Madhya Pradesh High Court

Om Prakash vs Laxman on 5 March, 2025

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                                                       1
                  IN THE HIGH COURT OF MADHYA PRADESH
                               AT JABALPUR
                                                 BEFORE
             HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

                             SECOND APPEAL No. 280 of 2014


                                OM PRAKASH AND ANOTHER

                                                   Versus

                                     LAXMAN AND OTHERS

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Appearance:

     Ms. Sudipta Choubey- Advocate for the appellants.

     Mr. S.K. Jaiswal - Advocate for the respondent No.1.
     Mr. Pramod Thakre - Advocate for the respondent No.3 to 5.
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         RESERVED ON                        :        27.02.2025
         PRONOUNCED ON                      :        05.03.2025

This appeal having been heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following


                                                     ORDER

This second appeal has been filed under Section 100 of Code of Civil

Procedure, 1908, against the judgment and decree dated 17.01.2014 passed by

learned Second Additional District Judge, Betul, in Civil Appeal No. 3A/2012,

arising out of the judgment and decree dated 23.12.2011 passed in Civil Suit

No.47-A/2010.

2. Instant appeal has been admitted for final hearing on the following

substantial questions of law:-

"1) Whether, on the basis of complete gift deed, possession having been delivered and the plaintiff have failed to prefer any claim for cancellation of gift deed, hence plaintiff is left with any right whatsoever?

(2) Whether the plaintiff can take plea of title on the basis of adoption deed and on the other hand, on the basis of adverse possession simultaneously ?"

3. Brief facts of the case are that plaintiff filed a suit for declaration of title

as well as permanent injunction on the ground that Musmmat Rukhmi Bai,

widow of Radhelal Sahu, did not have any child. Therefore, she adopted

plaintiff, son of Nanhu, vide registered adoption deed dated 21.06.1954. Thus,

plaintiff is adopted son of Musammat Rukhmi Bai. Rukhmi Bai had received

suit properties vide registered family partition dated 15.04.1972 and since then,

she was in possession of suit property. Rukhmi Bai, widow of Radhelal, was

owner of suit property during her lifetime. After death of Rukhmi Bai, plaintiff

is in possession of suit property as owner. It has also been averred in the plaint

that on account of adverse possession also, plaintiff has perfected title over the

suit property.

4. Learned trial Court vide judgment dated 23.12.2011 passed in Civil Suit

No. 47A/2010 decreed plaintiff's suit and Appellate Court vide judgment dated

17.01.2014 passed in R.C.A. No. 3-A/2012 dismissed defendant's appeal and

affirmed trial court's findings.

5. Learned counsel for the appellant, after referring to paras No. 2A, 2B, 9,

14, 21 of plaint and relying upon Keshar Bai Vs. Genda Lal and another,

(2022) 10 SCC 217, submits that in the instant case, in plaint, plaintiff has taken

two contradictory pleas with respect to acquisition of ownership i.e. on the one

hand plaintiff is claiming himself owner of suit property on the ground that he is

adopted son of Rukhmi Bai, and on the other hand, plaintiff is also claiming

himself owner of the suit property on the ground of adverse possession. Plaintiff

cannot take such contrary pleas with respect to acquisition of ownership. Hence,

in view of law laid down by Hon'ble Apex Court in Keshar Bai (Supra),

plaintiff's suit is not maintainable and is liable to be dismissed solely on above

ground.

6. Learned counsel for the appellants also submits that they have filed an IA

No. 11209/2015 under Order 41 Rule 27 of CPC for taking additional

documents i.e. Gift deed dated 21.06.1954 on record. It is also urged that

plaintiff has not claimed any relief for cancellation of aforesaid gift deed.

Therefore, plaintiff has no right in the suit property. Hence, on above grounds,

appeal filed by the appellants be allowed and suit filed by the plaintiff be

dismissed.

7. Learned counsel for the respondent, after referring to para 9 of trial

Court's judgment, submits that findings recorded by the trial Court are just and

proper. They are supported by evidence on record. Findings of the trial Court

has been confirmed by Appellate Court. It is a case of concurrent findings of

facts. Further, plaintiff's suit cannot be dismissed solely on the ground of

contrary pleas taken in the plaint. Hence, appeal filed by the appellants be

dismissed.

