Kesar Bai v. Genda Lal & Anr.

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Second Appeal No. 8 of 1999, the original defendant has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the respondent No.1 herein – original plaintiff filed a suit seeking declaration of ownership and permanent injunction against the defendant with regard to the suit property. The original plaintiffs claimed KESAR BAI v. GENDA LAL & ANR. the title/ownership on the basis of the registered Sale Deed executed on 31.08.1967 in favour of their father and husband Dariyab Singh. The plaintiffs also claimed the title on the basis of the adver se possession. The learned Trial Court dismissed the suit. 2.2 The original plaintiffs preferred the appeal before the First Appellate Court. The learned First Appellate Court though held that the plaintiffs shall not get any right on the basis of the Sa le Deed dated 31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observing that the plaintiffs are in possession of the suit land. The First Appellate Court also held that therefore, the plaintiffs have perfected their title by way of adverse possession. The First Appellate Court decre ed the suit for title on adverse possession and issued the decree of pe rmanent injunction restraining the defendant No.1 – appellan t herein from interfering with the possession of the plaintiffs. The appellant herein – original defendant No.1 filed the second appeal before the High Court. The High Court framed the following substantial question of law:- “Whether the First Appellate Court has erred in holding that the plaintiff has perfected his title on the disputed land by adv erse possession?” 2.3 Though the High Court answered the aforesaid substantial question of law in favour of the appellant, however, thereafter did not interfere with the judgment and order passed by the First Appellate Court by observing that the First Appellate Court has specificall y given the finding that the plaintiffs are in possession of the suit la nd since after execution of the Sale Deed dated 31.08.1967. Consequently, the High Court has dismissed the said second appeal. The impugned judg ment and order passed by the High Court dismissing the second appeal is the subject matter of present appeal. 3. Learned counsel appearing on behalf of the appellant – original defendant No.1 has vehemently submitted that as such the pla intiffs filed the suit for declaration claiming ownership/title on the basis of the registered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed the ownership by adverse possession. It is submitted that all the Courts below had negated the claim of the original plaintiffs on the basis of the registered sale deed. It is submitted that thereafter the only question on beh alf of the plaintiffs was the claim on the basis of the adverse possession. It is submitted that in the impugned judgment and order, the High Court has 567 though held the substantial question of law on adverse possess ion in favour of the appellant by observing that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and plaintiffs cannot be permitted to take the same p lea at the same time, thereafter the High Court has dismissed the appeal and confirmed the judgment and order passed by the First Appellate Court decreeing the suit for title and also passed the decree for pe rmanent injunction. 3.1 It is vehemently submitted by the counsel on behalf of the appellant that once the original plaintiffs failed to get the decree for title/ declaration on the basis of the Sale Deed executed on 31.08.1967 (Ex.P.1) and the substantial question of law with respect to the adverse possession was held in favour of the appellant by the High Court, thereaft er the original plaintiffs shall not be entitled to the decree of permanent injunction. 3.2 It is further submitted that the High Court has fa iled to appreciate that once the plaintiffs are not found to be t he owner, they cannot claim their title by way of adverse possession. Their possession over the land in question can only be in the nature of an encroacher. It is submitted that therefore both, the First Appellate Court as well as the High Court have seriously erred in granting the permanent injunction in favour of the plaintiffs and against the defendants. 4. Ms. Swarupama Chaturvedi, learned AAG appearing on behalf of the respondent No.2 – State has submitted that she is appearing for a proforma respondent and therefore, has nothing to add. 5. Having gone through the impugned judgment and order 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 nega ted 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 KESAR BAI v. GENDA LAL & ANR. [M. R. SHAH, J.] 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. In that view of the matter and once the substantial question of la w on adverse possession was held in favour of the appellan t – original defendant No.1 and the title/ownership claimed on the basis of the Sale Deed dated 31.08.1967 (Ex.P.1) was negated by all the Courts belo w, thereafter the possession/alleged possession of the plaintiff s could not have been protected by passing a decree of permanent in junction in favour of the plaintiffs. Under the circumstances, the High Cour t has materially erred in dismissing the appeal and confirming the judgment and order passed by the First Appellate Court. 6. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the High Court passed in Second Appeal No. 8 of 1999 and the judgment and order passed by the First Appellate Court are hereby qua shed and set aside and the judgment and decree passed by the learned Trial Court dismissing the suit is hereby restored. Present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to cos ts. Bibhuti Bhushan Bose Appeal allowed. (Assisted by : Preetam Bharti, LCRA)