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Madhya Pradesh High Court · body

2020 DIGILAW 305 (MP)

Smt. Manakbai v. Shri Amritlal And Another

2020-02-26

PRAKASH SHRIVASTAVA

body2020
JUDGMENT 1. This appeal u/S.96 of the CPC is at the instance of the plaintiff in the suit challenging the judgment dated 29/1/1998 passed in CS No.25-A/1984 dismissing the suit. The cross objection has been filed by the defendant No.1 in the suit challenging the findings recorded by the trial court. 2. The undisputed facts are that Chandmal and Kanakmal were real brothers. The plaintiff Manakbai w/o. Babulal is the daughter of Chandmal and the original defendant No.1 Manakbai is the wife of Kanakmal whereas defendant No.2 and 3 namely Sirubai and Kantabai were the daughters of Kanakmal. It is also not in dispute that on the death of Chandmal his wife Kanchanbai became his sole legal heir and since Chandmal had no issue, the plaintiff even after her marriage was residing with Kanchanbai. 3. For convenience the parties are referred in the judgment as per their original position in the suit as Plaintiff and Defendants. 4. The plaintiff had filed the suit with the plea that the suit property was ancestral property of Chandmal and Kanakmal and family settlement between them was arrived at on 19/7/1946 in which the suit shop and other properties were received by Chandmal and other properties were received by Kanakmal. After the settlement it was recorded in the khata of Chandmal and Kanakmal, signed by all the concerned parties. Chandmal had died in 1952, therefore, the suit shop was inherited by his wife Kanchanbai. Kanchanbai had executed the will dated 18/10/1986 in respect of the suit shop and other properties in favour of the plaintiff. Kanchanbai had died in 1973 and thereafter the plaintiff had became the sole owner of the suit shop. Further plea was taken that after the death of the plaintiffs father Chandmal, since Kanchanbai had become widow, therefore, Kanakmal was given the right to maintain the account and Kanchanbai had given the suit shop on rent to Moolchand. Since the dispute had arisen between the parties, therefore, the present suit was filed. 5. Deceased defendant No.1 Manakbai widow of Kanakmal had filed the written statement denying the plaint averments and taking the plea that the suit shop was of the ownership in possession of Kanakmal, the husband of defendant No.1. Kanakmal had died on 24/7/1995, therefore, the defendant No.1 had become its owner and that the plaintiff cannot set up the title without getting probate of the will of Kanchanbai. Kanakmal had died on 24/7/1995, therefore, the defendant No.1 had become its owner and that the plaintiff cannot set up the title without getting probate of the will of Kanchanbai. Further plea was raised that the suit shop was never in possession of the plaintiff and it was let out by Kanakmal to Moolchand and that Kanakmal as owner of the suit shop was receiving the rent. A plea was also raised that since the defendants are in continuous possession of the suit property without any hindrance, therefore, they have perfected their title by adverse possession. 6. The defendant No.2 and 3 had remained ex-parte before the trial court. 7. The trial court by permitting the parties to lead evidence and after examining the same had found that the suit property was ancestral property in the hands of Chandmal and Kanakmal. It was further found that a family settlement between Chandmal and Kanakmal had taken place on 19/7/1946 and in that family settlement, the suit shop had fallen in the share of Chandmal and he had received its possession. It was also found that the family settlement was recorded in the ' Chopda' (account) of Surajmal and Chandmal. It has also been found that after the death of Chandmal in 1951 his wife Kanchanbai became the owner of the suit shop, but her possession on the suit shop was not established as the suit shop was found to be in possession of the tenants. The trial court further found that Kanchanbai had executed the registered will in favour of the plaintiff and after death of Kanchanbai, plaintiff became the owner of the suit shop, but she was not found to be in possession as the possession was found with the tenant. The defendants could not prove their plea of adverse possession. The trial court, though, found the plaintiff/appellant to be the title holder of the suit land, but it has dismissed the suit on the ground that no relief of possession was claimed. 8. Counter claim has been filed by the defendant No.1 challenging the aforesaid findings of the trial court. 9. The trial court, though, found the plaintiff/appellant to be the title holder of the suit land, but it has dismissed the suit on the ground that no relief of possession was claimed. 8. Counter claim has been filed by the defendant No.1 challenging the aforesaid findings of the trial court. 9. Learned counsel for appellant submits that the appellant was not required to claim the relief of possession because defendants were not in possession of the suit shop and that the suit shop was in possession of the tenant and the possession has been received by the appellant by filing the eviction suit against the tenant and in this regard he has pressed IA No.8133/2016, an application u/O.41 Rule 27 of the CPC for taking the additional documents on record and the documents enclosed along with the said application. Responding to the cross objection he has submitted that the document of family settlement Ex.P/1 has been proved before the trial court and for the first time objection relating to stamp duty cannot be taken. He has further submitted that vide Ex.P/1 partition done earlier was reduced in writing, therefore, no stamp duty is payable and factual findings by the trial court have rightly been recorded on the basis of preponderance of probability and DW.1 in para 19 of the cross examination has admitted the partition, which is further supported by para 15 of his deposition. He has also submitted that the plea of adverse possession was raised by the respondents which shows that they are not the title holder and the necessary ingredients of adverse possession are not proved. 