& Anr Vs. Chandra Bhaga & Ors  INSC 1189 (23 September 1996)
O R D
appeal by special leave arises from the judgment and order dated July 3, 1995 passed by the High Court of Madhya
Pradesh Bench at Gwalior in S.A. No. 182/89.
admitted facts are that Mansaram had two sons by name, Babulal and Parasram.
The appellants are the descendants through Babulal and the respondents are
descendants through Parasram. In an earlier suit No. 384- A/64, the respondents
pleaded in their plaint that Mansaram, Babulal and Parasram were members of the
joint family and, therefore, each of them was entitled to 1/3rd share in the
suit property. They sought for partition and a decree for partition by meets
and bounds to the extent of their 1/3rd share in the said house.
held that Mansaram was the exclusive owner of the property and that it was not
a joint family property and that the respondent have no right to partition of
the said property. The decree has become final. Mansaram, during his life time,
had executed a registered will on March 28, 1964 bequeathing the properties to the
appellants and Mansaram died on December 12, 1968. The appellants filed the suit on November 14, 1977 for declaration of title and for
possession thereof. The Civil
Court in Suit No.
942-A of 1984, VIIth Civil Judge, Class II, Gwalior by order dated May
10, 1985 decreed the
suit. On appeal, the 4th Additional Judge, Gwalior upheld the same by decree and judgment dated August 21, 1989. The High Court in the second
appeal while upholding that the Mansaram was the owner and had validly
bequeathed it under the Will in favour of the appellants set aside the decree
on the ground that the respondents had perfected the title by adverse
this appeal by special leave.
seen that the respondents have pleaded in their written statement in para 9 as under
plaintiffs are not the exclusive owners of the suit house.
northern portion of House Municipal No.2/7 situated at Nimbaji Ka Bag, Jiwaji Lashkar,
was constructed by Parasram and Mansaram. Parasram had died 25 years ago. The
defendants are the heirs of Parasram. The southern portion was constructed by
the defendants and Mansaram together.
this way, the defendants are residing in the suit house in the capacity of
owners which fact is within the knowledge of the plaintiffs and their ancestors
from the very beginning. House Municipal No. 2/7 is of the joint Hindu Family
of the plaintiffs and the defendants. For this reason, the plaintiffs have no
right to file suit and recover possession and the defendants being in actual
possession of the suit land for over 12 years, the suit is barred by limitation
and deserves to be dismissed.
doubt there is an issue raised on the plea of adverse possession and findings
recorded by the courts below was that the respondents had not perfected their
title by adverse possession. The High Court has reversed that finding on the
ground that the respondents remained in possession for more than 12 years and
thereby they perfected their title by adverse possession. The question is:
whether the view of the High Court is correct in law ? A reading of the
pleading would clearly indicate that they set up their own title to the
property and they have remained in possession for more than 12 years and,
therefore, they sought for the suit to be dismissed on that ground. In view of
the fact that Mansaram was found to be the owner in the earlier suit and he
died on December 12,
1968 until then the
question of adverse possession as against Mansaram was not pleaded. In this
case, except repeating the title already set up but which was negatived in the
earlier suit, namely, that they had constructed the house jointly with Mansaram,
there is no specific plea of disclaiming the title of the respondents from a
particular date, the hostile assertion thereof and then of setting up adverse
possession from a particular date to the knowledge of the respondents and of
their acquiescence. Under these circumstances, unless the title is disclaimed
and adverse possession with hostile title to that of the Mansaram and
subsequently as against the appellant is pleaded and proved, the plea of
adverse possession cannot be held proved. In this case, such a plea was not
averred nor evidence has been adduced. The doctrine of adverse possession would
arise only when the party has set up his own adverse title disclaiming the
title of the plaintiff and established that he remained exclusively in possession
to the knowledge of the appellant's title hostile to their title and that the
appellant had acquiesced to the same. Since there is no plea that he had
claimed any hostile title against Mansaram, the owner of the property, the
earlier decree operates as res judicata. The present suit was filed within 12
years from date of the demise of Mansaram; hence, it was obvious that no
adverse possession has been perfected against the appellant. Moreover, as
against Mansaram, the predecessor in title of the appellant, the earlier decree
operated as constructive res judicata. The present suit was filed within 12
years from the date of the demise of Mansaram; hence, it was obvious that no
adverse possession had been perfected against the appellant. Moreover, as
against Mansaram, the predecessor in the title of the appellant, the earlier
decree operates as constructive res judicata of the principle of might and
ought. The High Court, obviously, was incorrect in its finding that the
respondents had perfected their title by adverse possession.
appeal is accordingly allowed. The judgment and decree of the High Court stands
set aside and that of the trial Court and the appellate Court stand restored.