Kesar Bai vs Genda Lal

Kesar Bai …Appellant(s)

Versus

Genda Lal & Anr. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Madhya Pradesh Principal Seat

at Jabalpur in Second Appeal No. 8 of 1999, the original defendant has

preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:-

2.1 That the respondent No.1 herein – original plaintiff filed a suit

seeking declaration of ownership and permanent injunction against the

defendant with regard to the suit property. The original plaintiffs claimed

the title / ownership on the basis of the registered Sale Deed executed

on 31.08.1967 in favour of their father and husband Dariyab Singh. The

1 plaintiffs also claimed the title on the basis of the adverse possession.

The learned Trial Court dismissed the suit.

2.2 The original plaintiffs preferred the appeal before the First

Appellate Court. The learned First Appellate Court though held that the

plaintiffs shall not get any right on the basis of the Sale Deed dated

31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observing

that the plaintiffs are in possession of the suit land. The First Appellate

Court also held that therefore, the plaintiffs have perfected their title by

way of adverse possession. The First Appellate Court decreed the suit

for title on adverse possession and issued the decree of permanent

injunction restraining the defendant No.1 – appellant herein from

interfering with the possession of the plaintiffs. The appellant herein –

original defendant No.1 filed the second appeal before the High Court.

The High Court framed the following substantial question of law:-

"Whether the First Appellate Court has erred in holding that the plaintiff has perfected his title on the disputed land by adverse possession?"

2.3 Though the High Court answered the aforesaid substantial

question of law in favour of the appellant, however, thereafter did not

interfere with the judgment and order passed by the First Appellate Court

by observing that the First Appellate Court has specifically given the

finding that the plaintiffs are in possession of the suit land since after

execution of the Sale Deed dated 31.08.1967. Consequently, the High

2 Court has dismissed the said second appeal. The impugned judgment

and order passed by the High Court dismissing the second appeal is the

subject matter of present appeal.

3. Learned counsel appearing on behalf of the appellant – original

defendant No.1 has vehemently submitted that as such the plaintiffs filed

the suit for declaration claiming ownership/title on the basis of the

registered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed the

ownership by adverse possession. It is submitted that all the Courts

below had negated the claim of the original plaintiffs on the basis of the

registered sale deed. It is submitted that thereafter the only question on

behalf of the plaintiffs was the claim on the basis of the adverse

possession. It is submitted that in the impugned judgment and order, the

High Court has though held the substantial question of law on adverse

possession in favour of the appellant by observing that the plea of

ownership based on sale deed and plea of adverse possession, both,

are contrary to each other and plaintiffs cannot be permitted to take the

same plea at the same time, thereafter the High Court has dismissed the

appeal and confirmed the judgment and order passed by the First

Appellate Court decreeing the suit for title and also passed the decree

for permanent injunction.

3 3.1 It is vehemently submitted by the counsel on behalf of the

appellant that once the original plaintiffs failed to get the decree for

title/declaration on the basis of the Sale Deed executed on 31.08.1967

(Ex.P.1) and the substantial question of law with respect to the adverse

possession was held in favour of the appellant by the High Court,

thereafter the original plaintiffs shall not be entitled to the decree of

permanent injunction.

3.2 It is further submitted that the High Court has failed to appreciate

that once the plaintiffs are not found to be the owner, they cannot claim

their title by way of adverse possession. Their possession over the land

in question can only be in the nature of an encroacher. It is submitted

that therefore both, the First Appellate Court as well as the High Court

have seriously erred in granting the permanent injunction in favour of the

plaintiffs and against the defendants.

4. Ms. Swarupama Chaturvedi, learned AAG appearing on behalf of

the respondent No.2 – State has submitted that she is appearing for a

proforma respondent and therefore, has nothing to add.

5. Having gone through the impugned judgment and order passed by

the High Court as well as the First Appellate Court and even that of the

learned Trial Court, it appears that the original plaintiffs prayed for a

4 declaration and claimed the title/ownership on the basis of the Sale

Deed dated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also

claimed the title by adverse possession. All the Courts below have

negated the claim of the original plaintiffs of ownership on the basis of

the registered Sale Deed dated 31.08.1967 (Ex.P.1.) Therefore, the only

claim on behalf of the plaintiffs was the plea of adverse possession. So

far as the plea of adverse possession is concerned, the High Court has

specifically framed a substantial question of law (reproduced

hereinabove) and as such has held the same in favour of the appellant –

original defendant No. 1. The High Court has specifically observed and

held that the plea of ownership based on sale deed and plea of adverse

possession, both, are contrary to each other and the plaintiffs cannot be

permitted to take both the pleas at the same time. Therefore, even as

per the High Court, the claim of the plaintiffs on the basis of the adverse

possession was not tenable. In that view of the matter and once the

substantial question of law on adverse possession was held in favour of

the appellant – original defendant No.1 and the title/ownership claimed

on the basis of the Sale Deed dated 31.08.1967 (Ex.P.1) was negated by

all the Courts below, thereafter the possession/alleged possession of the

plaintiffs could not have been protected by passing a decree of

permanent injunction in favour of the plaintiffs. Under the circumstances,

5 the High Court has materially erred in dismissing the appeal and

confirming the judgment and order passed by the First Appellate Court.

6. In view of the above and for the reasons stated above, present

appeal succeeds. The impugned judgment and order passed by the

High Court passed in Second Appeal No. 8 of 1999 and the judgment

and order passed by the First Appellate Court are hereby quashed and

set aside and the judgment and decree passed by the learned Trial

Court dismissing the suit is hereby restored.

Present appeal is accordingly allowed. However, in the facts and

circumstances of the case, there shall be no order as to costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. OCTOBER 14, 2022. [KRISHNA MURARI]

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