Balkrishan
Vs. Satyaprakash & Ors [2001] Insc 32 (22 January 2001)
Ruma
Pal, S.S.M.Quadei Syed Shah Mohammed Quadri, J.
L.J
This
appeal, by special leave, is from the judgment and decree of the High Court of
Madhya Pradesh (Bench at Gwalior) in Civil Second Appeal No.161 of
1991 dated September 1,
1994. The plaintiff in
the suit (Case No.51-A/86 in the court of Second Civil Judge Class I, Guna, Madhya
Pradesh) is the appellant. He laid the suit for declaration of his title on the
ground that by adverse possession he perfected his title to the agriculture
land bearing Survey No.1216, admeasuring 1.902 hectares (Khasara No.1216 area 9
bighas 2 visvas) situated in village Guna, Tehsil and District Guna, Madhya
Pradesh (hereinafter referred to as, the suit land) and for permanent
injunction against respondent Nos.1 to 4 on December 6, 1986. The following
facts need to be noticed for understanding the controversy between the parties.
The appellant claimed that he purchased the suit land for consideration of
Rs.451/- from Sukhlal and Phulchand who were said to be the owners thereof on August 25, 1960. The suit land was under attachment
by orders of the Tehsildar, Guna and in the auction that followed the attachment,
one Mohan Singh purchased it in the name of his minor son Rajendra Singh in
1963. Rajendra Singh through guardian - his father Mohan Singh - filed an
application under Section 250 of Madhya Pradesh land Revenue Code, 1959, before
the Tehsilar, Guna, against the appellant claiming restoration of possession of
the suit land. On the alleged ground of interference in his possession, the
appellant instituted a suit (for declaration praying for declaration and
injunction) (Civil Suit No.82A/64) in the court of Civil Judge, Class II,
against Rajendra Singh & Mohan Singh and his vendors (Sukhlal & Phoolchand)
in1964. On December 23,
1966 the suit was
dismissed holding that the sale in his favour was not valid. Notwithstanding
the dismissal of that suit, he remained in possession of the suit land. On June 20, 1971, the Tehsildar ordered the
appellant to put the said Rajendra Singh in possession of the suit land.
Against that order the appellant filed an appeal before the Sub- Divisional
Officer who dismissed the appeal on September 4, 1973. While so Rajendra Singh sold the
suit land to respondent Nos.2 and 4; respondent No.1 is husband of respondent
No.2 and respondent No.3 is the husband of respondent No.4. The appellant,
however, continued to remain in the possession of the suit land. The said
respondents resisted the suit denying the possession of the appellant and
pleading that Mohan Singh and Rajendra Singh were in continuous possession of
the suit land and that the appellant acquired no title to the suit land. They
stated that the appellant failed in the Civil Court, Revenue
Court, and before the
Executive Magistrate and therefore that suit was also liable to be dismissed.
After considering the evidence placed before it the trial court found that the
appellant had been in continuous possession of the suit land and perfected his
title by adverse possession. Accordingly, the suit of the plaintiff was decreed
by the trial court.
Against
the judgment and decree of the trial court, respondent Nos.1 to 4 filed appeal
(Civil Appeal No.97-A/1990) before the IInd Additional District Judge, Guna. On
30 July, 1991, the First Appellate Court
dismissed the appeal. The said respondents filed Civil Second Appeal No.161 of
1991 in the High Court of Madhya Pradesh (Bench at Gwaliar), which was allowed,
setting aside the judgment and decree of the First Appellate Court, by the
impugned judgment and decree. Mr.Niraj Sharma, the learned counsel appearing
for the appellant contended that inasmuch as the trial court as well as the
First Appellate Court found that the appellant had perfected his title by
adverse possession, the High Court erred in reversing the well- considered
judgments of the lower courts on the ground that possession of the appellant
was not sufficient in the eye of law to confer the title by adverse possession.
Mr.M.P.Verma, the learned senior advocate appearing for the respondents,
contended that the earlier suit of the appellant was dismissed and that there
was an order of the Tehsildar directing him to handover the possession of the
suit land to the respondents, therefore, the appellant could not claim to be in
continuous uninterrupted possessions as such the High Court rightly held that
the appellant did not perfect his title by adverse possession and dismissed the
suit of the appellant. The short question that arises for consideration in this
appeal is : whether the High Court erred in holding that the appellant had not
perfected his title by adverse possession on the ground that there was an order
of Tehsildar against him to deliver possession of the suit land to the auction
purchasers? The law with regard to perfecting title by adverse possession is
well settled. A person claiming title by adverse possession has to prove three nec
- nec vi, nec clam and nec precario. In other words, he must show that his
possession is adequate in Mst. Bibi Sakina [AIR 1964 SC 1254] speaking for this
Court Hidayatullah, J. (as he then was) observed thus: Adverse possession must
be adequate in continuity, in publicity and extent and a plea is required at
the least to show when possession becomes adverse so that the starting point of
limitation against the party affected can be found.
