Allowed

Arun Pathak v. Gyani Hajrat Singh (Deceased) Through Lega Heir- (a) Karamjit Singh

Chhattisgarh HC2 Jan 2020SA/511/2004

Case brief

AI extract

What is this about?

This second appeal restored the trial court's decree dismissing the suit. The High Court held the appeal court erred in granting possession, ruling the specific relief barred under Section 34 of the Specific Relief Act, 1963, as the plaintiff failed to challenge the prior lease order or claim possession.

What did the court decide?

The impugned judgment and decree of the first appellate Court were set aside; the trial Court's judgment and decree were restored, and the suit dismissed.

Arun Pathak Vs Gyani Hajrat Singh (Deceased) Through… — Property and Title | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.511 of 2004

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Arun Pathak S/o Jwala Prasad Pathak, Aged about 31
years, R/o Nayapara Jagdalpur, At present near Pramod
Provision Store Vrindawan Colony, Jagdalpur, Dist:
Bastar-(CG)

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---- Appellant/Defendant No.3

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Versus

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Gyani Hajrat Singh (Dead) through his LR's 1(a) Karamjit Singh S/o Mahendra Singh, aged about 50 years, R/o Plot No.28/1, Sheet No.52, Frazerpur, P.S. Fregerpur, District Bastar (CG)

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---- Plaintiff

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State of Chhattisgarh through Collector Jagdalpur, Dist : Jagdalpur (CG)

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Tahsildar (Nazul), Jagdalpur

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---- Respondents

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For Appellant/Defendant No.3

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:Mr.Prafull Bharat and Mr.Akash

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 Pandey, Advocates
For Respondent No.1/Plaintiff:

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 Mr.Aishwarya Pandey, Advocate
For Respondents No.2 & 3 :Mr.Sanjeev Kumar Agrawal, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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02/01/2020

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This second appeal preferred by the appellant/ defendant No.3 was admitted for hearing by formulating the following substantial questions of

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law:-

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“1. Whether the lower appellate Court was not
justified in reversing the decree passed by
the trial Court and passing a decree for
possession even after confirming the answer

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of issue no.1 ?

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2. Whether the lower appellate Court was not
justified in passing an order for delivery of
possession from the defendant as admittedly
the defendant was possessing the land on
account of a grant and the suit was barred
u/s 257(m) of the M.P. Land Revenue Code ?”

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[For the sake of convenience, the parties would
be referred hereinafter as per their status
shown in the suit before the trial Court].

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Plaintiff-Gyani Harjas Singh filed a suit for declaration of title and permanent injunction stating inter-alia that the suit land bearing plot No.28/1, sheet No.52, area 1500 sq.ft. is owned by the State Government on which he has constructed pakka house and staying therein and as such, he is residing for last 31 years and has perfected his title by way of adverse possession, but during pendency of his application for allotment, encroachment proceeding under Section 248 of the Chhattisgarh Land Revenue Code, 1959 was initiated against him and by order of Nazul Officer dated 10.3.1983, fine was imposed upon him. In other two cases, fine was also imposed against him, but he was in possession of the suit land. It was further pleaded that by order dated 17.3.89 in Revenue Case No.70/A-20(1)/82-83 the suit land has been allotted to defendant No.3 by defendant No.2. The plaintiff has perfected his title by way of adverse possession and grant of permanent lease in

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favour of defendant No.3 is void and violative of
principles of natural justice. It was also pleaded
that he has been dispossessed pursuant to permanent
lease granted by defendant No.2 in favour of
defendant No.3, as such, the plaintiff is entitled
for declaration of title and in alternative,
allotment made in favour of defendant No.3 be
declared void and not binding on him and he is also
entitled for permanent injunction.

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Defendant No.3 filed his written statement and denied the averments made in th plaint stating inter-alia that permanent lease has rightly been granted in his favour by order of Nazul Officer dated 17.3.89 and pursuant thereof, he has been placed in possession of the suit land and the plaintiff being rank encroacher is not entitled for declaration of title and permanent injunction and as such, the suit deserves to be dismissed.

