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Madhya Pradesh High Court · body

2007 DIGILAW 335 (MP)

Ganpat v. Darshanlal

2007-03-21

S.K.GANGELE

body2007
ORDER 1. Defendants-appellants have filed this appeal against the judgment and decree passed in Civil Appeal No. 97-A/99 affirming the judgment and decree passed in Civil Suit No. 116-A/94. 2. Plaintiff Darshanlal filed a suit for declaration and possession with regard to suit land bearing Survey No. 62/3, area one hectare situated at village Rajnakhedi, Tehsil Raghogarh, District Guna against Pannalal and Ramkalibai. During pendency of the suit, Pannalal and Ramkalibai both died and their legal representatives have been brought on record. Present appellants are legal representatives of Pannalal and Ramkalibai. 3. Plaintiff pleaded that the aforesaid land, was granted to him by Tehsildar, Raghogarh by way of lease-deed dated 16.5.1984. He was also given possession over the aforesaid land. However, after some time the defendants took possession of the suit land and for the last six years they had been cultivating the said land. The plaintiff demanded the possession but that has not been given. The defendants denied the pleadings of the plaintiff and pleaded that they had been in possession over the suit land from the time of their father and no possession was delivered to the plaintiff at the time of grant of lease. 4. The trial Court after appreciation of evidence has held that the plaintiff was granted a valid lease deed of the suit land and earlier the defendants and their father were in possession of the suit land, but their possession cannot be said to be adverse because there was no pleading to this effect in the written statement filed by the defendants and even though from the evidence out of the total land only nine biswas of land was under cultivation and rest of the land was Padat and was being used for growing grass and grazing animals and in that circumstance the adverse possession of the defendant cannot be held to be proved. The trial Court negatived the plea of limitation with regard to possession raised by the defendants and decreed the suit. The lower appellate Court also affirmed the findings arrived at by the trial Court. During pendency of the appeal the appellants defendants also filed an application for amendment in the written statement with regard to taking the plea of adverse possession. That prayer has been rejected by the lower appellate Court. 5. The lower appellate Court also affirmed the findings arrived at by the trial Court. During pendency of the appeal the appellants defendants also filed an application for amendment in the written statement with regard to taking the plea of adverse possession. That prayer has been rejected by the lower appellate Court. 5. Learned counsel for appellants has submitted that both the Courts below have committed error of law in negativing the pleading of adverse possession of the appellants and also decreeing the suit. On the aforesaid substantial question of law the appeal has to be admitted. 6. I am not in agreement with the arguments advanced by the learned counsel for the appellants. From the facts stated above, it is clear that defendants did not take any plea of adverse possession in written statement and at the appellate stage they submitted an application for amendment in the written statement and that has rightly been rejected by the lower appellate Court because the plea of adverse possession has to be taken at the initial stage. Before granting the lease in favour of the plaintiff the land was of the ownership of the Government and from evidence it is clear that only nine biswas out of the total suit land was under cultivation. In such circumstances, the possession of the defendants cannot be held to be adverse. 7. With regard to filing of the suit within limitation under Art. 65 of the Limitation Act, the lease was granted to the plaintiff on 16.5.1984 and the suit was filed on 22.6.1991, hence both the Courts below have not committed any error of law in holding that the suit was within limitation, the plaintiff was granted a valid lease deed by the Tehsildar. In such circumstances, the decree of declaration and delivery of possession has rightly been granted in favour of the plaintiff. 8. Consequently, in my opinion, no substantial question of law arises in this appeal. It is hereby dismissed. No order as to cost.