Uma Prasad vs Shyam Lal Singh & Ors.
2024 Latest Caselaw 6202 MP

Madhya Pradesh High Court

Uma Prasad vs Shyam Lal Singh & Ors. on 29 February, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

      IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                             BEFORE
      HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                  ON THE 29th OF FEBRUARY, 2024
                   SECOND APPEAL No. 616/1994


BETWEEN:-

1.    UMA PRASAD, S/O RAM DULARE, R/O
      BODA, TAHSIL - HUZUR, DISTRICT
      REWA (MADHYA PRADESH)

                                             ......APPELLANT
(SHRI VIPIN YADAV AND SHRI RAUNAK YADAV - ADVOCATES)


AND

1.    SHYAM LAL SINGH (DIED THROUGH LRs)

1A.   JABBAR SINGH S/O SHYAM LAL SINGH,
      AGED ABOUT 48 YEARS.

1B.   GYANEDRA SINGH S/O SHYAM LAL SINGH,
      AGED ABOUT 40 YEARS.

1C.   SATYENDRA SINGH S/O SHYAMLAL SINGH,
      AGED ABOUT 36 YEARS.

      [ALL SONS OF SHYAMLAL SINGH
      RESIDENTS OF BADA, TAHSIL, HUJUR,
      DISTRICT REWA]

2.    SHIV PRATAP (DIED THROUGH LRs)
2A.   SATYA NARAYAN S/O SHIV PRASAD, AGED
      45 YEARS.
                                           -    2 -




2B.    BALMIK S/O SHIV PRASAD, AGED 35
       YEARS.

2C.    KAUSALYA          D/O     SHIV         PRASAD      AGED
       ABOUT 50 YEARS. Wd/O RAM BIHARI, R/O
       VILLAGBE          SENDHAHAI,            TAH.    HUZUR,
       DISTT. REWA (M.P)

2D.    SMT. TARA DEVI D/O SHIV PRASAD W/O
       RAMGARI R/O VILLAGE AGDAL, TAH.
       HUZUR, DISTT. REWA.

       [2A AND 2B ARE RESIDENTS OF BODHA
       TAHSIL HUZUR DISTRICT REWA (M.P)]

3.     DALCHAND S/O BACHULAL, R/O BUDDAR,
       ROAD, SHAHDOL (M.P)
                                                                ........RESPONDENTS
(NONE)
-----------------------------------------------------------------------------------------------
       This appeal coming on for final hearing this day, the court passed
the following:
                                  JUDGMENT

This second appeal has been preferred by the appellant/plaintiff

challenging judgment and decree dated 13.07.1994 passed by District

Judge, Rewa in Civil Appeal No.72-A/1984 affirming judgment and

decree dated 30.04.1984 passed by First Civil Judge Class-II, Rewa in

Civil Suit No.83-A/1971 whereby appellant/plaintiff's suit for declaration

of title, recovery of possession and permanent injunction in respect of

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agricultural land Survey Nos. 220, 221, 223, 225, 226, 227, 240, 235 &

236 situated in Village Boda, Tahsil Huzur, District Rewa was decreed

partly, in respect of the land Survey Nos. 220, 221, 223, 225, 226, 227 &

240 which in civil appeal filed by defendants 1-2 (Shyamlal and Shiv

Pratap) was reversed, dismissing the suit in its entirety.

2]. Facts in short are that, plaintiff instituted the suit with the

allegations that the land in question belonged to plaintiff's grandfather-

Vanshgopal and was mortgaged by him with defendant 3's father-

Bachchulal and after getting redeemed the mortgage on 19.06.1943, he

took possession over the land. It is also alleged that thereafter Vanshgopal

sold Survey No. 235 & 236 to Ram Kumar and Survey No. 222 to

defendant 1-Shyamlal Singh but, Vanshgopal remained in possession till

his lifetime, who died in the year 1946, thereafter plaintiff's father Ram

Dulare (i.e. son of Vanshgopal) remained in possession, who died in the

year 1950, thereafter mother of plaintiff took care of the land, but she also

left the Village Boda in the year 1957 in the minority of plaintiff,

thereafter the plaintiff's cousin Harihar Prasad took care of the land. It is

alleged that the defendant 1 in addition to the land survey no.222 also got

the land Survey Nos. 235, 236, 220, 221, 223, 226 & 227 mentioned in

the sale deed dated 19.06.1943 and started claiming himself to be owner

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and the defendant 2 took forcible possession over the land Survey

Nos.226, 227 & 240 in the month of July 1958 and got recorded the same

in Khasra showing it to have been received from defendant 1 in

exchange. The defendant 1 in connivance with father of defendant 3 got

the land Survey Nos. 223, 225 & 240 mutated in his name on 25.04.1959.

