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2010 DIGILAW 1243 (MP)

Shalig Ram v. Anant Ram

2010-12-16

U.C.MAHESHWARI

body2010
JUDGMENT U.C. Maheshwari, J. 1. The Appellants - Defendant Nos. 1, 3 (a) and 3 (d) have directed this appeal under Section 100 of Code of Civil Procedure being aggrieved by the judgment and decree dated 15th October 1992 passed by Additional Judge to District Judge Panna in Civil Regular Appeal No. 50-A/92 dismissing their appeal by affirming the judgment and decree dated 21.3.1991 passed by Civil Judge, Class-II, Panna in Civil Original Suit No. 202/84, decreeing the suit of the Respondent No. 1 for perpetual injunction against the Appellant No. 1 and late Gaya Prasad (Principal Defendant No. 3) the predecessor in interest of the Appellant No. 2, 3 and Respondent No. 2 (a) 2 (d) and 3. 2. The facts giving rise to this appeal in short are that Respondent No. 1 Anantram filed the suit for perpetual injunction against the Appellant No. 1 - Shalig Ram and the Gaya Prasad, (the principal Defendant No. 3) by impleading the State of M.P. as formal party with respect of the revenue paid land bearing survey No. 2067/1 situated in village Dwari, tahsil and district Panna with a prayer restraining the applicant No. 1 and said Gaya Prasad from any interference in his title and possession of such land. As per further averments of the plaint, the Defendant/respondent No. 1, being in possession of such land since last fifty years has been cultivating the same. During this period in the year 1953-1954, a well was also dug by him towards the southern side of this land. Besides this some trees of lemon and guava were also planted by him. The same are in existence on such land. The Appellant No. 1 and said Gaya Prasad being the agriculturist of adjoining land bearing survey No. 2066, on dated 21.9.1984 accompanied with some of their relatives entered in the field of the Respondent No. 1 and after giving him the beating had snatched his agricultural implements. After reporting such incident to Police, Amanganj to protect the possession of the land, Respondent No. 1 filed the impugned suit for perpetual injunction. 3. After reporting such incident to Police, Amanganj to protect the possession of the land, Respondent No. 1 filed the impugned suit for perpetual injunction. 3. On the other hand on behalf of the Appellant No. 1 and said Gaya Prasad their separate identical written statements were filed in which by disputing the averments of the plaint, in addition, it is stated that the disputed land on which the alleged well and trees are situated, being part of their land of survey No. 2066, they are in possession of the same and the Respondent No. 1 - Plaintiff did not have any title or possession over the same. By denying the allegation of beating, it is stated that they were beaten by the Respondent No. 1, on which they reported the matter to the Police. It is also stated that the sign of demarcation made and fixed by the Revenue Inspector had been removed by the Respondent No. 1 and thereafter on wrong pretext, he is claiming the disputed land to be a part of his land bearing survey No. 2067/1. While infact such land being part of above mentioned survey No. 2066, they are in possession of the same as Bhumiswami. Some averments regarding map of the settlement of Samvat 2012 are also stated by them. As per further averments under the garb of the impugned suit, the Respondent No. 1 is trying to take possession of their land forcefully. With these averments the prayer for dismissal of the suit is made. 4. In view of the pleadings of the parties after framing the issues the evidence was recorded. On appreciation of the same, by holding that the Respondent No. 1 being Bhoomiswami of the disputed land is in possession of the same, his suit was decreed against the Appellants and the Respondent No. 2 (a) to 2 (d) and 3 for perpetual injunction. 5. On appreciation of the same, by holding that the Respondent No. 1 being Bhoomiswami of the disputed land is in possession of the same, his suit was decreed against the Appellants and the Respondent No. 2 (a) to 2 (d) and 3 for perpetual injunction. 5. Being dis-satisfied with such decree, the Appellants herein filed the appeal under Section 96 of the Code of Civil Procedure in which taking into consideration the demarcation proceedings and its report prepared by the Revenue Authorities at the instance of the Respondent No. 1 before filing the suit contending that on demarcation, the disputed land was found to be part of survey No. 2067/1 recorded in the name of Appellants in the record of rights but on appreciation of evidence its long possession was found with the Respondent No. 1 - Plaintiff and in such premises, by holding the Respondent No. 1 had perfected the title on such land by adverse possession, by modifying the findings of the trial court in such manner affirmed the decree of such court and accordingly such appeal has been dismissed, on which the Appellants have come forward to this Court with this appeal. 