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The trial Court upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated

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24.2.2003, dismissed the suit holding that the
plaintiff has not perfected his title by way of
adverse possession over the suit land and allotment
made by defendant No.2 in favour of defendant No.3 is
in accordance with law, against which, the plaintiff

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preferred first appeal under Section 96 of the CPC
before the first appellate Court. The said Court by
the impugned judgment and decree partly allowed the
appeal and set aside the judgment and decree of the
trial Court holding that permanent lease granted by
defendant No.2 in favour of defendant No.3 is not in
accordance with law and the plaintiff is entitled for
possession over the suit land. Questioning the
judgment and decree of the first appellate Court,
this second appeal under Section 100 of the CPC has
been preferred by the appellant/defendant No.3, in
which substantial questions of law have been
formulated and set-out in the opening paragraph of
this judgment.

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Mr.Prafull Bhagat, learned counsel for the

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appellant/defendant NO.3, would submit that the first
appellate Court has fallen into grave legal error in
decreeing the suit of the plaintiff ignoring the fact
that order granting permanent lease by Nazul Officer

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in favour of defendant No.3 on 17.3.89 was not
challenged by the plaintiff in civil suit preferred
by him before the trial Court. He would further
submit that possession of the plaintiff, which is
admittedly as encroacher, cannot be adverse
possession in the light of decision rendered by the
Supreme Court in the matter of Ravinder Kaur Grewal

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and others v. Manjit Kaur and others1. He would also
submit that the plaintiff is not in possession over
the suit land and did not seek for possession.
Therefore, the suit is barred by proviso to Section
34 of the Specific Relief Act, 1963 (hereinafter
called as 'Act of 1963'), as such, the impugned
judgment and decree deserves to be set aside.

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Mr.Aishwarya Pandey, learned counsel for legal representative of respondent No.1/plaintiff, would submit that the plaintiff's application for grant of permanent lease was arbitrarily rejected by Nazul Officer/defendant No.2 though he was in possession

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over the suit land, but he was not afforded an
opportunity before granting permanent lease in favour
of defendant No.3, as such, the first appellate Court
has rightly granted decree in favour of the plaintiff
directing him to be reinstated in possession and as
such, the second appeal deserves to be dismissed.

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I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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It is not in dispute that the suit land bearing plot No.28/1, sheet No.52, area 1500 sq.ft. is the land held by the State Government in which the plaintiff

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1 (2019) 8 SCC 729

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claimed to be in possession for last 31 years. It is
also not in dispute that defendants No.1 and 2 have

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initiated encroachment proceeding against the
plaintiff and he has been found to be encroacher
under Section 248 of the Code for unauthorizedly
remaining on government land by encroaching the
government land. It is admitted position on record as
stated in para-4 of the plaint that permanent lease
has been granted by Nazul Officer by order dated
17.3.89 in Revenue Case No.70/A-20(1)/82-83 in
favour of defendant No.3 and pursuant to that order,
possession has been delivered to defendant No.3 and
the plaintiff is not in possession of the suit land.

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In a suit filed by the plaintiff, he only claimed that he has become title-holder of the suit land by way of adverse possession and therefore, permanent lease be granted in his favour. He also pleaded that

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permanent lease granted on 17.3.89 in favour of
defendant NO.3 is void and not binding on the
plaintiff, which the trial Court did not accept, but
the first appellate Court accepted the same by
reversing the finding of the trial Court holding that
grant of permanent lease in favour of defendant No.3
is not in accordance with law. The first appellate
Court ignored the fact that order granting permanent
lease in favour of defendant No.3 on 17.3.89 is

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admitted fact as stated in para-4 of the plaint, but
the plaintiff did not question that order granting
permanent lease in favour of defendant No.3 as bad in
law and simply sought relief that order is not
binding on him being void. In fact, the plaintiff was
required to seek setting aside of order granting
permanent lease in favour of the appellant/defendant
No.3.

