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2011 DIGILAW 747 (MP)

Ramratan v. Kanhaiyalal

2011-07-09

N.K.MODY

body2011
Judgment ( 1. ) BEING aggrieved by the judgment dated 27-7-2010 passed by 6th Addl. District Judge, Indore in Civil Appeal No. 1/2010, whereby the judgment dated 22-1-2010 passed by 2nd Addl. Civil Judge Class II, Indore in Civil Suit No. 40-A/2008, whereby suit filed by the appellant was dismissed and the counter-claim filed by respondents No. 4 to 6 was decreed, was maintained, present appeal has been filed. ( 2. ) THE appeal was admitted for final hearing by this Court on the following substantial questions of law :- "1) Whether in the facts and circumstances of the case learned appellate Court was justified in not taking into consideration the application filed by the appellant under Order 41, Rule 27 Civil Procedure Code? 2) Whether in the facts and circumstances of the case learned appellate Court was justified in making out a different case, which was not a case set up by the respondents in their pleadings? Short facts of the case are that appellant filed a suit on 15-2-2007 for declaration and permanent injunction alleging that appellant is resident of village Bijalpur, Tehsil and District Indore and is an agriculturist. It was alleged that respondents No. 1 to 6 are the members of one family and are also resident of village Bijalpur. It was alleged that predecessor-in-title of respondents No. 1 to 6 was Mangalji, who was having two sons Mukund and Atmaram. It was alleged that Mukund was having three sons Kanhaiyalal, Girdhari and Ramratan. It was alleged that Kanhaiyalal is respondent No. 1 and rest of the respondents are the LRs of Girdhari and Ramratan. Further case of the appellant was that respondents No. 1 to 6 are having their separate land at village Bijalpur. It was alleged that partition took place in the family of respondents No. 1 to 6 before 35 years. It was alleged that land bearing survey No. 1023 measuring 0.628 hectares came into the share of Kanhaiyalal s/o Atmaram respondent No. 1, which is the suit land. It was alleged that suit land was sold by respondent No. 1 to the appellant in the year 1976 for a consideration of Rs. 11,000/-. It was alleged that after receipt of the consideration possession of the suit land was given to the appellant for which no sale deed was executed in favour of the appellant. It was alleged that suit land was sold by respondent No. 1 to the appellant in the year 1976 for a consideration of Rs. 11,000/-. It was alleged that after receipt of the consideration possession of the suit land was given to the appellant for which no sale deed was executed in favour of the appellant. It was alleged that since then appellant is in occupation of the suit land. Further case of the appellant was that appellant is a poor illiterate person. Appellant repeatedly requested respondent No. 1 to execute the sale deed but respondent No. 1 avoided for one reason or another. After lapse of one year respondent No. 1 informed the appellant to take back the consideration and handover the possession for which the appellant did not agree. It was alleged that since then appellant is in occupation of suit land peacefully, uninterruptedly within the knowledge of respondent No. 1, thus, the possession of the appellant is hostile as against respondent No. 1. It was alleged that in the revenue record name of respondent No. 1 is recorded along with LRs of Ramratan and Girdhari who are respondents No. 2 to 6. It was alleged that since the partition has taken place before 35 years, therefore, rest of the respondents are having no right title, interest in the suit property. It was alleged that in the year 2007 when the respondent No. 1 tried to alienate the property, taking advantage of the fact that his name was recorded as Bhumiswami, cause of action accrued to the appellant. It was prayed that suit filed by the appellant be decreed and decree of declaration be passed in favour of appellant to the effect that appellant is Bhumiswami of the suit land on the basis of hostile title and the rights of respondent No. 1 has extinguished and also the appellant is entitled to get his name mutated in the revenue record. Injunction was also prayed to the effect that respondent No. 1 be restrained not to interfere into the possession of the appellant. ( 3. ) THE suit was contested by the respondent No. 1 by filing written statement, wherein plaint allegations were denied. It was denied that respondent No. 1 was ever entered into an agreement and received consideration. It was denied that appellant was in occupation. ( 3. ) THE suit was contested by the respondent No. 1 by filing written statement, wherein plaint allegations were denied. It was denied that respondent No. 1 was ever entered into an agreement and received consideration. It was denied that appellant was in occupation. It was also denied that name of respondent No. 1 and his brothers is recorded as Bhumiswami illegally but in fact on spot the land is separate. It is submitted that respondent No. 1 has initiated the proceedings before the revenue authorities for mutation of his name separately. It was alleged that respondent No. 1 is suffering from Paralysis since last one year. It was alleged that respondent No. 1 is having right title and interest in the suit property. It was prayed that suit be dismissed. In the counter-claim filed by respondent No. 1 it was alleged that appellant is