Alleging the defendant 1 to be in illegal possession, the suit was filed.

3]. The defendants 1-2 filed joint written statement denying the plaint

allegations and contended that Vanshgopal sold the land Khasra Nos.220,

221, 222, 223, 225 & 227 on 19.06.1943 to the defendant 1 and handed

over possession, however it is contended that land of Khasra No.235 &

236 was not sold but these numbers were mentioned mistakenly in the

sale deed. Similarly the land Khasra No.225 was left from mentioning in

the sale deed. It is contended that w.e.f. 19.06.1943 grandfather or father

of plaintiff did not remain in possession, but the defendants 1-2 are in

continuous possession. It is also contended that the defendants have also

acquired title by adverse possession and their possession deserves to be

protected under Section 53-A of the T.P. Act and the suit is barred by

limitation. With these contentions the suit was prayed to be dismissed.

4]. Despite service of summons, the defendant 3 did not appear and

was proceeded ex-parte.

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5]. On the basis of pleadings of the parties, trial Court framed as many

as 14 issues and recorded evidence of the parties. The plaintiff in support

of his case examined himself-Uma Prasad (PW-1), Ram Sharan (PW-2),

Shibba (PW-2), Buddh Sen (PW-3), Ramesh Kumar Dwivedi (PW-4),

Hanuman Prasad (PW-5), Gaya Prasad Singh (PW-6), Bhagwanti (PW-7),

Harihar Prasad (PW-8), Badri Prasad (PW-9), Shiv Prasad (PW-10), Nand

Kumar (PW-11) and produced documentary evidence (Ex.P-1 to P-42).

Similarly the defendants examined Darbarilal Shrivastava (DW-1), Ram

Sajeevan Mishra (DW-2), Shyamlal Singh (DW-3), Shiv Pratap (DW-4),

Ramkumar (DW-5), Harihar Prasad (DW-6), Sugreev Singh (DW-7),

Balmik Singh (DW-8), Ram Swaroop Singh (DW-9) and produced

documentary evidence (Ex.D-1 to D-29).

6]. Upon consideration of aforesaid material available on record, trial

Court vide judgment and decree dated 30.04.1984 decreed the suit partly

holding the plaintiff to be bhoomiswami and entitled for possession of

land Survey Nos.220, 221, 223, 225, 226, 227 & 240 and dismissed the

suit in respect of land Survey Nos. 222, 235 & 236 holding it to have

been sold to the defendant 1 vide sale deed dated 19.06.1943 (Ex.D-2).

7]. Against the aforesaid judgment and decree dated 30.04.1984 Civil

Appeal No.72-A/1984 was filed by defendants which came to be decided

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on 14.12.1984 and matter was remanded to trial Court for inquiry in

relation to possession of the parties to the suit during the year 1943 to

1955.

8]. In pursuance of said judgment of remand, trial Court vide judgment

and decree dated 18.02.1985 held that despite execution of sale deed, the

plaintiff remained in possession of entire land and decreed the suit in its

entirety.

9]. Against judgment and decree dtd. 18.02.1985, defendants preferred

appeal which came to be decided on 12.09.1985 and by allowing the

appeal, the suit was dismissed.

10]. At the instance of plaintiff, matter came in Second Appeal No.

612/1985 which was decided on 22.03.1993 and by allowing the same,

matter was remanded to first appellate Court with the direction to decide

the civil appeal on merits after appreciating entire evidence and by

recording specific findings regarding possession.

11]. Thereafter first appellate Court again decided the civil appeal vide

judgment and decree dated 13.07.1994 and by holding the defendants to

be in possession of the suit property, dismissed the suit in its entirety by

setting aside the judgment and decree of trial Court dated 30.04.1984.

