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2013 DIGILAW 239 (CHH)

MANGLU MOOL SINGH v. KUNJLAL

2013-08-22

N.K.Agarwal

body2013
JUDGMENT 1. This is defendant's Second Appeal filed under Section 100 of CPC against the judgment and decree dated 30.09.1999 passed by the 8th Additional District Judge, Bilaspur, in Civil Appeal No. 62-A/99 reversing the judgment and decree dated 07.02.1996 passed by the Civil Judge, Class II, Katghora, in Civil Suit No. 45-A/92. 2. Brief facts necessary for disposal of this appeal are that: plaintiff/Kunjlal filed a suit for declaration of his title and mandatory injunction restraining the defendant Nos. 1 to 9 from interfering with his possession. It was case of the plaintiff that he purchased the suit land bearing Khasra Nos. 705/3, 706/3, 708/1, 706/2, 708/2 and 706, total area 6.42 Acres, situated in Village, Malda, Distt. Bilaspur, from Maharaja Singh, the grand father of defendant Nos. 1 to 6 late Gangadhar Singh i.e. father of defendant Nos. 1 to 6 and husband of defendant No.7, on 01.07.1955, 17.09.1955 and December, 1955 for Rs.1000/-, 300/- and 200/-. Two transactions i.e. 01.07.1955 & 17.09.1955 were done in writing on stamp paper whereas the transaction which took place in December, 1955 was oral. It was further submitted that plaintiff was in possession of the suit land since 1955; sale deeds were promised to be executed but were no executed, and therefore, plaintiff filed instant suit after serving a notice to the defendants and after publishing advertisement in the news paper. In the alternative, title was also claimed by way of adverse possession pursuant to his alleged peaceful uninterrupted possession since 1955. 3. The claim was denied by the appellants/defendants inter alia on the ground that no sale deed was ever executed in his favour at any time whatsoever nor anything was given to him in writing. The defendants further denied possession of the plaintiff over the suit land. 4. The trial court found that in the absence of registered sale deed and production of any documentary evidence to that effect, the plaintiff failed to establish that he had purchased the suit land. It was further found that no continues possession for the last 12 years over the suit land was established, and accordingly dismissed the suit. 5. The plaintiff preferred first appeal there-against. It was further found that no continues possession for the last 12 years over the suit land was established, and accordingly dismissed the suit. 5. The plaintiff preferred first appeal there-against. The first appellate court also found that plaintiff failed to establish purchase of suit land in the absence of production of any document, however, based on oral evidence, held: plaintiff had perfected his title over the suit land by way of adverse possession, and accordingly allowed the appeal and decreed the suit. Hence this Second Appeal. 6. This court admitted the appeal on 18.04.2013 on the following substantial question of law : "Whether findings of lower appellate court relating to nature of possession based on the unregistered document of sale that it was adverse possession is justified?" 7. I have heard learned counsel appearing for the parties and perused the order impugned including records of both the courts below. 8. Both the courts below have concurrently held that plaintiff failed to establish his title over the suit land based on its purchase vide alleged deeds dated 01.07.1955 & 17.09.1955 and also by oral transaction allegedly took place in the month of December, 1955, however, the court below, based on appreciation of oral evidence came to a conclusion that plaintiff is in continuous and uninterrupted possession for a period of more than 12 years and had perfected his title by way of adverse possession, decreed the suit. 9. The Supreme Court in case of State of West Bengal Vs. The Dalhousie Institute Society AIR 1970 SC 1778 , wherein, in a case where admittedly the grantee was in open, continuous and uninterrupted possession and enjoyment of site for over 60 years, grantee was treated as owner not only by Municipal Corporation but also by Government, the Supreme Court has held: grantee acquired title by way of adverse possession as he was in possession of the property on the basis of invalid grant. The High Court of Madhya Pradesh in case of Bala S/o Dola Vs. Heeralal S/o Urajan & others 1988 MPLJ 781 has also re-iterated the same view. The High Court of Madhya Pradesh in case of Bala S/o Dola Vs. Heeralal S/o Urajan & others 1988 MPLJ 781 has also re-iterated the same view. The said ratio of law laid down by the Supreme Court and High Court of Madhya Pradesh in the cases referred hereinabove, cited and relied upon by the plaintiff, are of no help to him as in the instant case neither such invalid grant was exhibited and proved nor admitted by the defendants. 10. Moreover, the plaintiff has claimed his title based on unregistered agreement of sale and not the sale deed as is evident from plaint averment para 5 and the legal notice (Ex. P/2) filed and proved by the plaintiff himself. From bare reading of notice dated 15.11.1991 (Ex. P/2) filed and proved by the plaintiff, it would be clear as crystal that till then, plaintiff did not claim his title by way of adverse possession and his only intention was to file a suit for specific performance of contract as he himself has written in para 4 of his notice (Ex. P/2) that if the defendants will not execute the sale deed, then he will get it registered by filing a civil suit. Admittedly, no such suit for specific performance has been filed by the plaintiff. 11. The legal position regarding claim of title by prescription is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Please See para 17-L.N Aswathama and another Vs. P. Prakash 2009 (13) SCC 229 ). 12. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Please See para 17-L.N Aswathama and another Vs. P. Prakash 2009 (13) SCC 229 ). 12. Reverting to the facts of the present case, by issuing notice (Ex.P/2) to the defendants, plaintiff in-fact had admitted his title over the suit land because he demanded execution of sale agreement by the defendants, therefore, till then, he did not claim his title over the suit land pursuant to his possession. Admittedly notice was issued by the plaintiff to the effect that if the defendants will not execute the sale agreement, then he will get it registered through court, but he did not file any such suit for specific performance of contract. The plaintiff did not claim his title by way of adverse possession till date of issuance of notice i.e. 15.11.1991, and therefore, it cannot be said that he was in adverse possession for 12 years or more before filing of the suit. 13. Under Section 54 of the Transfer of Property Act, 1982, a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. 14. Further, Section 53-A of the Transfer of Property Act is also inapplicable if the contract for a sale is not in writing, therefore, the plaintiff was also not entitled to claim his possession based on the doctrine of part performance. 15. In the light of above, the plaintiff has utterly failed to prove that he perfected his title over the suit land based on adverse possession, and therefore, in my considered opinion, the possession of plaintiff over the suit land cannot be said to be adverse to the appellants/defendants, therefore, the decree passed by the appellate court, based on its finding that plaintiff acquired title over the suit land by way of adverse possession is not sustainable in law, deserves to be and is hereby set aside. 16. The substantial question of law formulated, therefore, is answered accordingly in appellant's favour. 17. The appeal is allowed. Decree passed by the appellate court is set aside and the decree passed by the trial court is restored. 18. 16. The substantial question of law formulated, therefore, is answered accordingly in appellant's favour. 17. The appeal is allowed. Decree passed by the appellate court is set aside and the decree passed by the trial court is restored. 18. Decree be drawn accordingly. Appeal Allowed.