Madhya Pradesh High Court
Moti vs Sudama on 8 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 8th OF FEBRUARY, 2024
SECOND APPEAL No. 987 of 2019
BETWEEN:-
MOTI S/O SHRI DHANNAJI BALAI, AGED ABOUT 75 YEARS,
1. KARNABUJURG TEHSIL KHATEGAON DISTT DEWAS
(MADHYA PRADESH)
SAJAN S/O SHRI MOTI BALAI, AGED ABOUT 50 YEARS,
2. OCCUPATION: AGRICULTURIST KARNABUJURG, TEHSIL
KHATEGAON, (MADHYA PRADESH)
KAILASH S/O SHRI MOTI BALAI, AGED ABOUT 47 YEARS,
3. OCCUPATION: AGRICULTURIST KARNABUJURG, TEHSIL
KAH (MADHYA PRADESH)
BABULAL S/O SHRI MOTI BALAI, AGED ABOUT 44 YEARS,
4. OCCUPATION: AGRICULTURIST KARNABUJURG, TEHSIL
KHATEGAON, (MADHYA PRADESH)
HARI S/O SHRI MOTI BALAI, AGED ABOUT 40 YEARS,
5. OCCUPATION: AGRICULTURIST KARNABUJURG, TEHSIL
KHATEGAON, (MADHYA PRADESH)
.....APPELLANTS
(SHRI VISHWAMBHAR VARANGAONKAR, ADV OCATE FOR
APPELLANTS)
AND
SUDAMA S/O SHRI GOPI ADOPTED FATHER SHRI
RAMKISHAN BALAI OCCUPATION: AGRICULTURIST
1.
KARNABUJURG TEHSIL KHATEGAON DISTT DEWAS
(MADHYA PRADESH)
RAMCHARAN S/O SHRI KISHAN BALAI, AGED ABOUT 60
2. YEARS, OCCUPATION: AGRICULTURIST KARNABUJURG,
TEHSIL KHATEGAON, (MADHYA PRADESH)
NARMADAPRASAD S/O SHRI RAMKISHAN BALAI, AGED
3. ABOUT 55 YEARS, OCCUPATION: AGRICULTURIST
KARNABUJURG, TEHSIL KHATEGAON, (MADHYA PRADESH)
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 12-02-
2024 20:21:23
2
HARIPRASAD S/O SHRI KISHAN BALAI, AGED ABOUT 50
4. YEARS, OCCUPATION: AGRICULTURIST KARNABUJURG,
TEHSIL KHATEGAON, (MADHYA PRADESH)
SHREE S/O SHRI KISHAN BALAI, AGED ABOUT 45 YEARS,
5. OCCUPATION: AGRICULTURIST KARNABUJURG, TEHSIL
KHATEGAON, (MADHYA PRADESH)
MUKESH S/O SHRI RAJARAM BALAI, AGED ABOUT 40 YEARS,
6. OCCUPATION: LABOUR SETHI NAGAR, INDORE (MADHYA
PRADESH)
GAJU S/O SHRI RAJARAM BALAI, AGED ABOUT 35 YEARS,
7. OCCUPATION: LABOUR SETHI NAGAR, INDORE (MADHYA
PRADESH)
COLLECTOR THE STATE OF MADHYA PRADESH DEWAS
8.
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI ANAND BHATT, ADVOCATE FOR RESPONDENT/STATE)
This appeal coming on for hearing this day, the court
passed the following:-
ORDER
Appellants/plaintiffs have preferred this second appeal
under Section 100 of Code of Civil Procedure, 1908, against the
judgment and decree dated 28.12.2018 passed by Additional
District Judge, Khategaon, District-Dewas (MP) in Regular Civil
Appeal No.32A of 2017 arising out of the judgment and decree
dated 30.10.2017 passed in Civil Suit No.6A of 2015 by Second
Civil Judge, Class-1, Khategaon, District-Dewas, by which the suit
of plaintiffs was dismissed and the appeal has been confirmed of
judgment and decree of trial Court.
