Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 215 (MP)

Dharmveer v. Hariom Bansal

2019-03-08

RAJEEV KUMAR SHRIVASTAVA

body2019
ORDER 1. The challenge in the revision application is to the order dated 6.2.2018 passed in Civil Suit No. 145-A/2017 by the Third Civil Judge, Class-I, Morena, whereby the application under Order 7 rule 11 of CPC filed by the petitioners has been rejected. 2. The facts leading to the filing of the present revision application are that the respondent/plaintiff filed a civil suit pleading that he is having possession on the plot owned by the defendant since April 1989. The plaintiff instituted a civil suit against Trilokinath Gupta, Ramesh Chandra Gangil and Anil Kumar Gangil for injunction which was initially dismissed. However, on appeal decree of injunction has been granted to plaintiff. It is further submitted that in the plaint it is pleaded that on 15.7.2017 the defendant came to the property of plaintiff and he informed the plaintiff that the property in question has been purchased by the defendant. On making inquiry in the subregistrar office, the plaintiff came to know that the disputed property has been purchased by defendant vide registered sale deed dated 8.10.2009. It is pleaded by the plaintiff that no actual physical possession was handed over and, therefore, the plaintiff is in possession of the property. On the basis of these pleadings the plaintiff has prayed that the may be declared as possession holder and the sale deed may be declared as null and void alongwith the relief of injunction. Thereafter the petitioners/defendants filed an application under Order 7 rule 11 of CPC before the trial Court for rejecting the plaint as barred by law since the relief of plaintiff is based on pleading regarding declaration on the basis of possession. The trial Court without appreciating the correct provision of law and overlooking the real effect of pleading, rejected the application filed by the present petitioners. The dismissal of the application under Order 7 rule 11 CPC has been assailed in the present revision application. 3. Learned counsel for the petitioners has contended that the impugned order is unsustainable in the eyes of law and has been passed in complete ignorance of the judgment passed by the Hon'ble Supreme Court in the case of Gurudwara Sahib v. Gram Panchayat Village Sirthala, reported in 2014 (I) MPWN 64 = (2014) 1 SCC 669 , in which it has been unequivocally held that the plaintiff cannot be permitted to take the plea of adverse possession. Further, it was contended that in the entire plaint the respondent has not disclose source of title and source of possession. He is trying to stop the real owner from entering into property. Admittedly, the respondent is not fighting for title, therefore, he cannot fight for possession. Thus, a prayer for setting aside the impugned order has been made by the learned counsel for the petitioners. In support of his contentions, learned counsel for the petitioners placed reliance of judgments in the cases of Arivandandam v. V. Satyapal and another, reported in (1977) 4 SCC 467 ; Karim Bhai v. State of Maharashtra and ors., reported in I.L.R. [2009] M.P. 3167; and, Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (Dead) through LRS. reported in (2012) 5 SCC 370 . 4. Learned counsel for the respondent submitted that each case has different facts. The respondent is in possession of the property in question. petitioners are trying to dispossess the respondent forcibly. If the petitioners want to dispossess the respondent then they should file a suit for possession in trial Court as there is a decree of injunction in favour of respondent to protect his possession. Hence, prayer for dismissal of revision. 5. I have considered the contentions of the learned counsel for the parties and have carefully perused the judgment referred. 6. In Gurudwara Saheb (supra), the Hon'ble apex Court has held as under : "8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." 7. This Court is duly bound by the precedent laid down by the Hon'ble Supreme Court and by this Court in earlier judgments. The Co-ordinate Bench of this Court in the case of Ramdayal and others v. Sarpanch Gram Panchayat Dhadiya and another, SA No. 1312/2009 and Munshi Khan v. State of M.P. and others, SA No. 97/2006 has already taken a view which is in consonance with the Gurudwara Saheb (supra) judgment. The Co-ordinate Bench of this Court in the case of Ramdayal and others v. Sarpanch Gram Panchayat Dhadiya and another, SA No. 1312/2009 and Munshi Khan v. State of M.P. and others, SA No. 97/2006 has already taken a view which is in consonance with the Gurudwara Saheb (supra) judgment. Therefore, this Court is bound by Judicial discipline to follow the view already expressed and endorsed by the co-ordinate Bench of this Court. 8. In the context of the discussion made herein-above, if the facts of this case are examined, the only plausible conclusion which could be drawn is that, the plaintiff has solely pleaded the ground of adverse possession for seeking declaration of title, which is impermissible as discussed in the preceding paragraphs. Consequently, being left with no option, the revision application is allowed and the order dated 6.2.2018 passed in civil suit No. 145-A/2017 is set aside and the plaint is rejected barred by time. Parties to bear their own cost.