an influential man. Appellant is trying to encroach over the land. It was alleged that since respondent No. 1 is suffering with Paralysis and is not in a position to reach to the land, therefore, appellant is trying to encroach over the land. It was alleged that in absence of any registered document appellant cannot claim ownership over the suit land. It was prayed that it be declared that respondent No. 1 is owner of the suit property and appellant be restrained not to interfere into the possession of respondent No. 1. This written statement was filed on 30-8-2007 which was amended on 24-12- 2009, wherein it was alleged that during pendency of the suit on 15-8-2007 appellant has taken possession forcibly of the land. It was prayed that decree of possession be passed against the appellant. On the basis of the pleadings of the parties, learned trial Court framed the issues, recorded the evidence and dismissed the suit filed by the appellant and decreed the counter-claim filed by respondent No. 1, against which an appeal was filed by the appellant, which was also dismissed, hence this appeal. ( 4. ) LEARNED counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserve to be set aside. ( 4. ) LEARNED counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserve to be set aside. It is submitted that the appeal filed by the appellant was partly allowed as the learned Appellate Court set aside the findings of the learned trial Court whereby it was held that the respondent No. 1 is continuously in possession of the suit land and it was held that in fact appellant is in occupation of the land. It is submitted that in view of the aforesaid observations made by the learned Appellate Court there was no justification on the part of learned Appellate Court in not granting the decree in favour of appellant. It is submitted that in para-20 of the impugned judgment possession of the appellant has been held by the learned Appellate Court as Bataidar, while it was not the case of respondent No. 1 that appellant is in occupation of the land as Bataidar. It is submitted that on the contrary case of respondent No. 1 was that respondent No. 1 is continuously in occupation of the suit land and by amendment application dated 7-9-2008 pleadings made in the counter-claim was amended alleging that inspite of interim order dated 1-7-2008 appellant has taken possession of the suit land forcibly on 18-2-2008, therefore, respondent No. 1 be put into possession. It is submitted that the findings of the learned Appellate Court that appellant is in occupation of the land as Bataidar is contrary to law as the Court cannot make out a case which is not the case of parties. LEARNED counsel placed reliance on a decision in the matter of Vinod Kumar Arora vs. Smt. Surjit Kaur, AIR 1987 SC 2179 wherein Hon'ble Apex Court held that the pleadings of parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Further reliance is placed on a decision in the matter of Kamtaprasad vs. Damrilal, 1979-11MPWN, Note- 196 wherein appellate Court decreed the suit on a ground which was outside the pleadings, this Court held that the order is bad in law. Further reliance is placed on a decision in the matter of Kamtaprasad vs. Damrilal, 1979-11MPWN, Note- 196 wherein appellate Court decreed the suit on a ground which was outside the pleadings, this Court held that the order is bad in law. Reliance is also placed on a decision in the matter of Balya Balai vs. Bhuribai, 1982 MPWN, Note-170 wherein this Court has held that no amount of evidence can be looked into upon a plea never put forward. LEARNED counsel further submits that two applications were moved by the appellant under Order 41. Rule 27, Civil Procedure Code, which were dated 5-5-2010 and 6-7-2010. It is submitted that since the learned trial Court critisized that appellant has not adduce the witness before whom 'sale consideration was paid, therefore, along with the applications appellant filed the death certificate of the witness Mangilal Bagwala and Mangilal s/o Narayan and also filed his own affidavit, but the applications were not taken into consideration by the learned Appellate Court. LEARNED counsel placed reliance on a decision in the matter of Jatinder Singh vs. Mehar Singh, AIR 2009 SC 354 wherein appellant filing application for adducing additional evidence, Hon'ble Apex Court held that dismissal of appeal without deciding application for additional evidence is improper. Further reliance is placed on a decision in the matter of North Eastern Railway Administration vs. Bhagwan Das, AIR 2008 SC 2139 wherein Hon'ble Apex Court held that High Court dismissing the appeal even without considering application is improper. LEARNED counsel submits that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment passed by the learned Courts below be set aside. Learned counsel for respondent Nos. 1 to 6 submit that the appeal filed by the appellant has no merits and the same be dismissed. It is submitted that ample evidence is on record which goes to show that appellant was not in possession since 1976. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be dismissed. ( 5. ) FROM perusal of the record it is evident that to prove the case appellant has filed the documents Ex.P/1 to Ex.P/8, which relates to revenue record. Apart from this appellant has examined himself as PW/1, Vishnu PW/2, Ghanshyam PW/3 and Girdhari PW/4. While respondent No. 1 has examined himself as DW/1. ( 5. ) FROM perusal of the record it is evident that to prove the case appellant has filed the documents Ex.P/1 to Ex.P/8, which relates to revenue record. Apart from this appellant has examined himself as PW/1, Vishnu PW/2, Ghanshyam PW/3 and Girdhari PW/4. While respondent No. 1 has examined himself as DW/1. ( 6. ) FROM perusal of the record it is evident that during pendency of appeal two applications were filed by the appellant, but none of the applications were taken into consideration by the learned Appellate Court while deciding the appeal. It is settled position of law that the applications filed for additional evidence ought to have been decided by the learned Appellate Court along with the appeal. Since the applications were filed and they were not at all taken into consideration, therefore, judgment passed by the learned Appellate Court vitiates and deserves to be set aside. Apart from this undisputedly appellant is in occupation of the land. It was not the case of respondent No. 1 in the pleadings that appellant was in occupation of the land as Bataidar. On the contrary initially case of respondent No. 1 was that respondent No. 1 is in occupation of the land. After the interim order pleadings were amended and it was admitted by respondent No. 1 that appellant is in occupation of the land. Since it was not the case of respondent No. 1 that appellant is in occupation of the land as Bataidar, therefore, there was no justification on the part of learned Appellate Court in holding that the occupation of the appellant is as Bataidar. Since the case of the appellant was that the appellant is in hostile title, therefore, it was expected from the Court to decide whether the appellant is entitled to protect his possession on the basis of hostile title. ( 7. Since the case of the appellant was that the appellant is in hostile title, therefore, it was expected from the Court to decide whether the appellant is entitled to protect his possession on the basis of hostile title. ( 7. ) IN the matter of State of M. P. vs. Balveer Singh, 2001(2) MPLJ 644 Full Bench of this Court has held that the "right" contemplated under section 57(2) of the M. P. Land Revenue Code, 1959 is a right other than the cultivatory right in respect of the land as defined under section 2(1 )(k) which stands secured in favour of a Bhumiswami, occupancy tenants or a Government lessee as defined under the said Code and this right has to be taken to be confined to the proprietary rights including those rights which vested in the State by operation of law under the enactments in force prior to the coming into effect of the aforesaid Code. There can be no distinction as to the forum with respect to the rights of Bhumiswami acquired after coming into force of the M. P. Land Revenue Code, 1959 and the Bhumiswami rights acquired on the basis of pre-existing rights. The provisions of the Indian Limitation Act will have application only to the extent permissible under section 29 of the said Act and where special period of limitation is prescribed under the provisions of the Land Revenue Code, the same shall prevail over the Limitation Act, 1963 and further the extinguishment of the right under section 27 of the Limitation Act will not automatically result in the accrual of Bhumiswami rights or any superior right on the ground of adverse possession. The views expressed in the earlier decisions of this Court to the extent of inconsistency shall stand disapproved and overruled with prospective effect and consequently excepting the pending cases the adjudication of any dispute which has attained finality shall remain undistributed and shall not be liable to be reopened. ( 8. ) IN the matter of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan, AIR 2009 SC 103 Hon'ble Apex Court has held that a plea of adverse possession is not a pure question of law but a blended one of fact and law. ( 8. ) IN the matter of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan, AIR 2009 SC 103 Hon'ble Apex Court has held that a plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Hon'ble Apex Court further held that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. There is therefore, an urgent need of fresh look regarding the law on adverse possession. The Union of India is recommended to seriously consider and make suitable changes in the law of adverse possession. IN the matter of Mandal Revenue Officer vs. Goundla Venkaiah, (2010)2 SCC 461 Hon'ble Apex Court has held that it is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are public truestees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularised. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers. In the facts and circumstances of the case appeal filed by the appellant is allowed. Substantial questions of law are answered in favour of appellant. Judgment and decree passed by the learned Appellate Court is set aside. Case is remanded to the learned Appellate Court to re-decide the appeal on the basis of pleadings and evidence on record and keeping in view the law laid down by Hon'ble Apex Court in the matter of Balveer Sing, Hemaji Waghaji Jat and Mandal Revenue Officer (supra) about the rights of appellant on the basis of hostile title along with applications filed by appellant. ( 9. ) WITH the aforesaid observations, appeal stands disposed of. Parties are directed to remain present before the learned Appellate Court on 8-8-2011. No order as to costs. Order accordingly.