10. Learned counsel for respondents opposing the appeal has submitted that the trial court has rightly dismissed the suit as the relief of possession was not claimed. Pressing the cross objection he submits that Ex.P/1 cannot be read in evidence because it is not properly stamped. In this regard he has placed reliance upon Sec.2(15) of the Stamp Act as amended by the M.P. Amendment Act. He has also submitted that Ex.P/1 is not a family settlement deed but it is a relinquishment deed for which the stamp duty and registration is required. He has also submitted that the suit is beyond limitation because the defendant is in possession of the suit property since 1952 and the suit has been filed in 1984. He has also submitted that Ex.P/1 is not a family settlement deed but it is a relinquishment deed for which the stamp duty and registration is required. He has also submitted that the suit is beyond limitation because the defendant is in possession of the suit property since 1952 and the suit has been filed in 1984. He submits that none of the articles of the Limitation Act provides for limitation of more than 12 years. He has also submitted that since the respondents are in open hostile possession of the suit property since 1952, therefore, they have perfected their title by way of adverse possession and the defendants are entitled to take contradictory plea in the written statement. 11. I have heard the learned counsel for parties and perused the record. 12. So far as Ex.P/1 is concerned, at the stage of recording the evidence of PW.1 Manakbai on 24/7/1985, an objection was taken by the defendant in respect of the admissibility of Ex.P/1 on the ground that it was not registered and the matter had travelled up to this court. This Court in Civil Revision No.290/1985 had held that the said document is admissible for collateral purposes. The trial court has taken note of the order of this court in this regard and accordingly considered Ex.P/1. PW.1 Manakbai had proved Ex.P/1 and had stated that the ancestral properties were partitioned between Chandmal and his brothers. She had stated that the partition was reduced in writing in the account of Chandmal, Surajmal and Kanakmal and that the family settlement in the account of Chandmal was recorded by Foujmal and the same is proved to be as Ex.P/1. The statement of Manakbai is duly supported by PW.3 Dhirajmal. Dhirajmal S/o. Foujmal has identified the handwriting of his father who had written Ex.P/1. The plaintiffs witness P.W.5 Govardhansingh had also supported the factum of partition between Chandmal and Kanakmal. The oral statement of the witnesses about partition is supported by Ex.P/1. DW.1 in the written statement had denied partition and had raised the plea that the suit property was ancestral. She had admitted that her husband had received two houses in the partition out of which in one house he is residing and one has been sold out. The oral statement of the witnesses about partition is supported by Ex.P/1. DW.1 in the written statement had denied partition and had raised the plea that the suit property was ancestral. She had admitted that her husband had received two houses in the partition out of which in one house he is residing and one has been sold out. She has also admitted that her husband had not purchased any property and whatever property he had that belongs to his father and grand-father. A perusal of the deposition of DW.1 Manakbai reveals that there was a partition between the parties. Hence, the plea of family settlement is also supported by the statement of DW.1 Manakbai, wife of Kanakmal. The trial court which had the advantage of judging the demeanour of the witnesses has duly considered the statement of DW.1 Manakbai wife of Kanakmal and has drawn the adverse inference in respect of signature of Kanakmal on Ex.P/1. 13. So far as the argument of the respondent about stamp duty is concerned, the record reflects that earlier before the trial court only objection in respect of non registration Ex.P/1 was raised. The document has already been exhibited for collateral purposes, therefore, in view of the judgment of the Supreme Court in the matter of Javer Chand and others Vs. Pukhraj Surana AIR 1961 SC 1655 the respondent cannot now raise an objection in respect of admissibility of document on the ground of insufficient stamp duty. 14. So far as the submission of counsel for respondent that Ex.P/1 is a relinquishment or release deed is concerned, this document has been rightly appreciated by the trial court and no error has been committed by the trial court in finding it to be a family settlement. Hence, the trial court has committed no error in reaching to the conclusion that the suit shop was received by Chandmal in family settlement which was inherited by his wife Kanchanbai on his death and thereafter received by the plaintiff Manakbai, the sole surviving heir of Kanchanbai. 15. So far as the issue of possession is concerned, DW.1 Manakbai had stated that the suit shop was in possession of her husband Kanakmal since the time of her marriage. 