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2003 DIGILAW 572 (MP)

Draupadi Bai v. Nathu Singh

2003-04-22

S.K.PANDE

body2003
JUDGMENT 1. Being aggrieved by the judgment-decree dated 19.9.1988 passed by ADJ, Khurai in C.A. 27-A/86 reversing the judgment-decree dated 21.3.1986 passed by IIIrd Civil Judge Class II, Khurai in C.S. No. 61-A/81, whereby plaintiff-appellant suit for declaration, possession and recovery of mesne profit was decreed, plaintiff-appellant has preferred this second appeal u/s 100 of the CPC. 2. The appeal was admitted on the following substantial questions' of law : "(i) Whether in the facts and circumstances of the case the first appellate Court erred in law in negativing the claim of the plaintiff-appellant that the sale deed dated 11.6.1953 executed by him in favour of the defendant.,-respondent did not evidence transaction of sale but represented a transaction of loan ?" (ii) Whether in the alternative, the first appellate Court erred in law in negativing the claim of the plaintiff-appellant that he acquired title in respect of suit land by his adverse possession over the same for a period of more than 12 years?" 3. The facts in brief, late Prem Singh plaintiff instituted C.S. No. 61-A/81 against the defendant late Bhagwan Singh. It has been stated that plaintiff-Prem Singh was owner-of the suit land Khasra No. 490 area 6.12 acre village Silooha Tehsil Khurai district Sagar. He was brother-in-law of late Bhagwan Singh. Since he required some money to meet the necessary expenses, late Bhagwan Singh advanced a loan of Rs. 1,000/- on a condition to execute a normal sale deed of the suit land in his favour. Registered sale deed dated 11.6.1953 was accordingly executed and an agreement on behalf of late Bhagwan Singh too was executed in favour of late Prem Singh that on payment of aforesaid amount by 15.7.1954, reconveyance deed shall be executed by him in favour of late Prem Singh. Late Prem Singh remained in possession of the suit land continuously, as late Bhagwan Singh was resident of another village Semra Lalpur Tehsil and Distt. Sagar. The loan amount was repaid to him, however, the reconveyance in favour of late Prem Singh remained unexecuted. In the year 1981 late Bhagwan Singh, on the basis of the sale deed dated 11.6.1953, applied for mutation of his name in revenue record and the order dated 7.5.1981 was passed in his favour by Tahsildar in Revenue Case No. 91-A/6/1980-81. On the basis, the name of late Bhagwan Singh was mutated. In the year 1981 late Bhagwan Singh, on the basis of the sale deed dated 11.6.1953, applied for mutation of his name in revenue record and the order dated 7.5.1981 was passed in his favour by Tahsildar in Revenue Case No. 91-A/6/1980-81. On the basis, the name of late Bhagwan Singh was mutated. Late Prem Singh, therefore, instituted C.S. No. 61-A/81 for declaration of title on the suit land Khasra No. 490 area 6.12 acre and also prayed for the relief of permanent injunction restraining late Bhagwan Singh from interfering in his possession. Since application for temporary injunction was rejected, late Bhagwan Singh during the pendency of the suit dispossessed him from the suit land in March, 1982. Consequential relief of restoration of possession, recovery of mesne profit Rs. 2,700/was claimed. Late Bhagwan Singh resisted the suit. It was contended that the sale deed dated 11.6.1953 was not of loan transaction and one year time was given to late Prem Singh to reconveyance as parties were related. Late Prem Singh failed to seek reconveyance as per agreement and remained in permissive possession of the suit land on his behalf. The name in the revenue record was properly mutated by the order dated 7.5.1881 and defendant late Bhagwan Singh was the owner of the suit land. Civil Judge while decreeing the suit C.S. 61-A/81 adjudicated in favour of plaintiff late Prem Singh that the sale deed dated 11.6.1953 was towards the security of loan Rs. 1,000/- advanced to him by defendant late Bhagwan Singh. The loan