Babulal vs Bhavsingh
2025 Latest Caselaw 7883 MP

Madhya Pradesh High Court

Babulal vs Bhavsingh on 16 April, 2025

Author: Pranay Verma

Bench: Pranay Verma

          NEUTRAL CITATION NO. 2025:MPHC-IND:10222




                                                             1                                SA-2247-2024
                              IN        THE    HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                            BEFORE
                                              HON'BLE SHRI JUSTICE PRANAY VERMA
                                                   ON THE 16th OF APRIL, 2025
                                                 SECOND APPEAL No. 2247 of 2024
                                                    BABULAL AND OTHERS
                                                           Versus
                                                   BHAVSINGH AND OTHERS
                           Appearance:
                                   Shri Shahab Hussain and Shri Shri Ajay Gupta - Advocate for the

                           appellants.
                                   Shri Ankit Kesharwani - Advocate for respondents.

                                                            JUDGMENT

Learned counsel for the appellants is heard on the question of admission.

2. This appeal under Section 100 of the CPC has been preferred by defendants 1 to 3 being aggrieved by the judgment and decree passed by the Courts below whereby plaintiff's claim for declaration of title to the suit land and possession has been decreed and their counter claim for declaration of

title and damages has been dismissed.

3. As per the plaintiff, the suit land bearing survey No.268 area 0.310 hectare is of ownership of his father Dariyav Singh. Upon his death in 1991, he and his brother Bhagirath were recorded over the same. A partition was effected between them in which the suit land fell to the share of plaintiff. The defendants have illegally got themselves recorded over the suit

NEUTRAL CITATION NO. 2025:MPHC-IND:10222

2 SA-2247-2024 land in the revenue records and have taken compensation for 0.200 hectare for acquisition for a railway line. On 13.03.2018 defendant No.2 sold survey No.276 area 0.210 hectare in favour of Lal Singh but did not hand over possession of survey No.268 to plaintiff as had been agreed between them. In demarcation proceedings carried out by him illegal possession of defendants over the suit land was found who have not delivered the same to him despite institution of proceedings under Section 250 of M.P. Land Revenue Code, 1959 by him. On such contentions claim for declaration of title and possession was instituted by the plaintiff.

4. The defence of defendants was primarily that they have acquired title to the suit land by virtue of adverse possession. Compensation for compulsory acquisition with respect to 0.200 hectare out of the same was

also received by Bherulal, their father. Survey No.276 and 277 are in possession of plaintiff since 14.12.2022 and in lieu of the same they are in possession of the suit land.

5. The Courts below have decreed the plaintiff's claim and have dismissed the counter claim of defendants holding that from the revenue records title of plaintiff is duly established. The same is also evident from the plea as taken by the defendants who have failed to prove acquisition of title by virtue of adverse possession over the the suit land.

6. Learned counsel for the defendants has submitted that the judgment and decree passed by the Courts below are wholly illegal and contrary to law. The defendants had categorically proved that they have acquired title to the suit land by virtue of adverse possession having been in

NEUTRAL CITATION NO. 2025:MPHC-IND:10222

3 SA-2247-2024 possession since the year 1991. Plaintiff is in possession of survey No. 276 and 277 and in lieu thereof they are in possession of survey No.268. The plaintiff does not have any title to the suit land. Before the Lower Appellate Court an application under Order 41 Rule 27 of the CPC was preferred by the defendants for taking additional documents or record which has been illegally rejected. In this appeal also applications bearing I.A. No.10154 of 2024 and 10997 of 2024 have been filed under Order 41 Rule 27 of the CPC for taking additional documents on record, an application bearing I.A. No.10153 of 2024 under Order 26 Rule 9 of the CPC for demarcation of the disputed land and an application bearing I.A. No.10155 of 2024 under Order 6 Rule 17 of the CPC for amendment of the written statement which deserve to be allowed and the matter deserves to remanded back to the Trial Court.