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In the matter of Jugraj Singh and another v. Jaswant Singh and others 2, the Supreme Court in

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identical fact situation has held as under:-

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“11. In these circumstances, we are
satisfied that there was proper execution
of the document and registration. It is
hardly necessary, in view of our decision,
to say anything more about this case. We
are also satisfied that the appellants were
not entitled to a declaration. We have
reproduced the paragraph in which the
reliefs were asked in the plaint. It will
be noticed that they neither asked for the
cancellation of the order of the Collector
nor for any injunction, two of the reliefs
which they were entitled to ask in the case
in addition to the declaration. Such a suit
would be hit by Section 42 of the Specific
Relief Act and we would be quite in a
position to deny them the declaration
without these specific reliefs. Indeed they
had only to ask for the setting aside of
the order.”

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In this case, permanent lease was granted by defendant No.2 in favour of defendant No.3, but the plaintiff did not question the same though the suit

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2 AIR 1971 SC 761

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was filed on 6.6.98 after grant of lease in favour of
the appellant/defendant No.3 as permanent lease was
granted in favour of defendant No.3 on 17.3.89, as
such, the suit is barred by proviso to Section 34 of
the Act of 1963 as the plaintiff ought to have
questioned the order dated 17.3.89 in order to get
the relief particularly when it is his case that
order dated 17.3.89 is bad and unsustainable in law.
Similarly the suit is further barred as it is his
case that in June-July, 1998 he has been dispossessed
from the suit premises as it was amended in para-10A
of the plaint, but he did not seek relief of
possession being out of possession. Therefore, the
suit is also barred by proviso to Section 34 of the
Act of 1963 as he ought to have sought specific
relief of possession by amending the plaint, if any,
being out of possession of the suit land.

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The plaintiff has also claimed that he has acquired title by way of adverse possession.

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The Supreme Court in the matter of Ravinder Kaur

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Grewal(supra) has held as under:-

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“56. There is the acquisition of title in
favour of plaintiff though it is negative
conferral of right on extinguishment of the
right of an owner of the property. The
right ripened by prescription by his
adverse possession is absolute and on
dispossession, he can sue based on “title”
as envisaged in the opening part under
Article 65 of the Act. Under Article 65,

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the suit can be filed based on the title
for recovery of possession within 12 years
of the start of adverse possession, if any,
set up by the defendant. Otherwise right to
recover possession based on the title is
absolute irrespective of limitation in the
absence of adverse possession by the
defendant for 12 years. The possession as
trespasser is not adverse nor long
possession is synonymous with adverse
possession.

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60. The adverse possession requires all the
three classic requirements to co-exist at
the same time, namely, nec-vi i.e. adequate
in continuity, nec-clam i.e., adequate in
publicity and nec-precario i.e. adverse to
a competitor, in denial of title and his
knowledge. Visible, notorious and peaceful
so that if the owner does not take care to
know notorious facts, knowledge is
attributed to him on the basis that but for
due diligence he would have known it.
Adverse possession cannot be decreed on a
title which is not pleaded. Animus
possidendi under hostile colour of title is
required. Trespasser’s long possession is
not synonymous with adverse possession.
Trespasser’s possession is construed to be
on behalf of the owner, the casual user
does not constitute adverse possession. The
owner can take possession from a trespasser
at any point in time. Possessor looks after
the property, protects it and in case of
agricultural property by and the large
concept is that actual tiller should own
the land who works by dint of his hard
labour and makes the land cultivable. The
legislature in various States confers
rights based on possession.”

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As such, the first appellate Court has committed illegality in granting decree in favour of the plaintiff overlooking the fact that the suit is barred by proviso to Section 34 of the Act of 1963 as the plaintiff neither questioned the order granting

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permanent lease in favour of the appellant/defendant
No.3 nor sought relief of possession being not in
possession over the suit land.

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For the foregoing reasons, the impugned judgment and decree passed by the first appellate Court is set aside and that of the trial Court is hereby restored and thereby the suit would stand dismissed.

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The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).

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A decree be drawn-up accordingly.

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 Sd/-

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(Sanjay K. Agrawal)
 Judge

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B/-

Arun Pathak v. Gyani Hajrat Singh (Deceased) Through Lega Heir- (a) Karamjit Singh

Case brief

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What did the court decide?

Arun Pathak v. Gyani Hajrat Singh (Deceased) Through Lega Heir- (a) Karamjit Singh

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