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12]. Against the judgment and decree dtd. 13.07.1994 passed by first

appellate Court, instant second appeal was preferred and was admitted for

final hearing on 18.01.1995 on the following substantial questions of law.

"i. Whether the finding recorded by the lower appellate Court holding the adverse possession of plaintiff by perfecting the title is correct ?

ii. Whether the lower appellate Court has wrongly decided that the suit was barred by limitation ?"

13]. Learned counsel for the appellant/plaintiff submits that the

substantial question of law no.1 has been formulated wrongly and in

place of the word 'plaintiff' mentioned therein, it needs to be corrected

and read as 'defendant' and submits that first appellate Court has

wrongly held that since after execution of sale deed dated 19.06.1943,

plaintiff's grandfather, plaintiff's father and thereafter the plaintiff did not

remain in possession. He submits that the defendant cannot take plea of

adverse possession because he is claiming himself to be owner on the

basis of sale deed (Ex.D/2). He further submits that there is no requisite

pleadings in the plaint regarding acquisition of title by adverse

possession, therefore, first appellate Court has erred in setting aside the

judgment and decree of trial Court and in holding the defendant 1 to have

acquired title by adverse possession. In support of his submissions he

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placed reliance on decision of Hon'ble Supreme Court in the case of

Govt. of Kerala vs. Joseph and others, 2023 INSC 693 and in the case of

Shri Uttam Chand (D) Through Lrs. vs. Nathu Ram (D) Through LRs. &

ors. in Civil Apeal no. 190 of 2020 decided on 15.01.2020. He also

submits that first appellate Court has just contrary to the provisions

contained in Article 65 of the Limitation Act, 1963, committed illegality

in holding the suit to be barred by limitation. With these submissions he

prays for allowing the second appeal and to decree the civil suit by

restoring the judgment and decree of trial Court.

14]. Despite service of summons, none has appeared for the

respondents/defendants.

15]. Heard learned counsel for the appellant/plaintiff and perused the

record.

16]. As has been mentioned above, in pursuance of order/judgment of

remand dated 14.12.1984, matter was remanded for the purpose of

inquiry in relation to possession of parties to the suit from the year 1943

to 1955 and ultimately vide order dated 22.03.1993 passed in Second

Appeal No. 612/1985 again the matter was remanded to first appellate

Court to record aforesaid finding of possession after appreciating the

entire evidence available on record.

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17]. In pursuance of order dtd. 22.03.1993 passed in S.A. 612/1985 first

appellate Court vide impugned judgment and decree dated 13.07.1994

appreciated evidence of the parties in detail and on the basis of

admissions of witnesses of the plaintiff namely, Shiv Prasad and Nand

Kumar (PW-10 & PW-11) held that after execution of sale deed dated

19.06.1943 (Ex.D/2), neither grandfather nor father of plaintiff remained

in possession, but the defendant 1 has been in possession.

18]. Apparently, no substantial question of law has been framed in the

instant second appeal in respect of any perversity in the finding of

possession recorded by first appellate Court, and the counsel for the

appellant has also failed to point out any perversity in the finding of

possession, therefore, the finding of possession recorded by first appellate

Court in favour of defendant 1 becomes final. Even otherwise finding on

the question of possession being a pure finding of fact is not assailable in

the second appeal, as has been held by Supreme Court in the case of

Mohanlal vs. Nihal Singh (2001) 8 SCC 584.

19]. In the present case, sale deed (Ex.D/2) was executed by

Vanshgopal in favour of defendant 1 on 19.06.1943, in which Survey No.

222, 235, 236, 220, 221, 223, 226, 227 & 240 are mentioned and at the

same time, the deed is shown to be registered in respect of Khasra Nos.

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235, 236 & 222. However, possession is said to have been delivered on

all the khasra numbers. Taking into consideration this aspect of the

matter, trial Court decreed the suit in respect of land Khasra Nos. 220,

221, 223, 225, 226, 227 & 240 holding the sale of the land only in respect

of land Khasra Nos. 235, 236 & 222. It was also held that the plaintiff is

in possession of the land except the land Survey Nos.235, 236 & 222. The

question of possession was agitated by the defendants since beginning

claiming themselves to be in possession of the land of all the survey

numbers, therefore, the matter was sent for inquiry on the question of

possession of the parties during the years in between 1943 to 1955 and

ultimately first appellate Court has found the defendant to be in

possession of entire disputed land.

