Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 23 (MP)

Babul alias Mohammed Hussain (deceased) v. Ramchandra

2002-01-03

S.L.KOCHAR

body2002
Judgment ( 1. ) PLAINTIFF has filed this second appeal under Section 100 of CPC. This appeal was admitted on the following substantial questions of law:- (1) Whether the Courts below committed an error of law in not considering the evidence adduced by the plaintiff regarding the oral sale of the disputed land ? (2) Whether on the facts and in the circumstances of the case the Courts below committed an error of law in not granting relief of injunction as prayed for by the plaintiff ? ( 2. ) THE civil suit was filed by the appellant/plaintiff on 29-10-1977 for declaration of his title over the suit land and permanent injunction in his favour against respondents/defendants. Respondent No. 1 Ramchandra was the owner of 1. 386 hectares agricultural land situated at Village Bara Patthar, Tehsil Mahidipur, bearing Khasra No. 196. The same land has been sold out by respondent No. 1 in favour of his nephew (sisters son) Radheshyam by registered sale deed on 10-5-1977 (Ex. P-11 ). The plaintiffs case was that before 22 years the suit land was purchased by him after paying consideration of Rs. 600/ -. This was the oral purchase. Thereafter, he is in continuous possession over the suit land thereby acquired title as per law of adverse possession. ( 3. ) THE respondents/defendants have refuted the claim of the appellant. The case of the respondent No. 1 was that he never sold land to the appellant nor the appellant is in continuous possession over the same. The learned Trial Court by judgment and decree dated 24-2-1981 dismissed the suit holding that the suit land was never sold by respondent No. 1 to the appellant nor he was in continuous possession for more than 12 years. It has also been held by the learned Trial Court that on 21-10-1977 the appellant and respondent No. 1 entered into a compromise and executed a document Ex. D-1 regarding some old payment for Hakai (ploughing) and rent. After elaborate discussion of oral and documentary evidence the suit was dismissed. Against which the appellant went up in first appeal and learned First Appellate Court vide its judgment and decree dated 16-4-1982 also dismissed the appeal in its entirety. Learned Lower First Appellate Court has also considered all legal and factual grievances agitated by the appellant therein dissatisfied with this. Against which the appellant went up in first appeal and learned First Appellate Court vide its judgment and decree dated 16-4-1982 also dismissed the appeal in its entirety. Learned Lower First Appellate Court has also considered all legal and factual grievances agitated by the appellant therein dissatisfied with this. The appellant has preferred this second appeal before this Court. ( 4. ) FOR first substantial question of law regarding oral sale between the appellant and respondent No. 1, learned Trial Court has discussed the evidence in detail in Paragraphs 6 to 11 of its judgment and held that the appellant/plaintiff was not able to prove that before 22 years, the suit land was purchased by him for consideration of Rs. 600/- by oral sale and also obtained possession. The plaintiff relied on documents Exs. P-1 to P-5 and P-10 regarding payment of Lagan (Tozi) but all these receipts are in the name of respondent No. 1 Ramchandra. In these receipts title of the appellant is not shown so Lagan could be paid by the land owner through anybody. Apart from this, the actual Lagan was 7. 22 paise whereas the receipts Ex. P-1, P-2, P-4 and P-5 are showing sub-tax (Upkar) 0. 72 paise. The receipt Ex. P-3 is not related with the suit land but showing some different Khasra No. i. e. , 63. These documents are not sufficient to establish the oral sale between the parties and delivery of possession in pursuance thereof. ( 5. ) IT was argued on behalf of the appellant before the Lower Appellate Court that the plaintiff had acquired Bhumiswami rights under an invalid sale and has perfected his title by adverse possession. First of all, both the Courts below have not found on the material available on record that there was any oral sale secondly as per provisions of Section 54 of Transfer of Property Act, the property valuing more than Rs. 100/- could only be transferred by execution of registered sale-deed, therefore, the alleged oral sale of the property between the appellant and respondent No. 1 was invalid and on the basis of such sale, no title or right could be acquired by the plaintiff. ( 6. ) FOR the purposes of establishing continuous adverse possession over the suit land for 12 years the appellant did not lead any evidence that on what date and year he had taken the possession. ( 6. ) FOR the purposes of establishing continuous adverse possession over the suit land for 12 years the appellant did not lead any evidence that on what date and year he had taken the possession. The plaintiff has relied on a