7. I have considered the submissions of the learned counsel for the defendants and have perused the record.

8. Before the Courts below the plaintiff had produced cogent and reliable documents for establishing his title to the suit land bearing survey No.268. Those documents have been relied upon by the Courts below and his title has been correctly upheld. In any case the very pleading of defendants of acquisition of title by virtue of adverse possession leads to irresistible inference of them admitting title of plaintiff. Their only contention was that plaintiff is in possession of survey No.276 and 277 hence they are in possession of survey No.268. From this pleading itself it is evident that they have admitted title of plaintiff over survey No.268. The same is hence duly

proved.

NEUTRAL CITATION NO. 2025:MPHC-IND:10222

4 SA-2247-2024

9. The plea of defendants has been of acquisition of title to the suit land by virtue of adverse possession. However, from the evidence available on record, it is evident that as per the defendants themselves they are in possession of the suit land with the consent of plaintiff. They have contended that survey No.276 and 277 were given to Bheru Singh in lieu of which they were given survey No.268. This plea itself demonstrates that they came in possession of the suit land with permission and consent which hence cannot be regarded to be adverse possession since possession with consent cannot ripen into title by virtue of adverse possession. No subsequent plea of ouster or hostility thereafter has been taken or proved. There is no document to demonstrate that plaintiff is in possession of survey No.276 and 277. Instead defendants have sold survey No.276 in favour of one Lalsingh vide registered sale deed Exhibit P/2. If survey No.276 and 277 had been given to plaintiff then the same could not have been sold by the defendants. The Courts below have hence not committed any error in negativing title of defendants to the suit land by virtue of adverse possession.

10. Before the lower appellate Court an application under Order 41 Rule 27 of the CPC was preferred by the defendants for taking additional documents on record which were to demonstrate that survey No.276 and 277 are recorded in the name of defendant No.2 whose possession is with plaintiff. The documents were as regards exchange of the lands between the parties and the khasra related to the same. However, survey No.267 and 277 are not the suit lands and the suit land is only survey No.268. The only plea raised by the defendants was as regards acquisition of title by virtue of

NEUTRAL CITATION NO. 2025:MPHC-IND:10222

5 SA-2247-2024 adverse possession and not of any exchange effected between the parties. The documents hence had no bearing upon the case in absence of any plea in that regard hence the lower appellate Court has not committed any error in refusing to take the same on record.

11. Though in this appeal also applications under Order 41 Rule 27 of the CPC for taking additional documents on record and application Order 6 Rule 17 for amendment in the written statement have been filed but they are also based upon the fact of an exchange having taken place between the parties. The suit has all along proceeded on the plea of defendants of adverse possession. The exchange as is now being contented by the defendants was never pleaded and no document in that regard was produced. The suit land has only been survey No.268 and the counter claim of defendants was also in respect of only that survey number. Survey No.276 and 277 are not the suit lands. After decision by both the Courts below in favour of plaintiff and against defendants 1 to 3 on the basis of title only in respect of survey No.268, the plea as regards exchange as sought to be raised by defendants cannot be permitted to be raised at this stage and the documents in that regard also cannot be taken on record. In any case at the time of hearing of second appeal on the question of admission, this Court is only required to see whether the judgment and decree passed by the courts below on the basis of the evidence available before them are legal. Their judgments cannot be set at naught by this Court by relying upon pleadings and documents not raised and produced before the Courts below. There is hence no justification for allowing the applications preferred by defendants which are accordingly

NEUTRAL CITATION NO. 2025:MPHC-IND:10222

6 SA-2247-2024 rejected.

12. The learned counsel for the defendants has also submitted that since the main plea which ought to have been taken by the defendants before the Courts below has not been taken by them they ought to be granted liberty to file a fresh suit in respect of those pleadings. Suffice is to say that if the defendants have any legal right or remedy available to them, then it is always open for them to take recourse to the same and no specific liberty is required to be granted to them in that regard.

13. Thus, in view of the aforesaid discussion, I do not find any error having been committed by the Courts below in passing their judgment and decree. No illegality or perversity in the same has been pointed out. No substantial questions of law arise for determination in this appeal which is consequently dismissed in limine.

(PRANAY VERMA) JUDGE

jyoti