A second appeal regarding a suit for possession based on title. The High Court held that respondents perfected their title via adverse possession for over 12 years against the true owner. The appeal was dismissed against the lower courts' judgment.
Appeal dismissed; parties bear costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE ATBILASPUR (CHHATTISGARH)
a
‘
&.- s: V
' a‘
H
Ax
7
(3.3 SECOND APPEAL — / 2001
SECOND APPEAL UNDER SECTION100OFTHECIVILPROCEDURE</sup> CODE AGAINST THE IUDGElVlENTANDDECREEPASSEDBYTHE2ND ADDITIONAL DISTRICT JUDGE AMBIKAPURINCIVILAPPEALNO‘29 A /QR ON DATED 04-10—2000
‘ M
AyPELLANTs i PLAINTIFFS
.SMT GENDI
WIFE OF LATE JAGANNTH,
AGED ABOUT 65 YEARS
RESIDENT OF VILLAGELATERL
TAHSIL SURAJPUR,
DISTT‘ SURGUJA,
s 2. SMT BUDHI
D/o JAGANNATH W/o SAPNIHA
AGED ABOUT 35 YEARS
OCCUPATION— AGRICULTURE
RESIDENT OF VILLAGE- MORDIH,
TAHSILw SURAJEUR DISTT SURGUJA.
TASTEHULESHWARL
MA
W/O AMRIT GOND,
gxa
AGED ABOUT 60 YEARS,
,_4:"JA1KARAN,
SON OF AMRIT GOND,
AGED ABOUT 35 YEARS,
OCCUPATIONi AGRICULTURE,
R/o VTLLAGE MORDIH, (MORLIGANJ),
P/s JAINAAGAR,
TEH. SURAJPUR,
DISTT SURGUJA.
VERSUS
RESPONDENTS /i,SODHI RAM DEFENDANTS S/o BUDHRA AGED ABOUT so YEARS, 2 NAVAL,
J, S/o SONDHI RAM AGED ABOUT 3oYEARS, BOTH BY CAST LOHAR., OCCUPATIONALABOUR,
R/O VILLAGE—WARDKEDARPUT; POLICE STATION ANDTAH.AMBIKAPUR, DISTT SURGUIA
W
Second Appeal No.33 0f2001
IN THE HIGH COURT OF CHHATTISGARH,BILASPUR
SINGLE BENCH
HON'BLE MR.T.P. SHARMA,J
S. A. No. 33 of 2001
Ap‘pellants Pla‘intiffs
1 . Smt. Gendi
Smt. Budhi Phuleshwari Jaikaran
Versus
Re‘spondents 1. Sodhiram Deiendants
2 Naval
Second Appeal Under Section100ofCivilProcedureCod"
Appearance:
Mr. Shushil Dubey, counselfortheappellants. Mr. Shakti Raj Sinha, counselforrespondents.
JUDGMENT (09.09.2014)
This second appeal filed against the judgments and decree dated 04.10.2000 paSsed by llnd Additional District Judge, Ambikapur, Surguja, in Civil Appeal No.29-A/98affirmingthe judgmentand decree dated 14.05.1998 passed by Vth Civil Judge, Class—Hf Ambikapur in Civil Suit No. 264-A/1997, dismissing the suit filed by the appellants for possessionon the basis of title, has been admitted on the following substantial question oflaw:-
Second Appeal No.33 of 2001
“Whether (1) the trial Court was justified in dismissing the suit of the plaintiffs after having held that the plaintiffs are the Bhumiswami of the suit land by holding that the defendants have perfectedtheirtit/e by way of adverse possession and plaintiffs’ suit is barred by limitation?”
And
2.;
(2) Whether the first appellate Court was justifiedin affirming the judgment and decree so passedbythetrialCourt?”