amount was repaid thereafter and late Prem Singh continuously remained in possession 'of the suit land as of right and was dispossessed in the year 1982. Therefore, the suit for declaration, restoration of possession, permanent injunction, recovery of mesne profit Rs. 2,700/- was decreed. Being aggrieved by the judgment-decree aforesaid the late Bhagwan Singh preferred C.A. 27-A/86 in the Court of ADJ, Khurai. The judgment-decree passed by Civil Judge vide judgment dated 21.3.1986 was reversed by him vide judgment-decree dated 19.9.1988. It was held that the possession of late Prem Singh was permissive of late Bhagwan Singh and the sale deed dated 11.6.1953 was not a document executed towards the security of loan. The amount of Rs. 1,000/- since was not returned within the stipulated period by 15.7.1954, the reconveyance was not obtained from late Bhagwan Singh. It was held that the possession of late Prem Singh was permissive of late Bhagwan Singh and the sale deed dated 11.6.1953 was not a document executed towards the security of loan. The amount of Rs. 1,000/- since was not returned within the stipulated period by 15.7.1954, the reconveyance was not obtained from late Bhagwan Singh. Since Prem Singh, Bhagwan Singh have died their representatives Draupadi Bai, Nathi Bai, Nathoo Singh, Prabhu Singh, Devi Singh respectively were brought on record in the present second appeal. 4. Suit land Khasra No. 490 area 6.12 acre village Silocha Tehsil Khurai District Sagar was owned by late Prem Singh. He remained in its possession continuously till March 1982 and on the basis of sale deed dated 11.6.1953 of late Bhagwan Singh was mutated in the revene record for the first time vide order dated 7.5.1981 on an application made by him to Tahsildar. The sale-deed (Ex. P-2) was executed for a sum of Rs. 1,000/- in favour of late Bhagwan Singh. Simultaneously late Bhagwan Singh has executed agreement (Ex. P-1) agreeing to receive Rs. 1,300/- and to execute a reconveyance of the suit land in favour of late Prem Singh, The aforesaid facts were admitted. PW 1 Prem Singh had stated that the late Bhagwan Singh was his brother-in-law (BARNOI). Rs. 1,000/- was borrowed from him and a sale deed of the suit land for his satisfaction was executed. It was agreed that on payment of Rs. 1,300/- inclusive of interest within a period of one year time late Bhagwan Singh will execute a reconveyance in his favour. Sale Deed Ex. P-2 accordingly was executed and late Bhagwan Singh also executed an agreement, Ex. P-1 in his favour. PW 1 Prem Singh further stated that Rs. 1,300/- were repaid by him to late Bhagwan Singh within a year. Reconveyance deed was not executed by him by saying that Prem Singh was continuous in actual possession of the suit land and on the basis of sale deed Ex. P-2 name was not mutated in .the revenue record. This statement of PW 1 Prem Singh was fully supported by PW 2 Nathoo Singh and attesting witness of Ex. P-2, sale deed. P-2 name was not mutated in .the revenue record. This statement of PW 1 Prem Singh was fully supported by PW 2 Nathoo Singh and attesting witness of Ex. P-2, sale deed. PW 3 Tulsiram, PW 4 Arjan have also supported the aforesaid statement of PW 1 Prem Singh that the sale deed was a shown document and late Prem Singh remained in possession in continuity till dis-possessed in the year 1982. DW 1 simply stated that Rs. 1,300/- were not repaid to him by late Prem Singh and he remained in permissive possession of the suit land. Only 6 years ago he entered into possession of the suit land after getting his name mutated in the revenue record. No ther witness was examined on behalf of the defendant late DW 1 Bhagwan Singh. The following facts have emerged from the aforesaid statement and document Ex. P-4, P-5, P-6, P-7 of the revenue records : (i) On execution of sale deed (Ex. P-1) on 11.6.1953 possession of the suit land was not delivered to late Bhagwan Singh. It was agreed between the parties that on repayment of Rs. 1,300/- a reconveyance shall be made in favour