Allowed

Moti Ram v. Kaushalya Bai

Chhattisgarh HC1 Jan 2013SA/725/1997

Case brief

AI extract

What is this about?

In this second appeal regarding property title, the Court set aside the lower appellate decree and restored the trial Court's judgment. The Court held that despite pleaded adverse possession, the existing notice proved possession was permissive, negating adverse title. Consequently, the appellant recovered possession.

What did the court decide?

Impugned judgment set aside; trial Court judgment restored; appellants entitled to possession.

Moti Ram Vs Kaushalya Bai — Property and Title | Chhattisgarh HC (2013)

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'JUDICATURE
^^' IH 1'HB HIGH COURS' OF Al' JABALPU.8
fc.1-—u'P'-' /'5-5 of 1997
3econ<3 APpeal No.
( MwiorandUT?i -o£ Secon<3 Appsal, Under Section lp0 of CPC )
Ban age<3 69 years, .son of
Bl'nar'i Kurmi» occupat.ion cul'tlva.
-tion, residerat of Post & 'i/lllage^
Kaltha,tahsU Saktl district.
Btlaspur (HP)
iCSUi
8 &\1* Kau.shal^a Bai •S> Phup-fc.tn Bai
aged 53 years; wioow or Lakhant|[i
$ 2« 3ail1curnarl S' Kondi ag.s<5 33 ,
years, S/Q Lakhai wife of M'
Ramawatara ii
$ 3» Stanifcra Bai aged 38 ye?rs :;{'
riiQciw of Ijak'han
S 4, Sbwnandan aged 13 ye&rs" S/o |lr
L-^^han » !i:
~0/c>
g^ 5t RemdixlarJ. sgec 9 years || I
Lakhari •
^ 6. ghri Kuraar ag.sd 7 years, S/o
Lak'nan ,
S. 7» P.ama Bai sge(3 5 years E/o
tiajfn aii •
Sl.No· 4 to 7 inj.nor.s th.ro'agh
next ft'iend mother Si-in'ti tra
Bsi "••fi.clow of Lafchan, - j]
I)
All resldent: of Vlllage & K?ST;I!
Xaltha tahsil sakt.l cilstric-t 1-1
Bilaspur (MF).
5. 8« 25'i$ Stat.e of Mad'nya Pradesh
throuq'h Uie Collector
Bllaspur (MP)>
MEH05W3UM 03? S33C®D SPPSAL UNOER SSCT3CN $00 OF C.P.C,

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(a) Saatosh Kuruar Kashyap son of Motiram (Motilal),
aged about 48 years, R/o ViUage-Kaifha, Via-Birra,
/ (S1 TahsU-Jaijaipur, District-Janjgir-Champa (C.G.)
^^
(b) Neera Bai daughter of Motiram (Motilal) wife of Rath
.S^"' Ram, aged about 45 years, R/o Malda (Brrra) Kala,
Tahsil-Jaijaipur, District-Janjgir-Champa (C.G.)

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HIGH COURT OF CHHATTESGARH. BILASPUR

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(Sinale Bench: Hon'ble Mr. T.P. Sharma. J)

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S.A. No.725/97

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(a) Santosh Kumar Kashyap Plaintiffs (b) Neera Bai Vs RESPONDENT 1. Sailkumari @ Kondi. Defendant 2. Sumitra Bai 3. Sheonandan 4. Ramdulari 5. Shri Kumar 6. Rama Bai

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The State of M.P.

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Present:

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Mr. H.S. Patel, Advocate for the appellants. Mr. Vishnu Koshta, Advocate for the respondents Nos.3 to 7.

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Ms. Sangeeta Mishra, Panel Lawyer for the respondent No.7-State.

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JU06MENT (02.01.2013)

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By this second appeal under Section 100 of CPC the appellant has challenaed the legality and propriety of the judgment <& decree dated 27.3.1997 passed by the District Judge, Bilaspur in Civil Appeai No.33A/93 reversing the judgment <& decree dated 30.9.1993 passed in Civil Suit No.45-A/88 whereby the trial Court has decreed the suit of the plaintiff. The Ipwer appellate Court re'/ersed the judgment and decree of the trial Court by holding that after lapse of 12 years the present appellant is not entitled for possession on the ground of limitation.

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This appeal has been admitted for consideration on following substantial questions of law;-

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Whether under the facts and circumstances of the case, the possession obtained by the respondent Nos.lto 7 in April, 1974 could be said to be adverse possession to the appellant?

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Whether the respondent Nos.l to 7 were bound to plead that they have perfected the title by adverse possession by having

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Page2of5

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S.A. No.725/3

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open, hostile, and continuous possession for 12 years, and in absence of any specific plea on this point, if the Courts below were right in dismissing the suit of the appellant?

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Whether the appellant shall be entitled to mesne profit under the facts and circumstances of the case?

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As per undisputed pleadings and evidence, the plaintiff is the owner of the suit property bearing Khasra No.488, area 1.37 acre, situate at Village Kaitha. He had obtained loan from the defendant Lakhan, said Lakhan and thereafter his legal representatives are in possession of the suit property since 1974. As per plaint allegations, original defendant Lakhan was in possession of the property since 1983, in alternative he was in possession of suit property till 1985 in lieu of loan advanced to the plaintiff. On the aforesaid basis, suit for possession and mesne profit was filed by the plaintiff. By filing written statement, defendant Lakhan had admitted possession but denied the allegation that he was in possession of the suit property since 1974 in lieu of loan or his possession was permissive, inter alia, he has specifically pleaded that he has forcefully obtained possession of the suit property in May, 1974 on account of non-payment of loan and since then he is in possession and on the basis of adverse possession, he has perfected his title.