6. On earlier occasion, vide order dated 5.3.1993 this appeal was admitted on following substantial question of law: Whether the courts below have correctly applied the doctrine of adverse possession and passed a decree in favour of the Plaintiff- Respondent No. 1 on the assumption that he has perfected his title by adverse possession in respect of the suit land? 7. Shri Pranay Verma, learned appearing counsel for the Appellants, after taking me through the pleadings, evidence and the exhibited documents said that according to demarcation proceeding carried out by the revenue authorities at the instance of the Respondent No. 1 before filing the suit the disputed land alongwith the disputed well and trees were found to be the part of the land of survey number belonging to the Appellant No. 1 and Gaya Prasad and as per available evidence pleadings and evidence, the ingredients of the adverse possession had neither been pleaded nor proved on behalf of the Respondent No. 1, therefore, firstly mere by holding the long possession of the Respondent No. 1 over the disputed land, the appellate court did not have any authority to hold that the Respondent No. 1 has perfected his title over the disputed land by adverse possession. In continuation he said that for the sake of the arguments if it is deemed that Respondent No. 1 was remained in long possession of such land of the Appellants but during that period by declaring himself to be the owner of the property in the knowledge of the Appellant, if he did not take any steps for conferring such right, then mere on account of possession of Respondent No. 1 under some misconception and for want of knowledge of the Appellant it could not be deemed that Respondent No. 1 has perfected the title on it by adverse possession by extinguishing the right and title on the true owner-the Appellants. In support of this contention, he placed his reliance on a reported case of the Apex Court in the matter of Deva (dead) through L. Rs. v. Sajjan Kumar (dead) by L. Rs. reported in (2003) 7 SCC 481 . He further said that the Respondent No. 1 has filed the impugned suit for perpetual injunction on the basis of his possession only, therefore, in any case the courts below did not have any authority to decide the title of the disputed property. Contrary to this, the appellate court has decided the suit by modifying the findings of the trial court and holding the Respondent No. 1 had perfected his title over the land by adverse possession. So such findings of the courts below on the question of title is not sustainable in any manner and in such premises prayed to answer the aforesaid question accordingly in favour of the Appellants by allowing this appeal. 8. No one has appeared on behalf of Respondent No. 1 to assist the court for adjudication of this appeal. 9. Keeping in view the arguments, advanced, I have carefully gone through the records of both the courts below, also perused the impugned judgments. It is undisputed fact on record that before filing the suit at the instance of the Respondent No. 1 some demarcation proceeding of the disputed land was carried out by the revenue authorities. According to such proceeding the disputed land, well and the trees were found to be the part of the land bearing survey No. 2066 recorded in the name of Appellant No. 1 - Defendant No. 1 and the deceased Defendant No. 3 -Gaya Prasad. According to such proceeding the disputed land, well and the trees were found to be the part of the land bearing survey No. 2066 recorded in the name of Appellant No. 1 - Defendant No. 1 and the deceased Defendant No. 3 -Gaya Prasad. As per further averments of such report the disputed part of the land was found in possession of the Respondent No. 1 -plaintiff. After recording the evidence, on appreciation, the trial court by ignoring such demarcation report taking into consideration the endorsement of some khasra entries decreed the suit of the Respondent No. 1 for perpetual injunction holding him to be in possession of the land but the appellate court, on re-appreciation of the evidence by modifying such findings of the trial court affirmed the decree of perpetual injunction in favour of the Respondent No. 1 by holding that he being in long possession of such land has perfected his title over the same by adverse possession and affirmed the decree of the trial court accordingly. 10. After perusing the record and both the judgments, I am of the considered view that in view of the prayer of perpetual injunction, made by the Respondent No. 1 - Plaintiff, in the suit the courts below had not any authority to consider the matter and decide the same by holding the title of the property so both the courts below have committed error in deciding the matter beyond the pleadings and the prayer made in the plaint, I do not have any dispute regarding principle that while deciding the issue of perpetual injunction, the court can consider the question of title incidentally but the manner in which the question of title was considered and adjudicated specifically by the appellate court, the same does not appear to be considered and decided incidentally. On the contrary, it is apparent that in the lack of any pleadings and the prayer, such question was elaborately decided by both the courts below. So in such premises, the findings of the courts below on the question of title could not be said to be legal and binding against either of the parties. 11. In any case in the available set of facts and the evidence it is apparent that the aforesaid earlier demarcation report was not properly considered by either of the courts below. 