In the
instant case, the trial court on appreciating the evidence produced by the
parties recorded the following among other findings:
(i)
Accordingly it is decided that since 23.12.1966 negativing the title of actual Bhumiswami,
the plaintiff has been in continuous, uninterrupted and open possession of the
suit land;
(ii)
As a result the plaintiff had acquired the rights of Bhumiswami on the basis of
the adverse possession of the suit land.
The
First Appellate Court on reappraisal of the evidence on record found that the
appellant was in continuous possession from the date of the purchase i.e.,
August 25, 1960, but as the predecessor-in-interest of the respondents, Rajendra
Singh, initiated the proceedings under Section 250 of the M.P. Land Revenue
Code, 1959 before the Tehsildar, Gunna, against the appellant for recovery of
possession so the period from August 25, 1960 till initiation of proceedings
and from 1.12.1964 to 4.9.73 during which the proceedings remained pending,
cannot be counted for perfecting the title of the plaintiff so his adverse
possession would commence from 4.9.1973 and and the period of 12 years was
completed on 4.9.85 before the purchase of the suit land by the respondents on
11.12.85.
The
present suit was filed on December 6, 1986,
therefore, the appellant perfected his title by adverse possession.
The
High Court while accepting those findings of the courts below, however, held :
In spite of the fact that the plaintiff continued in possession in spite of the
order against him in proceedings under Section 250 M.P.L.R. Code, his
possession cannot be said to be sufficient in the eye of law to confer a title
upon him by adverse possession, as claimed.
In our
view this conclusion of the High Court is erroneous. The fact remained that in
spite of order of the Tehsildar against the appellant which was not acted upon,
nor executed, the appellant continued in possession of the suit land and,
therefore, the continuity of his possession of the suit land was neither
interrupted nor lost. Mere passing of an order of ejectment against a person
claiming to be in adverse possession neither causes his dispossession nor
discontinuation of his possession which alone breaks the continuity of
possession. The fact that under Section 250(2) of the M.P.L.R. Code read with
Section 38 thereof the Tehsildar was bound to restore possession of the suit
land would, in our view, make no difference and it is difficult to accept the
contention that failure of the Tehsildar in handing over possession would have
the effect of causing discontinuation of possession of the suit land by the
appellant so as to prevent such possession from ripening into adverse
possession after statutory period. In 28 (2)] the Madras High Court took the
view that an adjudication that the true owner had a good title to possession is
entirely consistent with the fact that actual possession is with party who
ousted the true owner and has been holding possession as against the true owner
on his own behalf. It is difficult to understand as to how a decree which negatived
the first defendants right could possibly be regarded in the nature of an interruption
of the Wajed Hoossein [AIR 1923 Madras 88 (2)] the High Court held : Whatever
the decree might have been, the defendants possession could not be considered
as having ceased in consequences of that decree, unless he were actually
dispossessed. The fact that there is a decree against him does not prevent the
statute of limitation from running.
In our
view, the Madras High Court correctly laid down the law in the aforementioned
cases. It will be apt to note here the decision of Privy Council in A.S.S. Subbaiya
which was approved by this Court in Soni Lalji Jetha others [AIR 1967 SC 978].
In that case, in 1913 a suit was brought by the appellant against the
respondents for possession of immovable property in question. In 1890 the appellants
grandfather created a trust of his properties including the property in
question. That property was purchased by the respondents in execution of a
decree against the appellants father in 1898. The purchaser and other
respondents claiming under him had been in possession since the date of
purchase. In a subsequent suit, filed in 1904 in which the respondents were
parties, a decree was passed declaring that the trust created by the appellants
grandfather was valid. However, no steps were taken pursuant to the decree to dispossess
the respondents prior to filing of the suit by the appellant. The Privy Council
negatived the contention that the decree in the suit holding the property as
trust property was res judicata as against the respondents so as to preclude
them from asserting title in the property. The Privy Council observed as follows
:
At the
moment when it was passed the possession of the purchaser was adverse and the
declaration that the property had been subject to a trust disposition, and
therefore ought not to have been seized, did not disturb or affect the quality
of his possession; it merely emphasised the fact that it was adverse. No
further step was taken in consequence of that declaration until the present
proceedings were instituted, when it was too late.
From
the above discussion it follows that the judgment and decree of the High Court
under challenge cannot be sustained. They are accordingly set aside and the
judgment and decree of the First Appellate Court confirming the judgment and
decree of the trial court is restored. The appeal is accordingly allowed but in
the circumstances of the case without costs.
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