of late Prem Singh by late Bhagwan Singh. (ii) Late Bhagwan Singh was resident of another village Semra Lalpur Distt. Sagar and had no house of infrastructure of cultivation of suit land situated at village Sirocha. (iii) Prem Singh remained in possession continuously till March 1982 and the ownership on the basis of sale deed Ex. P-2 was claimed by late Bhagwan Singh for the first time in the year 1981 by filing application for mutation of name in revenue record. (iv) As stated by witnesses supporting late Prem Singh, Rs. 1,300/were repaid by him to late Bhagwan Singh. In the light of the aforesaid the Civil Judge pronounced the judgment in favour of late Prem Singh and decreed the suit as prayed for. Ignoring the aforesaid facts the learned ADJ has held the possession of late Prem Singh as permissive and rejected the contention of title being perfected by adverse possession. Learned counsel for the respondent has cited judgment reported in (1990) 4 SCC 706 and (1998) 2 SCC 226 , where there was an agreement of reconveyance and if under the agreement the possession has been retained, the nature of such possession could not be termed to be adverse. Learned counsel for the respondent has cited judgment reported in (1990) 4 SCC 706 and (1998) 2 SCC 226 , where there was an agreement of reconveyance and if under the agreement the possession has been retained, the nature of such possession could not be termed to be adverse. Adverse possession implies that it commenced in wrong and is maintained against right. It was contended that in Ex. P-1 the agreement to reconveyance within a period of one year was on the basis of the contract and in the absence of reconveyance being sought, right, if any, had extinguished. 5. Late Prem Singh and Late Bhagwan Singh were real brother-in-laws. DW 1 Bhagwan Singh in his cross-examination had admitted that to meet the expense of litigation late Prem Singh obtained Rs. 1,000/- from him and executed a sale-deed Ex. P-2 in his favour. Agreement Ex. P-1 for reconveyance was also executed by him in favour of late Prem Singh. PW 1 Prem Singh has categorically stated that the money aforesaid was repaid to DW 1 late Bhagwan Singh within a period of one year. This part of statement was fully supported by PW 2 Natthoo Singh who was a attesting witness of Ex. P-2. Late Prem Singh remained in possession of the suit land inspite of execution of sale deed Ex. P-2 and continued in its possession till March, 1982. The uninterrupted possession for the period during 11.6.1953 to March 1982 speaks for itself that the sale-deed was subsequently misused by DW 1 Bhagwan Singh for seeking mutation of his name in revenue record and dispossessing him from the suit land. Accordingly, the judgment-decree dated 21.3.1986 passed by IIIrd Civil Judge Class-II Khurai in C.S. 61-A/81 was proper. The learned ADJ has wrongly negatived the findings aforesaid and concluded a right and title vested in favaur of late Bhagwan Singh. The substantial questions of law as framed herein were pivotal far discussion of evidence. It aught to. have been held that the sale deed dated 11 6.1953 (Ex. P-2) did not show evidence of transaction of sale instead represented the transaction of loan and also. that by continuous possession the title was perfected by late Prem Singh as against late Bhagwan Singh. 6. Consequently the appeal is allowed. It aught to. have been held that the sale deed dated 11 6.1953 (Ex. P-2) did not show evidence of transaction of sale instead represented the transaction of loan and also. that by continuous possession the title was perfected by late Prem Singh as against late Bhagwan Singh. 6. Consequently the appeal is allowed. Judgment-decree dated 19.9.1988 passed by ADJ Khurai in C.A. 27 A/86 are set-aside instead the suit stands decreed as per judgment-decree dated 21.3.1986 passed by III Civil Judge Class II, Khurai in C.S. 61-A/81. The respondents shall bear their cast and pay the Cost of the appellants. Counsel fee as per rule or certificate (whichever is less).