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2014 DIGILAW 32 (CHH)

Dularam v. Jashpal Singh

2014-01-29

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Heard, on admission. For sake of convenience, the parties shall be referred to according to their array in the suit. This is plaintiff's Second Appeal against the judgment and decree dated 4.10.2010 passed by 4th Additional District Judge, (FTC), Raigarh in Civil Appeal No. 15-A/2007, affirming the judgment and decree dated 21.03.2005 passed by 2nd Civil. Judge, Class II, Raigarh in Civil. Suit No. 57-A/2005, dismissing the plaintiff's suit. 2. Facts necessary for disposal of this appeal are as under:-- (2.1). Plaintiff-Dularam filed a civil suit for declaration of his title by way of adverse possession stating inter alia the suit land bearing Nazul Sheet No. 72, Plot No. 51/1, area 1103 sq. ft., which was earlier owned by defendant No. 2-Ramsumer Mishra, for which he has entered into agreement to sell dated 20.07.1979 after giving Rs.5,000/- as advance and agreement to sell was executed accordingly but since he is in possession over the suit property for the last 13 years, he has perfected his title by way of adverse possession. (2.2). After full-fledged trial, the trial Court by its judgment & decree date 21.03.2005, has dismissed the plaintiff's suit finding, inter alia, the original owner Ram Sumer Mishra, defendant therein in the suit has sold the suit property to defendant No. 1 Jashpal Singh on 4.10.1974 by registered sale deed; it further recorded a finding that since plaintiff Dularam was the tenant of defendant No. 2 - Ram Sumer Mishra after purchase by Jashpal Singh became the landlord and his statutory tenancy between plaintiff & defendant No. 1 has been established and, thereby, the plaintiff has not perfected his title by way of adverse possession. 3. Feeling aggrieved & dissatisfied with the judgment & decree passed by the trial Court, plaintiff filed first appeal before the first appellate Court. 4. The First appellate Court by its impugned judgment & decree dated 04.10.2010 affirmed the finding recorded by the trial Court holding that the original owner Ramsumer Mishra has sold the suit property to defendant No. 1 - Jashpal Singh and there is no agreement to sell in plaintiff's favour; plea of adverse possession has not been established by the plaintiff. The First Appellate Court has further recorded a finding that plaintiff claiming possession over the suit property pursuant to the agreement to sell (Ex. The First Appellate Court has further recorded a finding that plaintiff claiming possession over the suit property pursuant to the agreement to sell (Ex. P-1), possession cannot be said to be adverse possession and dismissed the appeal. 5. Mr. R.K. Pali, learned counsel appearing for the appellant (plaintiff) would submit that both the courts below have concurrently fallen into error in holding that possession of plaintiff pursuant to the agreement to sell is not adverse possession. 6. I have heard learned counsel appearing for the appellants and perused the records of both the courts below. 7. Both the courts below have concurrently recorded a finding that defendant No. 2 has sold the suit property to defendant No. 1-Jashpal Singh and as a result of the said sale, the plaintiff has become the tenant of defendant No. 1. 8. It is well settled that a person claiming to be in possession under the agreement to sell, his possession would be permissive possession and he cannot be permitted to contend that his possession is adverse and he has perfected his title by way of adverse possession. 9. The Supreme Court in case of Achal Reddi Vs. Ramkrishna Reddiar and others AIR 1990 SC 553 has held as under:-- There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate Court as well as the second appellate Court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent finding that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10-7-1946 and 17-7-1947 is adverse or only permissive. A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10-7-1946 and 17-7-1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledge title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In a latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own. right and adversely against the transferor, Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a character, it cannot be adverse. 10. Further, the Supreme Court in case of Mohan Lal (deceased) through his LRs. Kachru and others Vs. Mirza Abdul Gaffar and another (1996) 1 SCC 639 has held as under:-- The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Further, the Supreme Court in case of Mohan Lal (deceased) through his LRs. Kachru and others Vs. Mirza Abdul Gaffar and another (1996) 1 SCC 639 has held as under:-- The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing, signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise. 11. In view of the above referred judgment of the Supreme Court, in my opinion, plea of adverse possession is not available on the appellant. Thus the said finding recorded by both the courts below are finding of fact based on material available on record and I do not find it either perverse or contrary to record and no question of law much less substantial question of law is involved in this appeal. 12. Recently, the Supreme Court in the case of Vishwanath Agrawal, s/o. Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:-- 36. In Major Singh Vs. 12. Recently, the Supreme Court in the case of Vishwanath Agrawal, s/o. Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:-- 36. In Major Singh Vs. Rattan Singh (1997) 3 SCC 546 : AIR 1997 SC 1906 it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao (1999) 3 SCC 573 it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. Karnataka Electricity Board (2007) 14 SCC 138 : AIR 2008 SC 956 . Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to costs.