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2012 DIGILAW 691 (MP)

Kanahiya v. State of M. P.

2012-07-10

ALOK ARADHE

body2012
JUDGMENT 1. This appeal has been preferred by the defendants. This Court vide order dated 16.2.2000 while admitting the appeal had formulated the following substantial question of law:- “Whether in view of the admission made by the respondent that the appellants did not allow him to take possession of the suit land despite the compromise filed between the parties in the revenue court, the claim of the appellants that the suit is barred by limitation on account of adverse possession is sustainable in the eyes of law?” 2. In order to answer the aforesaid substantial question of law, reference to few facts is necessary. The respondent No.2 instituted a suit on or about 21.4.1975 in respect of land admeasuring 20.81 acres on the ground that his father Ram Khilawan was the real brother of Mangal. Ram Khilawan died when the plaintiff was about 5-6 months old. The suit lands alongwith other lands were recorded in the name of Mangal who was the 'Karta' of the family. It was further pleaded that Mangal died some time in the year 1953-54. Thereafter, the name of his widow, namely, defendant No.1 as well as the name of plaintiff was mutated in the revenue records. It was averred that an order of mutation in favour of the plaintiff in respect of his half share in the suit lands was passed some time in the year 1961. However, the defendant No.1 in collusion with other defendants got their names mutated in the revenue records and sold the part of the suit land to defendants No.5 & 6 by registered sale deeds dated 15.5.1974 and 16.5.1974. By way of amendment the plaintiff also pleaded that he has been dispossessed from the suit lands. The plaintiff accordingly sought decree for declaration of title as well as for prohibitory injunction and possession. 3. The defendants filed written statement and contested the claim of the plaintiffs on the ground that plaintiffs' father and Mangal were not real brothers. It was pleaded that one Moolai had three sons, namely, Muswa, Pandohi and Sunder. Late Mangal was the son of Pandohi and Ramkhilawan was the son of Sunder. It was further pleaded that Mangal and Ram Khilawan were neither the real brothers nor the members of joint family. It was pleaded that one Moolai had three sons, namely, Muswa, Pandohi and Sunder. Late Mangal was the son of Pandohi and Ramkhilawan was the son of Sunder. It was further pleaded that Mangal and Ram Khilawan were neither the real brothers nor the members of joint family. It was also pleaded by the defendants that they were in cultivating possession of the suit lands for past more than 35 years and have perfected their title by adverse possession. 4. The trial Court on the basis of pleadings of parties framed issues. The trial Court framed Issues No.13 & 18 with regard to acquisition of title by adverse possession and limitation respectively. The trial Court while dealing with the aforesaid issues recorded a finding that the plaintiff's witnesses, namely, Gulab Khan (PW.2) and Suddhulal (PW.3) have admitted in their statements that defendants are in possession of the suit lands for past about 30-35 years. The trial Court also took into account the statement of plaintiff (PW.1) in paragraph 10 that though his possession is recorded in the revenue records, yet defendants are in cultivating possession of the suit lands. Accordingly, the trial Court recorded a finding that the suit filed by the plaintiff is barred by limitation and defendants have acquired title by adverse possession. The lower appellate Court vide impugned judgment and decree reversed the decree passed by the trial Court. The lower appellate Court held that Ram Khilawan and Mangal were real brothers. The widow of Mangal, namely, Ms.Motaraniya had sold certain lands and such sales which were made during the minority of the plaintiff were illegal. It was further held by the lower appellate Court that the plaintiff in his statement stated that some defendants have encroached the lands in the year 1974 and the suit has been filed in 1975 and the entries in the revenue records made in favour of the defendant No.1 are illegal. The lower appellate Court reversed the findings with regard to acquisition of title by the defendants on the ground that there is no pleading in the written statement with regard to acquisition of title by adverse possession. The lower appellate Court also found that the cause of action for filing of the suit arose in the year 1974 and the suit was filed in 1975 and, therefore, the same is within limitation. 5. The lower appellate Court also found that the cause of action for filing of the suit arose in the year 1974 and the suit was filed in 1975 and, therefore, the same is within limitation. 