Madhya Pradesh High Court
Parshavnath Bhagwan Nabalig Jain ... vs Pukhraj Pagaria on 7 May, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:21310
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 7th OF MAY, 2025
SECOND APPEAL No. 2153 of 2005
PARSHAVNATH BHAGWAN NABALIG JAIN MANDIR AND OTHERS
Versus
PUKHRAJ PAGARIA AND OTHERS
Appearance:
Shri Abhijeet Awasthy - Advocate for the appellants.
None for the respondents.
JUDGMENT
This appeal is of the year 2005 and is admitted by this Court vide order
dated 8.5.2006. The appeal was directed to be listed for hearing and today it is
listed for hearing. However, nobody appeared on behalf of the respondent.
2. This appeal has been filed against the judgment and decree dated
28.6.2005 passed by the Court of II Addl. District Judge, Betul in C.A.No.17-
A/2005 affirming the judgment and decree dated 9.5.2003 passed by the trial
court in Civil Suit No.5-A/1995 and thereby dismissing the suit of the plaintiff
appellant.
3. The brief facts of the case are that the plaintiff filed a suit for permanent
injunction and possession over the disputed land. Although the suit was
dismissed by the trial court and the appeal preferred by the appellant was also
dismissing affirming the finding given by the trial court. As such this appeal is
against the concurrent findings of both the courts below.
NEUTRAL CITATION NO. 2025:MPHC-JBP:21310
4. This Court on 8.5.2006 has admitted the appeal on the following
substantial questions of law :-
i) Whether the findings arrived at by the two courts below holding that
the suit is bad in law for non-joinder of necessary parties is perverse in
view of para 4 of the cross-examination of defendant Dhanraj Pagariya
(DW1) wherein he has specifically admitted that only plaintiffs are the
trustees ?
ii) Whether the two courts below erred in substantial error of law in
holding that the defendants have perfected their right, title and interest
in the suit property by way of adverse possession by ignoring
admission made by defendant Dhanraj Pagariya (DW1) in para 8 of his
cross-examination wherein he has specifically admitted that for the first
time in the year 1994 he has declared his hostile title ?
iii) Whether in the facts and circumstances of the case the possession of
the defendants can be said to be permissible ?
5. As has been pointed out that the suit got dismissed on the ground that the
same suffers from non-joinder of the necessary parties as other trustees have not
been made party and as such it got dismissed. It has also been dismissed on the
ground that the defendants successfully proved that they perfected their title by
way of adverse possession. However, as per the substantial question of law
framed by this court with regard to non-joinder of party it is required to be seen
whether the said finding of the courts below is perverse in pursuance to the
admission of DW1 namely Dhanraj Pagariya in his statement recorded before
the trial court. The question with regard to adverse possession and the findings
given by the Courts below thereof is also said to be perverse because the courts
below failed to see the admission made by the defendant no.1 DW1 in para 8 of
NEUTRAL CITATION NO. 2025:MPHC-JBP:21310
his statement and the courts below without considering the fact that in view of
the admission of defendant himself, the plea of hostile possession that could not
be proved by the defendants.
6. Considering the submissions made by counsel for the appellants and on
the basis of substantial questions of law on which this appeal has been admitted,
I have gone through the statement of DW1 specially para 4 in which he has
stated as under :-
4.
At the same time, para 8 of his statement is also required to be seen which is as
under :-
8.
NEUTRAL CITATION NO. 2025:MPHC-JBP:21310
7. Considering the aforesaid, it is clear that the defendant himself has
admitted that except the trustees, who were plaintiff before this Court, there
were no other trustees in the plaintiff trust and as such giving finding and
dismissing the suit on the ground that there were other trustees not made party
and, therefore, suit suffers from non-joinder of necessary party is absolutely
perverse and as such the said finding is set aside. Likewise, the findings with
regard to adverse possession and considering the statement made in para 8, it is
clear that the defendant was never in hostile possession of the property and it is
not a case in which the actual owner of the property has never raised about the
unauthorized occupation of the defendant. As per Ex.P/5, i.e. demarcation
report which was preapred on 23.12.1998 it is clear that in the demarcation
report it is found that the disputed land, i.e. part of Plot No.35 is in occupation of
the defendant and as per the statement made by DW1 himself in paragraph 8 he
has admitted that in 1994 objections were raised by the plaintiff with regard to
his unauthorized possession and, therefore, as per section 27 of the Limitation
Act, it cannot be said that plaintiff has extinguished his right of title over the suit
property. Section 27 of the Limitation Act reads as under :-
27. Extinguishment of right to property.--
At the determination of the period hereby limited to any person for
instituting a suit for possession of any property, his right to such
property shall be extinguished.
8. Therefore, if the suit has been filed on 30.6.1995 is well within the
limitation of section 27 of the Limitation Act and, therefore, finding given by the
NEUTRAL CITATION NO. 2025:MPHC-JBP:21310
courts below perfecting title of defendant on the basis of adverse possession is
also not sustainable.
9. The courts below have not considered the impact of the admission made
by the defendant himself and also not taken note of section 27 of the Limitation
Act. Under such circumstances, in my opinion, the findings given by both the
courts below are perverse and the judgment and the decree dated 28.6.2005
passed by the Court of II Addl. District Judge, Betul in C.A.No.17-A/2005 and
the judgment and decree dated 9.5.2003 passed by the trial court in Civil Suit
No.5-A/1995 are not sustainable and are hereby set aside.
10. Accordingly, the suit filed by the plaintiff appellants is accordingly
allowed and decreed.
11. Ex consequentia, decree be drawn accordingly.
12. No order as to cost.
(SANJAY DWIVEDI)
JUDGE
HS
HEMANT SARAF
2025.05.14 17:01:05
+05'30'