As per plaint allegation, original plaintiff Jagarnath, Fuleshwari and Jaikaran were owner of the suit property bearing Khasra ‘area No.236/1 0.13‘acre situated at ward Kedarpur‘ city Ambikapur.‘ In the year 1982-83, respondents dispossessed the deceased plaintiffJagarnathfrom the suit property on the basis of one forge sale deed dated 01.01.1954 allegedly executed by elder brother of Jagarnath namely Manbodhan. When it was objected by Jagarnath then respondents assured him that when adverse possession would be demanded they will vacate the land but they did not vacate the land inter alia, in the year 1983, respondent No.1 maliciously and fraudulently filed an application for title of land, which was dismissed on the ground that document for execution of title was unregistered document, thereafter, they filed civil suit in the year 1986 for declaration and permanent injunction of suit property on the basis of alleged sale deed executed in the year 1954, which was registered as Civil Suit No.126-A/92 by Civil Judge Classll, Ambikapur. Finally, the suit was dismissed as abated on 15.06.1992. The appellants served notice for evicting respondents, thereafter, they filed suit for possession on the basis of title.
Second Appeal No.33 0f2001
By filing written statement, respondents have denied the adverse allegation and have specificaiiy aiieged that the iand was owned by Manbodh, brother of deceased plaintiff Jagarnath, who sold the land to respondents in the year 1954 by unregistered document. Manbodh died in the year 1970. They filed civil suit and respondents are in possession. Mutation proceeding was initiated by respondents, and on the basis of dismissal of civil suit, they have not dispossessed the ‘ respondents in the year 1982—83.
After providing opportunity of hearing to the parties, the trial Court dismissed the suit, and the lower appellate Court dismissed the appeal filed on behalf ofthe appellants.
Heard learned counsel for the parties. Both the judgments and decrees impugned & records of Courts below perused.
Learned counsel for the appellants vehemently argued that this is a suit for possession on the basis of title. As per revenue records, appellants are owner of the suit property. As per para3of plaint, respondents have forcefully entered into possession of the suit land on the basis of alleged unregistered document on 01.01.1954. When it was objected then they agreed to vacate the possession whenever demanded but they maliciously and fraudulently filed suit. Learned counsel for the appellants further argued that Budhi (PW/1) has specifically deposed that the land was given to respondents, possession of respondents was permissive not adverse. The claim of respondents, on the basis of unregistered document, is not sustainable. Respondents have failed to prove the adverse possession that too as appellants true owner. ln support of his argument, learned counsel for
Second Appeal No.33 of 2001
the appeHants placed reliance in the matter of Manglu Mool_ Singh Vs. Kunjlal & another reported in 2013(4) C.G.L.J.“ 428, in which co-ordinate bench of this Courthasheidthat in case the appeliant/piaintiff did notfile suitfordeciarationoftitle on the basis of adverse possession and did not prove the possession for more than 12 years that too against the true owner then he is not entitied for any decree. He further piaced reiiance in the matter of Mst. Hemwati Bai andanotherV5,. Bahadur and another reported in 2006(2) C.G.L.J. 264, in which co—ordinate bench of this Court has heid that the question of adverse possession is a question of fact, which has to be determined in each case afterapplyingacorrecttest to the plea retained by the party. The deniai of title and the animus to hold adversely should, however, be clear and evidence by unequivocai conduct. The plea of adverse possessionisalwaysraisedagainstthetrueowner. He further placed reliance in the matter of P.T. Munichikkanna Reddy_ and others Vs. Revamma and others reported in (2007)6_ SCC 59, in which Supreme Court has held that in case of adverse possession, the possession mustbeopen,continuous and hostile to constitute adverse possession. There must be positive intention to dispossess the owner. Date of dispossession of the owner i.e. starting point of adverse possession is also important than even and undoubtedly land in dispute is proved the intention of the adverse possession. On the other hand, learned counsel for respondents opposed the appeal and submits that respondents are in possession over the suit property since 1954 on the basis of one unregistered document executed by Manbodh in favour of respondents even otherwise, as per para 3 of the plaint,