11. In any case in the available set of facts and the evidence it is apparent that the aforesaid earlier demarcation report was not properly considered by either of the courts below. Mere on account of long possession of the Respondent No. 1 over the disputed land, in the available circumstances, he could not be declared to be the Bhumiswami of the disputed land. Nowadays the law is well settled that unless the requisite ingredients of the adverse possession as per requirement of law are proved mere on account of long possession of the property under some misconception the person like Respondent No. 1 could not have been declared to be the Bhumiswami of disputed land holding that he has perfected the title of the property by adverse possession. Besides this in the lack of any positive evidence showing that on which date the Respondent No. 1 declared himself to be the owner and Bhumiswami of the disputed property in the knowledge of the Appellant No. 1 and said Gaya Prasad and on which date by completing twelve years in uninterrupted possession of the property he has perfected his title over the property. In fact the same has not been proved by cogent, admissible and reliable evidence. In such premises, the approach of the appellate court holding the Respondent No. 1 had perfected his title over the disputed land by adverse possession could not be held to be sustainable under the existing and trite law. 12. In the case of Deva (dead) through L. Rs. (supra) cited by the Appellants' counsel the Apex Court has held as under: - 11. The deposition extracted above, in any case, negatives the Defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the Defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment on Plaintiffs survey number. 12. The above-quoted admission contained in the Defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. 12. The above-quoted admission contained in the Defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of Defendant for a period of more than 12 year without intention to possess the suit land adversely to the title of the Plaintiff and to latter's knowledge cannot result in acquisition of title by the Defendant to the encroached suit land. 13. The Plaintiffs suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The Plaintiffs title over the encroached land could not get extinguished unless the Defendant had prescribed -title by remaining in adverse possession for a continuous period of 12 years. 13. So in view of the principle laid down in the cited case, on examining the case at hand, the same appears to be applicable here and in such premises, it could not be deemed that the Respondent No. 1 had perfected his title over the disputed land by adverse possession. 14. So aforesaid question is answered accordingly and pursuant to it, the approach of the appellate court holding the Respondent No. 1 has perfected his title over the disputed land by adverse possession being non sustainable under the law is hereby set aside. 15. After setting aside the aforesaid finding of the appellate court, the findings of the trial court has been restored, according to which the Respondent No. 1 was held to be the Bhumiswami of the disputed land as same was found by such court as part of his land. So in the available circumstances in order to resolve the dispute of the parties under the authority of the provision of Order 41 Rule 33 of the Code of Civil Procedure, this Court has to consider the case in that respect also. 16. Firstly in the suit for perpetual injunction the appellate court was not having the authority to decide the question of title of the disputed property. Besides this, in the lack of any such pleadings and the prayer, the trial court has committed grave error in holding the disputed land to be the part of the land belonging to the Respondent No. 1 as Bhumiswami. Besides this, in the lack of any such pleadings and the prayer, the trial court has committed grave error in holding the disputed land to be the part of the land belonging to the Respondent No. 1 as Bhumiswami. So till this extent the findings of the trial court is also set aside. Apart this on perusing the evidence available on record and exhibited documents, it is revealed that on the date of the suit the Respondent No. 1 was in settled possession of the disputed land and under the law as laid down by the Apex Court in the matter of Rame Gowda (dead) by L. Rs. v. M. Varadappa Naidu (dead) by L. Rs. and Anr. reported in (2004) 1 SCC 769 , he could not dispossessed by the Appellants or the Respondent No. 2 (a) to 2 (d) or 3 without taking recourse of prescribed procedure of law. So till this extent the suit of the Respondent No. 1 ought to have been decreed by the trial court for a limited perpetual injunction. But the trial court committed error in decreeing the suit in to. Therefore, after answering the question framed accordingly in the aforesaid manner by allowing this appeal in part the judgment and decree of the courts below are modified in the following manner: - (a) The parties shall be at liberty to initiate an appropriate proceeding before the appropriate forum to get declared their title over the disputed land in accordance with the prescribed procedure and existing legal position. (b) The decree of the perpetual injunction passed by the trial court is modified in the manner that the Appellants and the Respondent No. 2 (a) to 2 (d) and 3 or any other person claiming such property under their rights shall not dispossess the Respondent No. 1 from the disputed property described in the plaint without following or taking the recourse of the existing law. 17. Till this extent the decree is modified. 18. In the available circumstances, there shall be no order as to the costs. 19. Let the decree be drawn up accordingly.