15. So far as the issue of possession is concerned, DW.1 Manakbai had stated that the suit shop was in possession of her husband Kanakmal since the time of her marriage. She had also stated that in course of time the suit shop was given by him to Moolchand and in this regard she had proved Ex.D/1 to D/7 which are the documents of tenancy. The plaintiff had also not disputed before the court below the fact that Kanakmal had kept the tenant in the suit premises and he was collecting the rent, but the stand of the plaintiff was that since she was a widow and there was no male member, therefore, Kanakmal was taking care of the shop. For want of any proof that she had authorised Kanakmal to receive the rent, the plea of the plaintiff has not been accepted. Though it has been established before the trial court that after 1955 the relation between the plaintiff and Kanakmal had worsened, but there is no document on record to show that after the death of Chandmal, plaintiff Manakbai had received the rent of the suit property. The record reflects that since inception of the suit there are tenants in the suit premises from whom Kanakmal was accepting rent. 16 So far as the plea of adverse possession is concerned, in terms of the judgment of the Supreme Court in the matter of Karnataka Board of Wakf Vs. Government of India and Ors. (2004) 10 SCC 779 and in the matter of T.Anjanappa and Ors. Vs. Somalingappa and Ors. (2006) 7 SCC 570 the respondent was required to prove that the possession was hostile possession by clearly asserting hostile title in denial of the title of the true owner. He was to prove that (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party; (d) how long his possession has continued, and; (e) his possession was open and undisturbed. It is also the settled law that a person pleading adverse evidence has no equity. A minute perusal of the statements of DW.1 Manakbai, DW.2 Rishabhkumar and DW.3 Rajendrakumar disclosed that the necessary ingredients of adverse possession have not been proved. 17. It is also the settled law that a person pleading adverse evidence has no equity. A minute perusal of the statements of DW.1 Manakbai, DW.2 Rishabhkumar and DW.3 Rajendrakumar disclosed that the necessary ingredients of adverse possession have not been proved. 17. In the present case, though a plea of adverse possession has been taken, but the above necessary ingredients have not been proved. Though, as a defendant the respondent was entitled to take the contradictory plea, but having taken the plea of adverse possession it was necessary for the respondent to adduce the evidence showing open and hostile possession to the denial of title of the true owner which the appellant has failed to adduce in the present case. 18. So far as issue of limitation is concerned, no such plea that the suit was barred by limitation was taken by the respondent, in the written statement, therefore, no issue in this regard was framed by the trial court. However, in view of Section 3 of Limitation Act, issue of limitation needs to be looked into. 19. This Court in the matter of Malti Vs. Deviram and Ors. 1993 MPLJ 882 in this regard has held that :- 'In SA No.147/85, the only question that remains to be examined is whether the suit filed by the plaintiff/ appellant was within limitation. it is submitted by the learned counsel for Deviram that assuming he had acquired no title to the property still he having been in possession for a period of more than 12 years prior to the institution of the suit for possession by Maltibai, the suit was bound to fail. Such a contention is based on a misapprehension as to law. The submission fails to take notice of the march stolen over by Article 65 of the Limitation Act, 1963 over its predecessor provision. Now, a suit for possession of immovable property based on title, and not mere previous possession, can be filed within a period of 12 years when the possession of the defendant becomes adverse to the plaintiff. The submission fails to take notice of the march stolen over by Article 65 of the Limitation Act, 1963 over its predecessor provision. Now, a suit for possession of immovable property based on title, and not mere previous possession, can be filed within a period of 12 years when the possession of the defendant becomes adverse to the plaintiff. in other words, once the plaintiff has proved his title to the property, his right to recover possession cannot be lost in spite of lapse of 12 years from the date of his dispossession or discontinuance of possession unless and until the defendant has pleaded and successfully proved extinction of plaintiffs title by the defendant having prescribed title by adverse possession to him for the statutory period of 12 years. This is the well settled position of law. Reference may be had to recent decisions of this Court in Pataria and Ors. v. Mst. Chita and Ors ; 1992(2) MPJR 281 and Toran Singh V. Komal Prasad and Anr. 1991(2)MPJRSN 17." 20. In view of above judgment, title based suit can be filed within 12 years from the date possession becomes adverse. In the present case, the possession of the suit property is with the tenants. Undisputedly the suit property was ancestral property. Though, the appellants are claiming title on the basis of the family settlement Ex.P/1 and the suit has not been filed within 12 years thereafter, but the plea of the respondents about adverse possession has also not been proved, therefore, in terms of the aforesaid judgment in the case of Malti (supra) the suit is not barred by time. 21. Having regard to the aforesaid, I am of the opinion that no error has been committed by the trial court in holding the appellant to be the title holder of the suit land. 22. The next issue which arises for consideration before this court is to whether the trial court has committed an error in dismissing the suit on the ground that no relief of possession was claimed by the appellant. 23. In this regard first IA No.8133/2016, an application u/O.41 Rule 27 CPC needs consideration. 