facts. The appellant has failed to show that how the findings of facts recorded by both the courts below are illegal, perverse and based on no evidence. Thus, no substantial question of law arises for consideration in the present second appeal.

14. Enunciation of law by the Hon'ble Apex Court in the case of Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Patam, reported in (2015) 16 SCC 540 empowers this Court to finally dispose of this appeal without framing the substantial questions of law at the admission stage itself. The observation made by Hon'ble Supreme Court is reproduced hereinbelow :-

"In our opinion, a substantial question of law is not required to be framed if the High Court decides to dismiss the second appeal at an admission stage. Only in a case where the second appeal is admitted or is decided finally by allowing the same, a substantial question of law is required to be framed by the High Court. In the instant case, no substantial question of law was involved in the second appeal and therefore, the High Court had rightly dismissed the second appeal at the admission stage by passing the impugned order. We, therefore, see no reason to entertain this Petition."

15. The Supreme Court in number of cases has held that in exercise of powers under Section 100 of the Code of Civil Procedure can

--8--

interfere with the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain vs. Abdul Majeed & others, 2011 (7) SCC, 189 and Union of India vs. Ibrahim Uddin, 2012 (8) SCC 148.

16. Accordingly, present second appeal sans merit and is hereby dismissed at the admission stage for the reasons indicated above.

(HIRDESH) JUDGE N.R.