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Madhya Pradesh High Court · body

2003 DIGILAW 1175 (MP)

Sukhdeo v. State of M. P.

2003-10-22

A.K.AWASTHY

body2003
JUDGMENT Appellants/plaintiffs have filed this IInd appeal under section 100 CPC against the judgment and decree dated 22.1.2003 passed by 1st Additional District Judge, Dhar in Civil Appeal No. 9-A/01 reversing the judgment and decree dated 30.11.2000 passed in Civil Suit No. 59-A/98 by Civil Judge Class-I, Dharampuri. The case of the appellants/plaintiffs is that the suit land bearing survey No. 49, area 1. 859 hectares at Village Pedwi, Tehsil Dharampuri, District Dhar was owned and possessed by Shri Gaurishankar and on 9.1.1962 he has sold the suit land by a registered sale deed to Balaji and since then Balaji remained in possession of the suit land as the owner and after his death the appellants are incontinuous possession of the suit land; that on 6.10.1997 a notice was published by the Tehsildar to lease out the suit land and as such relief of declaration of title and permanent injunction be provided to the appellants/plaintiffs. The learned trial Court has held that the suit land was purchased by a registered sale deed and as such the appellants are entitled for the relief of permanent injunction and declaration. The learned appellate Court has held that the original sale deed is not produced and the appellants have not perfected title over the suit land by adverse possession and as such the plaintiffs are not entitled for the relief of declaration and permanent injunction. The appellants have filed the certified copy of the sale deed dated 9.1.1962 which is marked as Ex. P-3. The plaintiffs have notified original sale deed and it is not disclosed that why the original sale deed was not filed and the permission to file certified copy of the sale deed was not obtained by the appellants-plaintiffs. It is held in case reported in AIR 1954 SC 606 and also in the case reported in AIR 1966 SC 1457 (at page 1461) that the foundation should be laid down for the reception of the secondary evidence under section 65 of the Evidence Act and the non-production of the original document should be accounted for. It is held in case of Bhagwatsharan v. Mansingh 1986(I) MPWN 59 that the sale deed cannot be proved by the certified copy of the original sale deed and the original sale deed should be called. In the present case, the execution of sale deed is not proved by the appellants. It is held in case of Bhagwatsharan v. Mansingh 1986(I) MPWN 59 that the sale deed cannot be proved by the certified copy of the original sale deed and the original sale deed should be called. In the present case, the execution of sale deed is not proved by the appellants. The appellants/plaintiffs have not taken any steps to get the name mutated in the revenue record after the alleged sale deed. The possession of the appellants/plaintiffs is also not recorded after the alleged sale deed in the year 1963. The appellants/plaintiffs have also not taken any objection before the revenue authorities at the time of divesting the land to the State after the death of Gaurishankar under section 177 MPLR Code. In the aforesaid background, the learned appellate Court has rightly held that the sale deed in favour of the plaintiffs is not properly proved and in the facts and circumstances of the case it does not confer the title to the plaintiffs. Appellants have not proved that their possession was hostile and adverse to the State for the period of 30 years. It is settled law that the possession of the person will ripe into adverse possession when the same is hostile and adverse to the real owner. It is observed in case of Roopsingh v. Ramsingh 2000 (1) JLJ 368 = AIR 2000 SC 1485 that the possession howsoever long will not perfect into adverse title unless it is hostile to the real owner. The learned appellate Court below has not committed any mistake of law or appreciation of evidence in dismissing the suit of the appellants-plaintiffs. No substantial question of law exists in the case. The appeal being devoid of merit is hereby dismissed in limine.