Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 426 (MP)

Biharilal S/o Bhagchand v. Ramprasad S/o Biram

2012-04-19

PRAKASH SHRIVASTAVA

body2012
Judgment Heard. This second appeal under section 100 of the Civil Procedure Code has been filed by the plaintiff in the suit challenging the judgment dated 10-7-1998 passed by the First Appellate Court by which the First Appeal preferred by the appellants has been dismissed and the judgment of the trial Court has been affirmed. The trial Court by the judgment dated 14-11-1994 had dismissed the C. S. No. 49-A/90 filed by the appellants and decreed the counter-claim filed by the defendants No. 1 and 2 in the suit. Original defendants No. 1 and 2 in suit were Deviram and Beeram who are now dead and whose LRs are respondents in present appeal. 2. The appellants had filed the suit for declaration and injunction stating that the appellant was son-in-law of Bheruji who was the father of defendant No. 2 Beeram. The suit property was given to the father of the appellant 40 years back by Bheruji since then the appellants had continued in its possession. The original defendants No. 1 and 2 had executed the agreement dated 4-9-1980 in favour of the appellants and again an another document dated 31-8-1979 was also executed by the defendants in appellants' favour. He also raised the plea of adverse possession. 3. The suit was opposed by the defendants denying the ownership and possession of the appellants. They also denied the execution of any agreement in favour of the appellants and raised a plea that the appellants had taken forcible possession of the suit land on 20-7-1990. The defendants No. 1 and 2 had also filed the counter-claim for declaration and permanent injunction for the suit land. 4. The trial Court by the judgment dated 14-11-1994 had dismissed the suit decreed the counter-claim finding that Bheruji was the owner of the suit property. The appellants had failed to prove that Bheruji had given the suit property to the father of the appellants. The execution of the agreement dated 4-9-1978 and 31-8-1979 was also not proved. The appellant had raised the plea of the adverse possession but the same was not found proved by the trial Court. On the contrary, the trial Court found the defendants to be the owner of the suit land and found that the appellants had taken forcible possession of the suit land. The appellant had raised the plea of the adverse possession but the same was not found proved by the trial Court. On the contrary, the trial Court found the defendants to be the owner of the suit land and found that the appellants had taken forcible possession of the suit land. The trial Court by decreeing the counter-claim of the defendants directed the appellants to hand over the possession of the suit land to the defendants and restrained the appellants from interfering in the possession of the defendants No. 1 and 2. 5. The First Appellate Court has re-appreciated the entire evidence on record and has found that though the appellants are in possession of the suit property but they have not perfected their title by adverse possession. The First Appellate Court has found that the possession of the appellants was permissive possession and it had become adverse between 31-8-1979 to 1-7-1981. The suit was filed on 9-8-1990, therefore, it is found that the appellants had not completed 12 years period of adverse possession. The defendants No. 1 and 2 are found to be the owner of the property accordingly the appeal has been dismissed. 6. This Court vide Order dated 21-9-1998 had admitted the appeal on the following substantial questions of law :- (i) Whether the counter-claim of the defendants-respondents was barred under Order 9, Rule 9(1) of the Civil Procedure Code ? (ii) Whether the finding of the two Courts below regarding adverse possession is perverse, being contrary to the evidence on record and particularly the admission of the defendants ? 7. The aforesaid questions of law are answered as under :- Question No. (i) :- The counsel for the appellants arguing this question has placed reliance upon Ex. P-6 by which the C.S. No. 18-A/88 filed by the defendant No. 2 Beeram for permanent injunction was dismissed in default. For attracting the provisions of Order 9, Rule 9(1) of the Civil Procedure Code the appellants are required to show that the C. S. No. 18-A/88 was in respect of the same cause of action. He is also required to show that the C. S. No. 18-A/88 was filed in respect of the same property. For attracting the provisions of Order 9, Rule 9(1) of the Civil Procedure Code the appellants are required to show that the C. S. No. 18-A/88 was in respect of the same cause of action. He is also required to show that the C. S. No. 18-A/88 was filed in respect of the same property. Learned counsel for the appellants by referring to the pleadings and evidence on record has not been able to show that C. S. No. 18-A/88 was filed for the same property for which the present counter-claim is filed and cause of action for filing the earlier suit was also the same. Thus, the counter-claim of the defendant cannot be held to barred under Order 9, Rule 9(1) of the Civil Procedure Code. Even otherwise C. S. No. 18-A/88 was filed by the defendant No. 2 Beeram whereas the counter-claim in the present suit has been filed by both the defendants, therefore, on the basis of Ex.P-6 it cannot be held that the provisions of Order 9, Rule 9(1) of the Civil Procedure Code is attracted in respect of the counter-claim of the defendant No. 1 Deviram. 8. The counsel for the appellants has placed reliance upon the judgment of the Supreme Court in the matter of Suraj Rattan Thirani and others vs. Azamabad Tea Co. Ltd. and others, reported in AIR 1965 SC 295 in that judgment also the Supreme Court has laid down that when first suit is dismissed in default, Order 9, Rule 9(1) of the Civil Procedure Code precludes the second suit in respect of the same cause of action. The said judgment is of no help to the appellants since he has failed to demonstrate the cause of action in the two suits, is the same. Counsel for the appellants has also placed reliance upon the judgment of this Court in the matter of Smt. Karuna Chaturvedi and others vs. Smt. Sarojini Agarwal and others, reported in AIR 2010 M. P. 109 but the said judgment is also on no help to him because in that case subsequent suit was held barred on same cause of action whereas in the present case the cause of action in the first suit has not been established by the appellants. The subject-matter property involved in the first suit and the cause of action of first suit is not on record. The subject-matter property involved in the first suit and the cause of action of first suit is not on record. Question No. (ii) :- 9. So far as the question No. 2 is concerned, both the Courts below appreciating the evidence on record have found that though the appellants are in possession of the suit property but the possession of the appellants is permissive possession. The counsel for the appellants has referred to the documents Ex.P-1 and P-2 but from these documents it cannot be held that the possession of the appellants was adverse. On the contrary these documents indicate that the possession of the appellants on the suit property was permissive possession. The lower Appellate Court after appreciating the evidence on record rightly found that even if the plea raised by the appellants is accepted then also at the most it can be held that his possession had become adverse sometime between 31-8-1979 to 1-7-1981. Whereas the suit was filed within a period of 12 years on 9-8-1990. No material from the record has been pointed out to indicate as to on what date the ouster of the lawful owner had taken place or on what date the possession of the appellants had become adverse. The necessary ingredients required to prove adverse possession for 12 years are also not established for statement of the defendants. It is also worth noting and undisputedly Bheruji was the original owner of the suit property and that the defendants No. 1 and 2 Beeram and Deviram had received the suit property from its lawful owner. Thus, the second question of law is also answered against the appellants. 10. The appeal is accordingly dismissed and judgment of the Courts below are affirmed. No costs. Appeal dismissed.