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After providing opportunity of hearing, the trial Court has decreed the suit of the plaintiff, however, the lower appellate Court has allowed the appeal filed by the defendant and dismissed the suit.

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I have heard learned counsel for the parties and perused both the judgments and record of the court below.

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Learned counselfor the appellants vehemently argued that even as perpleading of the defendant himself, he is in possession of the property since 1974, notice (Ex.D-1), which has been relied upon by the defendant, has been served upon him in the month of October, 1985 i.e. within 12 years of such factum of possession. He further submits that the respondents' predecessor in title, Lakhan, was in possession

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Page3of5

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S.A. No.725/97

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of the property in lieu of looin and the same was permissive possession and not adverse possession, therefore, by allowing the appeal and dismissing the suit, lower appellate Court has committed illegality. He further submits that although the plaintiff has not relied upon the notice (Ex.D-1) but he is bound to rely the facts mentioned in the said notice which was filed and relied by the defendant. Para-1 & 2 of the said notice (Ex.D-1) would clearly reveal that in lieu of interest of loan the possession was handed over to the defendant and he was cultivating the land since 1974 which by itself is sufficient to establish that possession of defendant Lakhan was permissive and not adverse.

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On the other hand, learned counsel for the respondents No.3 to 7 has opposed the appeal and submits that respondents' predecessor in titleLakhan, has specifically pleaded in Para-4A of the written statement that he has taken forceful possession of the suit property in May, 1974 and since then he is in continuous & uninterrupted possession of the suit property against the appellant. He further submits that possession of defendant Lakhan was adverse to the plaintiff, therefore, the lower appellate Court has rightly allowed the appeal and dismissed the suit.

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Both the parties have examined witnesses and as per evidence of plaintiff and his witnesses, Lakhan wos in possession of the property in lieu of loan, inter alia, as per pleadings and evidence of defendant Lakhan and his witnesses, Lakhan has specifically put a condition at the time of giving loan that if the loan is not repaid within a year then he will forcefully take possession of the suit property. When the loan was not repaid within one year then he forcefully took possession of the suit property in the year 1974. The defendant has relied upon the document Ex.D-l, however, the plaintiff has not relied upon the said notice (Ex.D-1) but admitted his signature over it. The said notice has been issued by the plaintiff to the defendant Lakhan, who has filed

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S.A. No.725/97

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the same in support of his claim. Relevant part of Para-1 & 2 of the

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"^T-1: v ^ ^tcft t ^rt Sm^ ITRT eZTTuT c^ TppST 4 CCT^TCPN 'cp^r ^; f^pt ferr air i iRf-2: Tf? f^ 3TFT ^ d4'<)cW i?q5 ^tcft 'f^RTcpT ?E|?6[T 1-35 ^fiS t ^T 3TPT W;T 1974 ^ ^TRf ?15^ '+'Hd glRld cp^ ^ 3TT ^ t I"

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Defendant Lakhan has proved the existence of notice by himself. In Para-10 he has specifically admitted that he has not replied the notice because without any objection or interruption he was in cultivating possession of the:suit property.

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In the light of contradictory evidence of both the parties, the only document, notice (Ex.D-1), which has been relied by both the parties, is remained for consideration for deciding the nature of possession.

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lO.Contents of noticte (Ex.D-l) specifically revealed that possession has been delivered to defendant Lakhan in lieu of interest of loan and said Lakhan was in cultivating possession of the suit property since 1974. In absence of any contra document and document (Ex.D-1) relied by both the parties no other inference would be possible except that defendant Lakhan was in cultivating possession of the suit property since 1974 that too in lieu of interest of loan, therefore, his possession was permissive and not adverse. This document by itself is sufficient to prove that possession of defendant Lakhan or present respondents was not adverse although defendant Lakhan has pleaded factum of adverse possession in his written statement.

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As regards the mesne profit is concerned, in absence of any specific condition and in the light of notice (Ex.b-1), the appellants are not entitled for- any mesne profit.

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Consequently, substantial question of law No.l is decided as negative. Substantial Question of Law No.2 is decided as positive and it is held

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/ that though the respondents have factum of adverse pleaded

:'Y

Page 5 of5

S.A. No.725/97

possession but their possession was not adverse. Substantial Question of Law No.3 is decided as negative.

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13.0n the basis of above findings on the substantial questions of law formulated for decision of this second appeal, the appeal succeeds and the impugned judgment and decree passed by the lower appellate Court is hereby set aside. The judgment and decree passed by the trial Court is hereby restored and modified to the extent that the

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appellants are entitled for possession of the suit property.

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The parties shall bear their own cost. Advocate's fee as per schedule.

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-——-—,^ Decree be drawn-up accordingly. 7-—

7-—

T. P. Sharma

Judse ?'

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Moti Ram v. Kaushalya Bai

Case brief

What is this about?

What did the court decide?

Moti Ram v. Kaushalya Bai

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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