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Madhya Pradesh High Court · body

2013 DIGILAW 716 (MP)

Rama v. Gendi Bai

2013-06-27

S.C.Sharma

body2013
JUDGMENT 1. The present second appeal is arising out of the judgment and decree dated 16.2.99 passed by the Additional District Judge, Sardarpur District Dhar in Civil Appeal No.17-A/97 arising out the judgment and decree dated 30.6.97 passed by the Civil Judge Class-II, Sardarpur in Civil Suit No.58-A/94. 2. The facts of the case reveal that the plaintiff has preferred a civil suit claiming declaration of title and injunction against the defendant with a specific prayer not to dispossess him by use of force. The civil suit was in respect of the land situated at Survey No.58, area 4.180 hectare Tahsil Sardarpur District Dhar. It was pleaded in the civil suit by the plaintiff that by virtue of adverse possession, he is entitled to be declared as title holder and evidence in support of the plaint averments was produced by him. The trial Court after taking into account the evidence produced by the plaintiff as well as evidence produced by the defendants passed the judgment and decree dated 30.6.97 and the trial Court by decreeing the civil suit declared the plaintiff as title holder of the property, however injunction was not granted to him. The defendants being aggrieved by the judgment and decree to the extent that the plaintiff was declared title holder of the property in question preferred a first appeal. It is pertinent to note that the plaintiff has also preferred a cross-objection claiming injunction restraining the defendants from evicting him by use of force. The first appellate Court while deciding the first appeal has set aside the judgment and decree passed by the trial Court and has held that the plaintiff is not the title holder of the property in question as he was held to be in possession of the property only for a period of 6 years, however, the prayer in the cross-objection made by the plaintiff for grant of injunction has also been declined. The present second appeal has been filed by the plaintiff against the judgment and decree dated 16.2.1999 and the contention of the learned sr. The present second appeal has been filed by the plaintiff against the judgment and decree dated 16.2.1999 and the contention of the learned sr. counsel is that even if the plaintiff was not held to be the title holder of the property in question, the prayer for injunction could not have been refused and by no stretch of imagination, the plaintiff can be evicted by use of force and he can only be evicted by following the prescribed procedure under the law. He has placed a reliance upon a judgment of the apex Court in the case of Rame Gowda (dead) By LRS v.. M. Varadappa Naidu (dead) BY LRS and another reported in 2004 (II) MPWN 25 = (2004) 1 SCC 769 and his contention is that even though the plaintiff has failed to prove his title, the relief for grant of injunction could not have been refused to him, once it was held that the plaintiff is in possession of the property in question for the last 6 years and it is open for the defendants to file a civil suit on the basis of their title against the plaintiff and to evict him from the property in question. He has also placed a reliance upon a judgment delivered by the Principal Seat at Jabalpur of this Court in the case of Afjal Mohd. Khan (since deceased) through his L.R.s v. State of M.P., reported in 2004 (I) MPJR 71, wherein a similar view has been taken by this Court and it has been held that a person can be dispossessed by following due course of law. The present second appeal has been admitted on the following substantial questions of law :- “(1) Whether the first appellate Court was justified in holding that the plaintiff for acquisition of title by adverse possession over the land in question should have pleaded and proved who was real owner ? (2) Whether in the facts and circumstances the first appellate Court was justified in not considering the cross-objections only on the ground that the adverse possession of the plaintiff was not proved ?” 3. (2) Whether in the facts and circumstances the first appellate Court was justified in not considering the cross-objections only on the ground that the adverse possession of the plaintiff was not proved ?” 3. This Court after going through the evidence on record as well as the judgment delivered by the apex Court, is of the considered opinion that the first appellate Court was certainly not at all justified in not considering the cross-objection only on the ground that the adverse possession of the plaintiff was not proved. The apex Court in the case of Rame Gowda in paragraphs 11, 12 and 13 has held as under :- “11. In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property. 12. The learned counsel for the appellant relied on the Division Bench decision in Sri Dasnam Naga Sanyasi v. Allahabad Development Authority and a Single Judge decision in Kallappa Rama Londa v. Shivappa Nagappa Aparaj to submit that in the absence of declaration of title having been sought for, the suit filed by the plaintiff-respondent was not maintainable, and should have been dismissed solely on this ground. We cannot agree. Sri Dasnam Naga Sanyasi and Anr.’s case relates to the stage of grant of temporary injunction wherein, in the facts and circumstances of that case, the Division Bench of the High Court upheld the decision of the Court below declining the discretionary relief of ad-interim injunction to the plaintiff on the ground that failure to claim declaration of title in the facts of that case spoke against the conduct of the plaintiff and was considered to be ‘unusual’. In Kallappa Rama Londa’s case, the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of title, and on dealing with several decided cases the learned Judge has agreed with the proposition that where the suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept open without denying the plaintiff’s claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to the suit. That is the correct position of law. In Fakirbhai Bhagwandas and Anr. v. Maganlal Haribhai and Anr. a Division Bench spoke through Bhagwati, J. (as his Lordship then was), and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties. 13. No fault can be found with the judgment and decree appealed against. The appeal is devoid of any merit and is dismissed.” 4. Keeping in view the aforesaid judgment delivered by the apex Court, the findings arrived at by the first appellate Court to the extent of injunction has not been granted to the plaintiff are perverse findings. 5. This Court in the case of Smt. Urmila and Ors. v. Bhoriram reported in 2004 RN 189 = 2004 (II) MPJR 82 has held that a person, who is found in possession of the property in question, is entitled for decree of injunction even though a suit for declaration of his title is dismissed. 6. 5. This Court in the case of Smt. Urmila and Ors. v. Bhoriram reported in 2004 RN 189 = 2004 (II) MPJR 82 has held that a person, who is found in possession of the property in question, is entitled for decree of injunction even though a suit for declaration of his title is dismissed. 6. Keeping in view the judgments of the apex Court as well as of this Court, the defendants/respondents are restrained from interfering with the peaceful possession of the plaintiff, however it is made clear that it is still open for the defendants/respondents to file a suit based upon their title against the plaintiff/appellant and to evict the later in accordance with law from the property in question. 7. Resultantly the judgment and decree passed by the first appellate Court deserves to be modified and a modified decree be drawn accordingly as aforesaid. 8. In view of the aforesaid, the present second appeal stands disposed of.