8. Learned counsel for the respondents No. 3 to 5 submits that findings

recorded by the trial Court as well as First Appellate Court are just and proper

and no interference is required in the same. Hence, appeal filed by the

appellants be dismissed.

9. I have heard learned counsel for the parties and perused the record of the

case.

Analysis and findings:-

10. Instant appeal has been admitted for final hearing on the following

substantial questions of law:-

"1) Whether, on the basis of complete gift deed, possession having been delivered and the plaintiff have failed to prefer any claim for cancellation of gift deed, hence plaintiff is left with any right whatsoever?

(2) Whether the plaintiff can take plea of title on the basis of adoption deed and on the other hand, on the basis of adverse possession simultaneously ?"

Substantial question of law No. 2:-

11. For deciding substantial question of law No. 2, it would be appropriate to

reproduce relevant averments in the plaint which are as follows:-

" ;g fd eq- :[eh csok jk/ksyky lkgw dk dksbZ iq= vkSykn ugha Fkh] rFkk eq- :[eh csok jk/ksyky ds }kjk oknh y{e.k oYn uUgw lkgw dks vo;Ld vk;q esa xksn iq= dh gSfl;r ls iathd`r xksnukek fnukad 21-06-1954 fu"ikfnr

dj xksniq= ds :Ik esa xzkg~; fd;k x;k FkkA oknh xksniq= :[eh csok jk/ksyky lkgw ds tsB uUgw oYn /kukjke ,oa Jherh HkkxjFkh ifRu uUgsa ds }kjkk xksn esa jkth[kq'kh ls fn;k x;k FkkA

- ;g fd :[eh ckbZ us vius ifr ds funsZ'kkuqlkj mudh bPNk iwfrZ ds vk'k; ls vo;Ld oknh ds ekrk firk }kjk LosPN;k oknh iq= dks xksn iq= ds :i esa lkSius dks rRij gksus ij fn- 14-06-54 dks 'kkL=ksa ds vuqlkj oknh ds ekrk firk us :[eh ckbZ dh xksn esa oknh dks fn;k FkkA ftls :[eh ckbZ us xzkg; dj viuk iq= ekU; dj iq= dh gSfl;r iznku djrs gq;s ifjokj] lekt ,oa xzke ds yksxksa ds le{k vuq"Bku dj jksVh ikuh djrs gq;s xksn ysus dh izfdz;k dks lkekftd lekjksg ds :Ik esa mtkxj dh FkhA blh dh iwfrZ esa fn- 21 twu 1954 dks j[eh ckbZ }kjk iathd`r xksnukek rgjhj fd;k x;k ,oa oknh jk/ksyky ,oa j[eh ckbZ dh larku ds :i esa tkuk igpkuk tkus yxk vkSj xzke okfl;ks]a fj'rsnkjksa ,oa ifjfprksa esa j[eh ckbZ ds iq= ds :Ik esa gh oknh dh igpku ,oa ekU;rk gSA ;g fd j[eh csok jk/ksyky dh e`R;q ds yxHkx 30&32 o"kZ gks pqd gS] rFkk rn~i'pkr Hkh oknh gh mDr Hkwfe dks cgSfl;r ekfyd o dkfct gSA foxr 32 o"kksZ lsoknh vkf/kiR; ,oa dk'r oknxzLr Hkwfe ij djrs pyk vkjgk gS] rFkk izfrokfnuh dh tkudkjh esa [kqys :i ls dkfct dk'r gSA ;g fd oknxzLr Hkwfe ij izfrokfnuh dk uke jktLo vfHkys[k esa bUnzkt gksus ds ckotwn izfrokfnuh dHkh Hkh oknxzLr Hkwfe ds vkf/kiR; essa ugha vkbZ vkSj u gh dHkh dk'r dh A oknh dk fujUrj 30&32 o"kksZ ls izfrokfnuh dh tkudkjh esa [kqys :i esa pqukSrhiw.kZ fuokZ/k vkf/kiR; gksus ls :[eh ckbZ ds iq= oknh ds LoRo lEca/kh gd iq"V gks pqds gSA