(2) The facts of the case is that the appellant No.2 to 5 are the
son of appellant No.1 while the respondent No.2 to 5 are the son of
Gopibai w/o Shri Kishan and respondent No. to 7 are the legal
representative of late Rajaram. The suit land is bearing survey
no.183 situated at village-Karnabujurg, Tehsil-Khategaon, District-
Dewas (MP) and house admeasuring 3x32 square feet is situated
on the suit land on which the appellant is in possession and he is in
possession from the date of filing of the suit.
(3) That, as per pleadings of the appellant before the trial Court
is that appellant No.1 is the nephew of Ramkishan and from 28
years the suit property was belonging to Ramkishan but as the
appellant No.1 was the nephew so the appellant purchase the ten
acres of the land out of the suit property and apart from this,
another 10 acres of land on which kachha makan (hut) was
constructed and later on donated to appellant by Ramkishan. It is
averred that after demolishing the said house the appellant
constructed a new house ad-measuring 36 x 32 fts and after getting
the suit property in donation by late Ramkishan the appellants are
continuously residing and using without any obstruction since
1986. In this way, the appellants acquired the rights of
Bhumiswami and in alternate the rights of Bhumiswami has been
riped up. Apart from this, it was also pleaded that by adverse
possession the appellants are required the right of ownership in the
suit property.
(4) That, before the trial Court the respondent No.2 and 3
remain ex-parte while the respondents No.1, 6 and 7 have given
their separate written statements denying the pleadings made in the
plaint by submitting that the revenue records is in the name of
Rajaram, Gopi and Ramkishan and secondly they have given the
permission to reside in the house to the appellant only for about
four to five years ago. Hence, prays for dismissal of the suit.
(5) That, on the basis of aforesaid pleadings, the trial Court has
framed the issues and after taking oral and documentary evidence,
the trial Court has rejected the suit filed by the
appellants/plaintiffs.
(6) Being aggrieved by the judgment and decree dated
30.10.2017 passed by trial Court, the plaintiffs have preferred the
first appeal before the first appellate court and after hearing both
the parties has rejected the appeal by affirming the judgment and
decree passed by the trial Court.
(7) I have heard counsel for the appellants/plaintiffs and
perused the record of the case.
(8) The appellants/plaintiffs have filed the suit before the trial
Court on the ground that the suit property was donated to him by
late Ramkishan and he further pleaded that Ramkishan gifted the
land to appellant/plaintiff Moti. On perusal of the trial Court
record, it was found that plaintiffs were unable to examine the
Moti that he is still alive and hence in lack of evidence of plaintiff
moti and the fact that plaintiff was unable to prove his case that the
disputed land was gifted by Ramdas by plaintiff Moti.
(9) In view of the aforesaid discussion, the courts below have
not committed any error in holding the fact that the plaintiffs were
unable to prove that the suit land was gifted to him by late
Ramkishan. Hence, no interference is called for in the findings
recorded by the courts below.
(10) From the perusal of record, it appears that the
appellants/plaintiffs had filed the civil suit on the ground of
adverse possession also. So the burden of proof lies upon the
appellants/plaintiffs to prove their case that they acquired the title
of the suit land by adverse possession.
(7) 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.
(8) 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
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 re-entry 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."
(9) 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 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.
(11) Considering the judgments of both the courts below, it was
found that the plaintiffs were unable to prove that they accrued the
title by way of adverse possession and in view of aforesaid
evidence both the courts below have given concurrent findings that
plaintiffs/appellants have failed to prove adverse possession and
perfected the title over the suit land.
(12) 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 appellants have 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.
(13) 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."
(14) The Supreme Court in number of cases has held that in
exercise of powers under Section 100 of the Code of Civil
Procedure can interfere with the findings of facts 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.
(15) Accordingly, present second appeal sans merit and is hereby
dismissed at the admission stage for the reasons indicated above.
(16) Certified copy, as per Rules.
(HIRDESH)
Arun/- JUDGE