5. Learned counsel for the appellants submitted that the lower appellate Court grossly erred in reversing the well reasoned judgment and decree of the trial Court. It was further submitted that the suit filed by the plaintiff was barred by limitation and the finding recorded by the lower appellate Court that there is no pleading with regard to adverse possession is factually incorrect. In support of his submission learned counsel has invited the attention of this Court to statement of the plaintiff who has been examined as PW.1 as well as the averments contained in paragraphs 9 & 12 of the written statement. On the other hand, learned counsel for the respondent No.2 submitted that the finding recorded by the lower appellate Court are based on appreciation of evidence on record which does not call for any interference as the same cannot be said to be perverse. 6. I have considered the respective submissions made by learned counsel for the parties and have perused the record. In paragraph 1 of the statement, the plaintiff (PW.1) has stated that partition took place between him and defendant No.1 after the death of Mangal and since then he is possession of the suit land. In paragraph 9 of his statement the plaintiff has stated that partition was not reduced in writing and that he is unable to furnish the particulars of the land allotted to him in partition. In paragraph 9 of his statement the plaintiff has further admitted that after the death of Mangal, his widow-defendant No.1 was in cultivating possession of the suit lands and despite demands being made, the defendants did not handover the possession. In paragraph 10 of the statement, the plaintiff has, in unequivocal terms, stated that though his name is recorded in the revenue records, yet defendants are in cultivating possession. The plaintiff's witness-Gulab Khan (PW.2) has pleaded ignorance about the partition which allegedly took place between the plaintiff and defendant No.1. In paragraph 10 of the statement, the plaintiff has, in unequivocal terms, stated that though his name is recorded in the revenue records, yet defendants are in cultivating possession. The plaintiff's witness-Gulab Khan (PW.2) has pleaded ignorance about the partition which allegedly took place between the plaintiff and defendant No.1. In paragraph 3 of his statement it is stated that Late Mangal during his lifetime had handed over possession of the suit lands to the defendants No.2, 3 & 4 and since then they are in cultivating possession of the lands in question. Similarly, the PW.3, namely, Suddhulal in paragraph 3 of his statement has stated that since lifetime of Mangal the defendants No.2, 3 & 4 are in cultivating possession. In paragraph 5 of his statement he stated that plaintiff was never in cultivating possession of the suit lands. However, the aforesaid evidence has been adduced on behalf of the appellants which has material bearing on the controversy involved in the case has been ignored by the lower appellate Court. In ignorance of the averments contained in paragraphs 9 & 10 of the written statement the lower appellate Court has recorded a finding that there is no pleading with regard to acquisition of title by adverse possession. From paragraph 5 of the plaint it is apparent that Mangal had died some time in the year 1953-54. As per the version of the plaintiff's witnesses, namely, Gulab Khan (PW.2) and Suddhulal (PW.3) the defendants were in cultivating possession of the suit lands during the lifetime of Late Mangal. Thus, the defendants, in any case, are in cultivating possession of the suit lands to the knowledge of the plaintiff since 1953. The suit has been filed on 21.4.1975. In paragraph 10 of his statement, which was recorded on 16.12.1983 the plaintiff is described to be 38 years of age. The plaintiff has stated that he was minor at the time of his father's death. Thus, the plaintiff has born some time in the year 1945. The plaintiff has attained majority in the year 1963. The plaintiff ought to have filed the suit in the year 1966. However, the plaintiff filed the suit on 21.4.1975, which is apparently, beyond the period of limitation. Thus, the plaintiff has born some time in the year 1945. The plaintiff has attained majority in the year 1963. The plaintiff ought to have filed the suit in the year 1966. However, the plaintiff filed the suit on 21.4.1975, which is apparently, beyond the period of limitation. In view of paragraphs 9 & 10 of the written statement and the evidence on record it is graphically clear that the defendants are in possession of the suit lands for more than 12 years to the knowledge of the plaintiff and their possession is adverse to the knowledge of the plaintiff. Therefore, the defendants have acquired title by adverse possession. 7. For the aforementioned reasons the substantial question of law framed by this Court is answered in the affirmative and in favour of the appellants. In the result, the judgment and decree passed by the lower appellate court is set aside and that of the trial Court is restored. 8. The appeal succeeds and is hereby allowed. However, in the facts of the case, there shall be no order as to costs.