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2003 DIGILAW 1161 (MP)

KALOO v. MADANLAL

2003-10-16

S.P.KHARE

body2003
S. P. KHARE, J. ( 1 ) ). This is plaintiffs' second appeal under Section 100, CPC. The following substantial question of law was formulated by order dated 12-12-1984 at the time of admission of this appeal :"whether on the facts and in the circumstances of the case, the appellate Court has committed an error Of law in holding that the decree passed in the earlier suit operates as res judicata on the issue about the plaintiffs' adverse possession of the suit land?" ( 2 ) THE plaintiffs' father Devaji instituted civil Suit No. 84-A of 1965 in the Court of civil Judge Class-II, Khilchipur for declaration of title arid permanent injunction for restraining defendant Madanlal from interfering with his possession on Khasra Nos. 588 and 594 total area 3. 484 hectares of village Mohan. He claimed to have purchased these lands from the defendant orally for Rs. 500/- in Samvat 2008. In the alternative he claimed title on the basis of adverse possession for more than 12 years. The trial Court after appreciation of the evidence adduced by both the sides held that oral sale of the lands by the defendant to the plaintiff is not proved. The plaintiff was, however, held to be in actual possession of the lands from Samvat 2011. The acquisition of title by adverse possession by the plaintiff was negatived on two grounds : (a) the possession was not "adverse". The plaintiff was paying land revenue of the land on behalf of defendant Madanlal to the Patwari acknowledging the title of the defendant. In other words the possession of the plaintiff was found to be with the consent of the defendant and it was permissive. This finding has been recorded in Para 11 of the judgment, (b) the possession of the plaintiff was not found to be for the statutory period of 12 years. It was held to be for eleven years. This finding is recorded in Para 12 of the judgment. On these findings the plaintiffs suit was dismissed by the judgment and decree dated 13-2-1968. There was no appeal by him and the judgment of the trial Court became final. ( 3 ) THE present plaintiffs are sons of devaji. They filed this fresh suit in the year 1978 seeking the same relief in respect of the same lands. On these findings the plaintiffs suit was dismissed by the judgment and decree dated 13-2-1968. There was no appeal by him and the judgment of the trial Court became final. ( 3 ) THE present plaintiffs are sons of devaji. They filed this fresh suit in the year 1978 seeking the same relief in respect of the same lands. They now claimed to be in possession of the lands for twenty years and according to them they have perfected their title by adverse possession. The defendant no. 2 has sold the lands in auction for recovery of its dues from defendant No. 1 madanlal and these have been purchased by the defendant No. 3. ( 4 ) THE trial Court and the first appellate court have held that the earlier judgment and decree operate as res judicata in the present suit. ( 5 ) THE learned counsel for both the sides have been heard. As stated above in the earlier suit the plea of the plaintiff of acquisition of title by adverse possession did not prevail for two reasons. Firstly, the possession of the plaintiff was held to be not "adverse" and secondly, it was for 11 years only. The finding that the possession of the plaintiff was not "adverse" would operate as res judicata. The possession of the plaintiff was not in denial of the title of defendantmadanlal. There was no hostile animus. In the fresh plaint filed in the year 1978 by the plaintiffs it is not shown when their possession became adverse. Once it was held that the possession of the plaintiffs' father was permissive and not "adverse the same position would be presumed to continue. In case the possession of the plaintiff in the earlier suit had been held to be adverse then the possession for the period after the dismissal of the earlier suit could be tagged to the period of earlier possession. But the possession for ten years after the dismissal of the earlier suit cannot be tagged to the possession for 11 years before that suit as the earlier possession was held to be not 'adverse'. Permissive possession before the dismissal of the earlier suit cannot be clubbed with the possession of the plaintiff for 10 years after the dismissal of that suit even if the latter possession is held to be adverse. Permissive possession before the dismissal of the earlier suit cannot be clubbed with the possession of the plaintiff for 10 years after the dismissal of that suit even if the latter possession is held to be adverse. Thus, again it falls short of the statutory period of 12 years. ( 6 ) LEARNED counsel for the appellants has argued that in this case plaint and written statement of the earlier suit were not produced before the trial Court and, therefore, the question of applicability of the rule of res judicata could not be considered. He has relied upon decision of the Supreme Court in Syed Mohd. Salie Labbai v. Mohd. Harilfa, air 1976 SC 1569 . But in the present case the facts stated in the judgment in the earlier suit are eloquent enough to show that in the previous suit the plea of adverse possession was not accepted for the reasons given therein. Therefore, this precedent is not applicable to the present case. ( 7 ) ON the other hand learned counsel for the respondents has cited the decision of Bhura Mogiya v. Satish Pagariya (2001) 9 scc 385 in which it has been held by the supreme Court that 'permissive possession' cannot be converted 'into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above. Therefore, applying this principle to the present case it can be held that the permissive possession of the plaintiffs before the dismissal of the earlier suit cannot be tagged to the possession subsequent to the dismissal of that suit. ( 8 ) THE appeal is dismissed. Appeal dismissed. .