Daulatsingh vs Bhagwansingh
2024 Latest Caselaw 4758 MP

Madhya Pradesh High Court

Daulatsingh vs Bhagwansingh on 19 February, 2024

Author: Anil Verma

Bench: Anil Verma

                                            1


       IN THE HIGH COURT OF MADHYA PRADESH
                                   AT INDORE
                                      BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA
                     ON THE 19th OF FEBRUARY, 2024
                     SECOND APPEAL No. 648 of 2003

   BETWEEN:-
   DAULATSINGH S/O BIHARILAL, AGED ABOUT 55
   YEARS, R/O - VILLAGE DHANKHEDI, TEHSIL
   NARSINGHGARH, DISTRICT RAJGARH (MADHYA
   PRADESH)
                                                                      .....APPELLANT
   (BY SHRI R.C. CHHAJED - ADVOCATE)

   AND
   BHAGWANSINGH S/O NAWAL SINGH, AGED
   ABOUT 55 YEARS, R/O - VILLAGE DHANKHEDI,
1. TEHSIL NARSINGHGARH, DISTRICT RAJGARH
   (MADHYA PRADESH)
    LAKHAN SINGH S/O NAWAL SINGH, AGED
    ABOUT 50 YEARS, R/O - VILLAGE DHANKHEDI,
 2.
    TEHSIL NARSINGHGARH, DISTRICT RAJGARH
    (MADHYA PRADESH)
    GODAWARIBAI WD/O NAWAL SINGH, AGED
    ABOUT 85 YEARS, R/O - VILLAGE DHANKHEDI,
3.
    TEHSIL NARSINGHGARH, DISTRICT RAJGARH
    (MADHYA PRADESH)
    THE STATE OF MADHYA PRADESH THROUGH
4.
    COLLECTOR, RAJGARH (MADHYA PRADESH)
                                                                   ...RESPONDENTS
   (SHRI AMIT RAWAL - GOVERNMENT ADVOCATE FOR RESPONDENT
   NO.4/STATE)
-----------------------------------------------------------------------------------------
      This appeal coming on for hearing this day, the court passed the
following:
                                     2




                             JUDGMENT

1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (in short "CPC") has been preferred against the impugned judgment and decree dated 22.4.2003 passed by the Addl. District Judge, Narsinghgarh, District Rajgarh (Biaora) in First Appeal No.31A/99, while allowing the appeal but refusing to grant the decree of declaration in terms of compromise petition.

2. The appellant/plaintiff filed a suit for declaration of title and permanent injunction against the defendants on the ground that the defendants have agreed to sell the agricultural land bearing Survey No.391/1 Area 2.428 hectare on 9.6.79 situated at village Dhankhedi in respect of the land admeasuring 9 Bigah 10 Biswas. The consideration of Rs.10,450/- was paid to them and possession of the aforesaid land was delivered on the date of agreement, but thereafter defendants did not execute the registered sale deed as per the agreement. Plaintiff is in uninterrupted possession of the suit land since 1979 within the knowledge of the defendants and accordingly acquired title by adverse possession. The said suit was contested by the defendants by stating that the plaintiff has forcefully obtained possession of the suit land. Defendants have also filed a suit No.78-A/84, however the same was dismissed vide judgment dated 16.1.1986.

3. The defendants filed the written statement and counter-claim. The counter claim was resisted by the plaintiff. The trial court after framing

the issues and recording evidence and after hearing both the parties, dismissed the suit filed by the appellant and decreed the counter-claim filed by the defendants. Then appellant preferred first appeal. During the pendency of the appeal, defendants filed a compromise application before the first appellate court by stating that the matter has been amicably settled between both the parties. But the first appellate court passed the impugned order and held that the appellant is not in continuous possession of the suit land for the period of last 12 years and he is not acquiring any title by adverse possession. Defendants can execute registered sale deed in favour of the plaintiff. The appellate court has granted only limited decree of permanent injunction in favour of the plaintiff that the defendants shall not interfere in the possession of the plaintiff's land bearing Survey No.391/1 situated on the western side admeasuring 1.138 hectare and plaintiff shall deliver the possession of the remaining land to the defendants. Being aggrieved by the aforesaid judgment and decree, this second appeal has been preferred by the appellant.

4. This second appeal has been admitted on the following substantial question of law:-

"Whether, the learned appellate court erred in law in partly allowing and partly rejecting the application for compromise filed under Order 23 Rule 3 of the CPC."

5. From perusal of the record, it appears that the compromise application filed before the first appellate court has been partly allowed and partly dismissed.

6. Learned counsel for the appellant submits that as per the law the compromise application should not be partly allowed or partly dismissed, therefore, the impugned order passed by the First Appellate Court is bad in law. First appellate court has no option to allow the compromise application, but it is noteworthy that appellant is seeking declaration of title over the suit property on the basis of the adverse possession under Article 65 of the Limitation Act. In the instant matter, only agreement to sell has been executed and admittedly no registered sale deed has been executed in favour of the appellant in respect of the suit property.

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 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."

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 the Limitation 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.

10. In the instant case, the appellant/plaintiff did not produce any relevant Khasra Panchnama or Kistbandi Khatoni of the said land in order to establish that his possession on the suit land is adequate in continuity in publicity for the period of more than 30 years. But on the contrary respondents No.1 to 3 have filed a civil suit against the appellant for declaration of title and recovery of possession, which was registered as Civil Suit No.78-A/84, later on it has been dismissed on 16.1.1986 vide order Ex.P/11. Written statement in the said litigation is Ex.P/13. Therefore, such litigation regarding suit land is sufficient to

show that appellant/plaintiff was not found in the continuous possession of the suit land uninterruptedly and his title has been challenged before the civil court. Therefore, on the basis of the aforesaid, appellant has failed to prove adverse possession on the suit land, hence findings given by the first appellate court appears to be just and proper.

11. Learned counsel for the appellant further contended that the first appellate court has no jurisdiction to inquire the lawfulness of the compromise. A decree passed on the basis of the compromise by and between the parties, which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court's imprimaturs its affixed to give it the sanctity of an executable Court order. Court must, however, point out that the Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. In the case of Union Carbide Corporation Vs. Union of India reported in AIR 1992 SC 248 it has been held that validity of consent order depends wholly on legal validity of agreement on which it rests.

12. In the instant case, it is admitted position that no registered sale deed has been executed in favour of the appellant. Instead of executing the registered sale deed in valid way, the appellant is playing foul legal tactics to defeat the provisions of law regarding the registration of the sale deed and also avoiding for depositing registration fee and other valid dues to the government. Therefore, same was not opposed by the defendants. Even before this Court defendants have remained absent. It is sufficient to establish that there is a collusion between both the

parties to defeat the provisions of law. Therefore, the compromise application is partly found against the law and the first appellate court has rightly rejected the same portion. The aforesaid findings recorded by the first appellate court are well reasoned and appellant has failed to show that how the findings of fact recorded by the courts below are illegal, perverse and based upon no evidence.

13. The Supreme Court in number of cases has held that in exercise of powers under Section 100 of the CPC the Court can 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 reported in 2011(7) SCC 189 and Union of India Vs. Ibrahim Uddin reported in 2012(8) SCC 148.

14. Accordingly, the answer to the substantial question of law is that the first appellate court has not erred in law in partly allowing and partly rejecting the application for compromise filed under Order 23 Rule 3 of CPC.

15. Accordingly, present second appeal sans merit and is hereby dismissed. No order as to the costs.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-

Date: 2024.02.21 10:59:12 +05'30'