certified copy of revenue record Exs. P-12 to P-14 which are showing his possession over the suit land in the years 1965-66, 1966-67, 1969-70 and then 1977 to 78 for 4 years. In the same document relied by plaintiff in column No. 3 the name of the respondent No. 1 Ramchandra is mentioned as landlord. Both the Courts below have held that only on the basis of entry of possession in the land record for 4 years, that too was not in continuation, it could not be said that the appellant was in continuous possession over the suit land more than 12 years. In years 1968-69, 1971-72, 1972-73, 1973-74, 1974-75, 1975-76 and 1976-77, the name of respondent No. 1 Ramchandra is mentioned as landlord in column No. 3. In this khasra No. the name of appellant is not mentioned in any column showing his possession. It means that the respondent No. 1 was in possession of suit land. Because of some mere stray entries in favour of the appellant it cannot be said that he was in continuous possession for more than 12 years over the suit land. In Sir Bhimeshwara Swami Varu Temple v. Pedaputi Krishna Murti and Ors. ( AIR 1973 SC 1299 ) case Supreme Court has held:- "the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. ( 7. ) IN the present case the number of khasra entries are showing the name of the respondent No. 1 whereas only 4 khasra entries Exs. P-12 to P-14 are showing only possession of the appellant that too was not in continuation. ( 7. ) IN the present case the number of khasra entries are showing the name of the respondent No. 1 whereas only 4 khasra entries Exs. P-12 to P-14 are showing only possession of the appellant that too was not in continuation. In these documents the name of the respondent No. 1 is mentioned as the owner of the land after so called oral purchase though not proved by the appellant, why the appellant had not taken steps within the period of limitation by filing suit for specific performance for execution of sale-deed and thereafter for mutation of his name. The document Ex. D-l is showing the signature of the appellant and other witnesses and this document is showing that there was dispute of payment of money between the appellant and respondent No. 1 and was resolved by this document. Learned Trial Court has rightly relied upon this document. ( 8. ) THE oral evidence adduced by the appellant is also not establishing his continuous possession for more than 12 years, over the suit land. The careful perusal of statement of plaintiffs witness P. W. 2 Sattar is also clearly indicating that the appellant and respondent No. 1 both were ploughing the field and after reaping the crop, respondent was also taking the same. The star witness of the plaintiff is not able to state positively that the appellant was in exclusive possession over the suit land. Specific questions were put in cross-examination for possession over the suit land for which he had given evasive reply. The statement of plaintiffs witness (P. W. 4 Mohd. Khan) is also not of definite character about transaction of oral sale and payment of Rs. 600/- by appellant to the plaintiff. He has stated that before 25 years in front of him Rs. 600/- were given by appellant to the respondent No. 1 with regard to some land. Nowhere he has stated that money was paid in consideration of sale of suit land. His evidence is not helpful to the appellant for the purposes of sale as well acquiring possession over the same. The statement of plaintiffs witness (P. W. 5 Gulam Mohd.) as a matter of fact, demolishes the case of the appellant about his possession over the suit land for more than 2 years. His evidence is not helpful to the appellant for the purposes of sale as well acquiring possession over the same. The statement of plaintiffs witness (P. W. 5 Gulam Mohd.) as a matter of fact, demolishes the case of the appellant about his possession over the suit land for more than 2 years. This witness has deposed that over the suit land, the plaintiff and respondent No. 1 both were ploughing and sometime on behalf of respondent his servant Sav Singh alias Shambhu was ploughing the field. He has also deposed that for 2 to 4 years one Sav Singh alias Shambhu had worked through the plough of respondent No. 1, according to this witness the appellant had harvested the field for 5 to 10 years and he had seen appellant and respondent No. 1 both harvesting the field jointly prior and after cultivation by Sav Singh alias Shambhu. In cross-examination in para 2 this witness Gulam Mohd. has deposed that plaintiff and respondent No. 1 were having very close relation and because of which respondent No. 1 was getting his field ploughed by appellant and for sometime through Shambhu alias Sav Singh. Sometime respondent No. 1 used to take the plough of appellant on rent. ( 9. ) IN view of the aforesaid documentary and oral evidence as well as concurrent findings on fact by the Courts below, this Court is of the opinion that there is no force in the appeal and the same is dismissed.