Second Appeal No.33 of 2001
respondents have dispossessed the appellants in the year 1982-83, and they have filed the suit for possession on the basis of title but as per para 2 of evidence of Budhi (PW/1), the possessionofrespondents is permissive, both are contrary to each other. Learned counsel for respondents further submits that pleading of the appellants and respondents clearly reveal the fact that respondents have never claimed possessionas permissive possessioninter alia, they claimed the possession .s‘as adverse to the true owner. The suit was dismissed as abated which also supports the case of respondents that his possession is adverse to the appellants even as per para 7 of evidence of Badhu Sao (PW/2), the respondents are in possession over the suit property since 40-45 years priorto the date of his evidence dated 19.08.1997 i.e. respondents are in possession since about 1954. His witness Dilbandhu (PW/3) has also deposed in para 5 that Manbodh and Jagarnath have given land to respondents and since then they are in possession. Manbodh died in the year 1970, which also shows that respondents are in possession priorto 1970. He also submits that neither appellant has pleaded nor proved the fact that possession of respondents is permissive inter alia, he has pleadedand proved that possession of respondents are adverse to the true owner. As per pleading of the parties, the possession of respondents was never permissive. As per evidence of Budhi (PW/1), she personallydidnotknowtherespondents even her age on the date of evidence;was was 40 years. As per para 7 of the evidence of Badhu Sao (PW/2), respondents are in possession over the suit property since last 42—45 year, and as per para 6 of evidence of Dilbandhu (PW/3), respondents are in
Second Appeal No.33 of 2001
possessionduring 1ife of Manbodh & Jagarnath andManbodh died in the year 1970 i.e. as per evidence and pleading, respondents are in possession since morethan4O years prior to 1970 and suit has been tiled in the year 1993. The possessionofrespondentswasneverpermissiveandalways adverse.
i ‘c
As heid in the case of Manglu (Supra), parties claiming .adverse possessionisrequired to prove the possession that too adverse against true ownerformorethan12 years. in the present case, the respondents have proved the possession adverse to" true owner for morethan12 years. As held in the case of Mst. Hemwati (Supra),the questionof adverse possession and a questionoffact,respondentshave provedtheadverse possessionthattooagainsttrueownerby clear evidence, submission of appellant, pleading and evidence.
Second AppealNo.33of 2001
formulatedforthedecisionofthisappealisdecidedaspositive and substantial question of law No.2 is also decided as positive.
13
On the basisoffindingonsubstantialquestionsoflaw, i do not find any substanceinthisappeal,andtheappealbeingdevoid of meritisliabletobedismissedandisherebydismissed.
T4. Parties shallbearthecostoftheappeal.
Decreebedrawnupaccordingly.
’ “ sh/' T1).Shanna JudgL/
Vijay
2 issues framed by the court
Whether the trial Court was justified in dismissing the suit of the plaintiffs after holding that the defendants perfected title by adverse possession and the suit was barred by limitation?
Whether the first appellate Court was justified in affirming the judgment and decree passed by the trial Court in this civil appeal regarding adverse possession?
Colour shows how this judgement treated each authority
Manglu Mool Singh Vs. Kunjlal & anotherRelied on¶67
Manglu Mool Singh Vs. Kunjlal & another 2013(4) C.G.L.J.
Mst. Hemwati Bai and another Vs. Bahadur and anotherRelied on¶67
Mst. Hemwati Bai and another Vs. Bahadur and another 2006(2) C.G.L.J. 264
P.T. Munichikkanna Reddy and others Vs. Revamma and othersRelied on¶67
P.T. Munichikkanna Reddy and others Vs. Revamma and others (2007)6 SCC 59 · Who else cites this
Smt. Gendi
Smt. Budhi Phuleshwari Jaikaran
Sodhiram
Naval
T.P. Sharma
Vijay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
