Thakur
Kishan Singh Vs. Arvind Kumar [1994] INSC 456 (7 September 1994)
Sahai,
R.M. (J) Sahai, R.M. (J) Singh N.P. (J)
CITATION:
1995 AIR 73 1994 SCC (6) 591 1994 SCALE (4)176
ACT:
HEAD NOTE:
ORDER
1. In
this defendant's appeal directed against the judgment and order of the High
Court of Madhya Pradesh, the question that arises for consideration is if the
High Court committed any error of law in upholding the order of the appellate
court decreeing the suit of the plaintiff-respondent on finding that the
defendant-appellant had not acquired any rights by adverse possession.
2.The
suit was filed for possession in respect of an area of approximately 0.56 acres
of Khasra No. 526 located in Khurai Tehsil, District Sagar. It was claimed that
the land in dispute was leased to the plaintiff by the lambardar and the deed
executed on 5-12-1949 which was registered on 3-4-1950.
It was
alleged that the appellant was an agent of the respondent who was permitted to
set up a brick-kiln in the area in dispute in the year 1960-61. The appellant,
however, who had a house in the adjoining Khasra No. 527 trespassed initially
on 0.14 acre and made further encroachments on 0.42 acre. The claim was
contested by the appellant and it 593 was claimed that the deed having been registered
on 3-4- 1950, it was void under Section 6 of the Madhya Pradesh Abolition of
Proprietary Rights Act, 1950 (in brief 'the Act') as the land had vested in the
State on 31-3-1950. In the alternative, the plea of adverse possession was
raised.
The trial
court did not find any merit in the claim of the appellant and held that even
though the lease deed was registered after 30-3-1950 but it having been
executed on 5- 12-1949, it would be deemed to have been registered on 5-12-
1949 and, therefore, the provisions of Section 6 of the Act did not stand in
the way of the respondent acquiring the title in land in dispute. But the suit
was dismissed on the finding that the appellant had acquired rights by adverse
possession. In appeal the order was set aside and the suit was decreed. The
appellate court affirmed the finding on title. And set aside the finding on
adverse possession.
The
High Court did not interfere in second appeal.
3. The
findings recorded by the High Court and the trial court have been assailed by Shri
Sen, the learned Senior Counsel appearing for the appellant, and it is claimed
that the lease deed having been registered after the material date, it could
not confer any title on the respondent as the right title-ininterest of the
respondent's predecessor already stood vested in the State prior to
registration of the lease deed. The argument does not appear to be sound.
Section
47 of the Registration Act provides that a registered document shall operate
from the time it would have commenced to operate if no registration thereof had
been required or made and not from the time of its registration. It is well
established that a document so long it is not registered is not valid yet once
it is registered it takes effect from the date of its execution.
(See
Ram Saran Lall v. Mst Domini Kuer1 and Nanda Ballabh Gururani v. Smt Maqbool
Begum2.) Since, admittedly, the lease deed was executed on 5-12-1949, the plaintiff after registration of it on 3-4-1950 became owner by operation of law on the date when
the deed was executed. Therefore, the land did not vest in the State. And the
courts below did not commit any error in negativing the claim of appellant.
4.It
is then urged that the lease was not signed by the respondent and it being a
unilateral act of the lambardar, was contrary to the provisions of the Transfer
of Property Act. Since under Section 117 of the Transfer of Property Act the
agricultural leases are excluded from operation of the Act, the provisions of
Section 107 did not apply to it.
Nor is
there any merit in the submission that even if Transfer of Property Act did not
apply the principles contained therein would be applicable to agricultural
lease.
In
view of a specific provision in the Transfer of Property Act excluding
agricultural leases from the operation of the Act, and the Tenancy Act of the
State having provided for execution of the lease which does not contain any
provision like Section 107 of the Transfer of Property Act, the principles of
Section 107 cannot be extended to it.
I AIR
1961 SC 1747: (1962) 2 SCR 474 2 (1980) 3 SCC 346: 1980 UJ (SC) 597 594 5.As
regards adverse possession, it was not disputed even by the trial court that
the appellant entered into possession over the land in dispute under a licence
from the respondent for purposes of brick-kiln. The possession thus initially
being permissive, the burden was heavy on the appellant to establish that it
became adverse. A possession of a co-owner or of a licensee or of an agent or a
permissive possession to become adverse must be established by cogent and
convincing evidence to show hostile animus and possession adverse to the
knowledge of real owner. Mere possession for howsoever length of time does not
result in converting the permissive possession into adverse possession. Apart
from it, the appellate court has gone into detail and after considering the
evidence on record found it as a fact that the possession of the appellant was
not adverse. The learned counsel, despite strenuous argument, could not
demolish the finding of adverse possession. Attempt was made to rely on the
evidence led on behalf of the parties and the evidence of the Commissioner who
prepared the map. We are afraid that such an exercise is not permissible even
in second appeal, what to say of the jurisdiction exercised by this Court under
Article 136 of the Constitution. Further, we do not find that the appellant has
suffered any injustice which requires to be remedied by this Court.
6. In
the result, the appeal fails and is dismissed. But there shall be no order as
to costs.
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