20]. In view of the aforesaid factual finding of defendant's possession

from the year 1943, the provisions of old Limitation Act, 1908 would

apply. Relevant provision of old Act in respect of filing of the suit for

possession of immovable property is quoted as under:-

"142.--For possession of immoveable property when the plaintiff while in

possession of the property, has been dispossessed or has discontinued the

possession."

Under Article 142 of the old Act, limitation was 'Twelve years' from the date

of the dispossession or discontinuance.

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21]. In respect of the aforesaid controversy, relevant provision has been

made in the Limitation Act, 1963 vide section 31 of the Act, which is

quoted as under :

"31. Provisions as to barred or pending suits, etc.--Nothing in this Act

shall,--

(a) enable any suit, appeal or application to be instituted, preferred or made,

for which the period of limitation prescribed by the Indian Limitation Act,

1908 (9 of 1908), expired before the commencement of this Act; or

(b) affect any suit, appeal or application instituted, preferred or made before,

and pending at, such commencement."

22]. Upon arising same controversy, Hon'ble Supreme Court in the case of T. KALIAMURTHI & ANR. VERSUS FIVE GORI THAIKAL WAKF & ORS., (2008) 9 SCC 306 considered the scope of section 31 of the Limitation Act and held as under :

"36. Section 31 of the Limitation Act, 1963 provides that nothing in the Limitation Act, 1963 shall enable any suit, appeal or application to be instituted, provided or made, for which the period of limitation prescribed by the Limitation Act, 1908 expired before the commencement of this Act. Section 31 of the 1963 Act assumes great importance which was completely overlooked by the first appellate court. Admittedly, in the present case, the suits were filed long after the death of the Muthavalli and the suit properties were transferred as far back as in 1927, therefore, the suits were barred under the Limitation Act, 1908. In other words, in the present case, the period of limitation prescribed under the 1908 Act had already expired before the commencement of the 1963 Act and, therefore, in view of the clear mandate of Section 31 of the Limitation Act, 1963, suits could not have been instituted by taking the plea that the same was within the limitation under the 1963 Act."

23]. If pure finding of fact of defendants' possession is taken into

consideration in the light of said provision contained in Article 142 of the

old Limitation Act, the limitation of 12 years would start running from

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19.06.1943 itself, when the defendants came in possession and have also

been found in possession continuously till the date of filing of the civil

suit on 13.09.1971. As such, even if for the sake of argument, the plea of

adverse possession is ignored, then also there is no room available for the

plaintiff to get decree of possession in his favour. In view of the aforesaid

factual scenario, both the decisions (supra) cited by learned counsel for

the appellant, are not applicable to the instant case.

24]. Pleadings in the plaint are to the effect that after execution of sale

deed on 19.06.1943, Vanshgopal died in the year 1946, thereafter his son

namely Ram Dulare died in the year 1950 and then his wife left the

Village Boda in the year 1957 in the minority of plaintiff. As to why any

action was not taken firstly by Vanshgopal himself, then by Ram Dulare

and thereafter by mother of the plaintiff, nothing is on record. As such in

my considered opinion, first appellate Court has not committed any

illegality in holding the suit to be barred by limitation. Accordingly, the

substantial question of law No.2 is decided against the appellant and in

favour of the respondents.

25]. In the present case, except filing of the suit on 13.09.1971, nothing

appears to have been done by the plaintiff, his mother, father and

grandfather within 12 years from 19.06.1943. Further, the act of

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cultivation is not a secret act. Sufficient evidence is available on record to

hold that the defendants remained in possession of the land asserting

themselves to be owner/bhoomiswami thereof, which is sufficient to

acquire title by a person on the basis of adverse possession. Resultantly,

the finding of acquiring title by defendants on the basis adverse

possession does not appear to be illegal or perverse.

26]. Although, no substantial question of law has been framed in

respect of acquisition of title on the basis of adverse possession by the

defendant, but in view of the aforesaid discussion, the substantial

question of law No.1 formulated by this Court is also decided against the

appellant and in favour of the respondents.

27]. Resultantly, this second appeal fails and is hereby dismissed.

28]. However, no order as to cost.

29]. Pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE SN