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Madhya Pradesh High Court · body

2016 DIGILAW 398 (MP)

Lala Ram v. Jagdish

2016-05-11

ANAND PATHAK

body2016
ORDER 1. Heard on admission. 2. The present appeal has been preferred at the instance of plaintiffs, aggrieved by the judgment and decree dated 10.7.2007 passed by learned First Additional District Judge, Ashoknagar in Civil Appeal No.6/2007 confirming the judgment and decree dated 28.8.2006 passed by learned Civil Judge Class -I, Ashoknagar in Civil Suit No.96-A/2004. Appellants/plaintiffs have suffered both the Courts below. 3. Brief facts leading to the case are that the appellants/plaintiffs filed a suit for declaration and permanent injunction against the defendant in respect of the land bearing Survey No.419 area 1.254, situated in village Haider Tahsil Isagarh District Ashoknagar. According to the plaint allegations, the said land was given by father of the defendant to the plaintiffs and since last 22 years the plaintiffs are in possession of the land and taking fruits whereof. Further allegation of the plaintiffs is that they are in possession of the suit land within the knowledge of Deewan Singh and the plaintiffs' possession is uninterrupted for last 22 years and mutation proceedings had also started before Tahsil Court, Ashoknagar wherein the order was passed after recording the statement of Deewan Singh on 5.3.1983. Therefore, the plaintiffs sought decree of declaration on the basis of adverse possession and injunction against the defendant. 4. The defendant has filed the written statement and contested the claim of the plaintiffs by denying the facts as pleaded in the plaint. The factum of possession was specifically denied by the defendant. According, to defendant, he is in possession of the suit property and at the time of institution of suit, the plaintiffs were not in possession of the suit property. Special submissions were also made in the written-statement. 5. After framing of the issues, evidence was led by both the parties. 6. The trial Court after considering the rival submissions has passed the judgment and decree dismissing the suit of plaintiffs as not proved. From paras 8 to 15, the trial Court has dealt with all the necessary contours of controversy and in para 15 of the judgment categorically held that at the time of institution of suit the plaintiffs were not in possession of the suit property whereas defendant was in possession. At the time of filing of suit, plaintiffs were not in possession, therefore, no relief of declaration and possession can be given to them. At the time of filing of suit, plaintiffs were not in possession, therefore, no relief of declaration and possession can be given to them. Even otherwise, the plea of adverse possession was not found to be available to the plaintiffs. 7. After being suffered at the trial Court, the appellants preferred the first appeal which suffered with the same fate. The first appellate Court in para 14 has categorically upheld the finding given by learned trial Court. Thus, by the judgment and decree dated 10.7.2007, the first appeal has been dismissed. 8. Learned counsel for the appellants by way of filing of instant appeal under section 100 of CPC is trying to make dent over the judgment and decree passed by the Courts below. 9. Both the Courts below have given concurrent findings of fact on the point of possession. Both the Courts below have found that defendant is in possession of the suit property and the claim of plaintiffs was disproved thoroughly. 10. The Hon'ble apex Court in the matter of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another [ (2014)1 SCC 669 ], has categorically held that the plea of adverse possession is not available with the plaintiffs. No declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield not as a sword. Therefore, the plaintiffs cannot take shelter of plea of adverse possession by filing the suit but certainly the claim of ownership by adverse possession can be made by way of defence when arrayed as defendant in proceeding against him. Thus, the declaration of ownership of the land on the basis of adverse possession cannot be sought by the plaintiffs/adverse possessee (squatter in short), it can be used as a shield to defend possession by a squatter as defendant. 11. Here, in the present case, the plaintiffs have sought the relief of declaration of ownership of land on the basis of adverse possession, which cannot be granted to them Similarly at the time of filing of the suit, the plaintiffs through evidence could not prove his possession over the suit property. Even otherwise, the plaintiffs cannot get the relief of declaration of ownership by adverse possession because at that time he was out of possession from the suit property. 12. Even otherwise, the plaintiffs cannot get the relief of declaration of ownership by adverse possession because at that time he was out of possession from the suit property. 12. Concurrent findings of fact and settled legal position in respect of adverse possession, go against the plaintiffs. The scope of this Court under section 100 of CPC cannot go into probing of facts. No question of law much less the substantial question of law exists in the present case. 13. Thus, being devoid of merit, the appeal fails and is hereby dismissed.