22. The next issue which arises for consideration before this court is to whether the trial court has committed an error in dismissing the suit on the ground that no relief of possession was claimed by the appellant. 23. In this regard first IA No.8133/2016, an application u/O.41 Rule 27 CPC needs consideration. Along with this IA, the appellant has placed on record the certified copies of the judgment and proceedings of the Court to show that the eviction suit was separately filed by the appellant against the tenant Moolchand and his L.Rs which was decreed and the decree was confirmed upto the Hon.Supreme Court and in the execution of the said decree the possession of the suit property has been received by the appellant. Since the documents are the certified copies of the judgment of the court and the proceedings and they have also not been disputed and the proper explanation for not filing the same earlier has been furnished, therefore, IA No.8133/2016 is allowed and documents are taken on record. Since these are undisputed documents being certified copies, therefore, none of the parties has made a prayer for adducing additional evidence on the basis of these documents. 24. A perusal of these documents reveals that the appellant had filed the suit for eviction against the L.Rs of the tenant Moolchand. The suit was decreed by the trial court by judgment dated 24/4/2006 against which the First Appeal was dismissed by the judgment dated 5th September, 2007 and the Second Appeal was dismissed by this court by judgment dated 21/1/2016 passed in SA No.926/2007 and the SLP(C) No.12034/2016 was also dismissed by the Honble Supreme Court by order dated 2/5/2016 by holding as under:- 'Upon hearing the counsel the Court made the following ORDER We are not inclined to entertain this special leave petition, which is dismissed. However, considering the prayer made on behalf of the petitioners, that the petitioners be granted some time to vacate and handover peaceful and vacant possession of the property in question, we deem it appropriate to grant time till 31.8.2016 to the petitioners to vacate and handover peaceful and vacant possession subject to filing of a usual undertaking to that effect in this Court within a period of four weeks from today, making it clear that he will handover peaceful and vacant possession of the property in question free from any encumbrance or third party rest or any other hindrance. Such possession shall be handed by the petitioners to the respondents on or before 31.8.2016. Pending application(s), if any, shall stand disposed of." 25. On the expiry of the time granted by the Honble Supreme Court since the possession was not handed over, therefore, execution proceedings were started by the appellant and the executing court on 14/9/2016 had issued the warrant of possession and in pursuance thereof the possession of the suit shop has been delivered to the appellant. The record reflects that the suit shop was not in possession of the respondent at the time of filing of the suit, but it was in possession of the tenants, therefore, in view of the judgment of the Honble Supreme Court in the matter of Deo Kuer and another Vs. Sheo Prasad Singh and others 1966 MPLJ 56 , the appellant was not required to claim the relief of possession. The Supreme Court in the matter of Deo Kuer and another (supra) in this regard has held that:- '5- The authorities clearly show that where the defendant is not in possession and not a position to deliver possession to the plaintiff, it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession: See Sunder Singh Mallah Singh Sanatan Dharam High School, Trust v. Managing committee, Sunder Singh Mallah Singh Rajput High School AIR 1938 PC 73 . Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The magistrate was in possession for whomsoever, it does not matter, and he was not of course a party to the suit. Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The magistrate was in possession for whomsoever, it does not matter, and he was not of course a party to the suit. it is pertinent to observe that in Nawab Humayun Begam v. Nawab Shah Mohammad Khan AIR 1943 PC 94 , it has been held that the further relief contemplated by nthe proviso to section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd. AIR 1939 Madras 853, it was held that it was not necessary to ask for possession when property was in custodia legis. there is no doubt that property under attachment under section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession. 6- In Dukhan Ram v. Ram Nanda Singh AIR 1961 Pat.425, a contrary view appears to have been taken. The reason given for this view is that the declaratory decree in favour of the plaintiff would not be binding on the magistrate and he was free inspite of it to find that possession at the relevant time was with the defendant and deliver possession to him. With great respect to the learned Judge deciding that case, the question is not whether a declaratory decree would be binding on the magistrate or not. The fact that it may not be binding would not affect the competence of the suit. The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which it is not disputed, is the case when the property is under attachment under section 145 of the Code. We think that Dukhan Rams case had not been correctly decided. we may add that no other case taking that view was brought to our notice." 26. We think that Dukhan Rams case had not been correctly decided. we may add that no other case taking that view was brought to our notice." 26. In the aforesaid back ground, not claiming the relief of possession in the suit is not fatal to the appellant. Hence, the appeal is allowed and the suit is decreed and the cross objection of the respondent is dismissed by holding the appellant to be the owner of the suit land. 27. No costs.