- ;g fd oknh fuEu vfHk;kpuk djrk gS %& ;g ?kksf"kr fd;k tkos fd oknh xksniq= gksus ls ,oa izfrokfn;ksa ds fo:) vuU; vkf/kiR; 30 o"kksZ ls fujUrj [kqys :i esa ' 'kkafriw.kZ fuckZ/k j[krs gq;s [k- ua- &2@3 jdck 2-023gs- ekStk lksgkxiqj ,oa [k- ua- 113@4 jdck 2-116 gs- i-g-u-a &66 ,oa 68 Hkwfe ij LoRo ifjiDo dj LoRof/kdkjh gSA izfroknh dzekad 3 ,oa 4 }kjk foir ckbZ fodzsrk ls okn fopkj.k vof/k esa fu"ikfnr dj;s x;s fodz; foys[k fnukad 22-08-08 oknh ij ca/kudkjh gksdj fu"izHkkoh gSA oknh ds i{k esa izfroknh ds fo:) bl vk'k; dh LFkk;h fu"ks/kkKk ikfjr dh tkos fd izfroknh Lo;a ;k fdlh vU; ds ek/;e ls oknxzLr laifRr ds oknh ds vkf/kiR; esa fdlh Hkh izdkj ls n[kyvankth u djs] vkSj u gh laifRR dk O;;u djsA ;g fd oknh dks izfrokfnuh ds leLr Okkn O;; iznku djk;k tkosA

;g fd okn vUrxZr vU; lE;d ,oa izklafxe lgk;rk tks U;k;ky; mfpr le>s oknh dks iznku djk;h tkosA"

12. Thus, perusal of aforesaid averments in the plaint clearly reveal that

plaintiff has taken contradictory/mutually destructive pleas with respect to

acquisition of title over the suit property. From aforesaid averments, it is

apparent that on the one hand, plaintiff is claiming himself owner of the suit

property on the ground that he is adopted son of owner of the suit property and

on the other hand, he is also claiming ownership on the ground that he has

perfected title over suit property on the basis of adverse possession, meaning

thereby that owner of the suit property is someone else.

13. Hon'ble Apex Court in Kesar Bai (Supra) has observed and has held as

under:-

"7. Having gone through the impugned judgment and order Kesar Bai Vs. Genda Lal, 2022 SCC Online MP 3372 passed by the High Court as well as the First Appellate Court and even that of the learned Trial Court, it appears that the original plaintiffs prayed for a declaration and claimed the title/ownership on the basis of the sale deed dated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also claimed the title by adverse possession. All the courts below have negated the claim of the original plaintiffs of ownership on the basis of the registered Sale deed dated 31.08.1967 (Ex.P.1.) Therefore, the only claim on behalf of the plaintiffs was the plea of adverse possession. So far as the plea of adverse possession is concerned, the High Court has specifically framed a substantial question of law (reproduced hereinabove) and as such has held the same in favour of the appellant - original defendant No. 1. The High Court has specifically observed and held that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and the plaintiffs cannot be permitted to take both the pleas at the same time. Therefore, even as per

the High Court, the claim of the plaintiffs on the basis of the adverse possession was not tenable."

14. Hence, in view of averments in the plaint as well as principle of law laid

down in Keshar Bai (Supra), plaintiff's suit is liable to be dismissed solely on

aforesaid ground because plaintiff cannot take contradictory/contrary/mutually

destructive pleas with respect to acquisition of ownership. Therefore, learned

First Appellant Court as well as trial court has committed material illegality in

decreeing the suit and dismissing appellants' appeal. Therefore, plaintiff's suit is

dismissed solely on aforesaid ground.

Substantial question of law No.2:-

15. So far as substantial question of law No.1 is concerned, unless and until

appellant's application IA No11209/2015 is allowed and registered gift deed is

taken on record and parties are afforded opportunity to lead evidence with

respect to above document, present substantial question of law cannot be