CASE NO.:
Appeal (civil) 7579 of 1999
PETITIONER:
Bondar sIngh & Ors.
RESPONDENT:
Nihal Singh & Ors.
DATE OF JUDGMENT: 04/03/2003
BENCH:
R.C. Lahoti & Arun Kumar.
JUDGMENT:
J U D G M E N T
ARUN KUMAR, J.
This appeal is directed against the judgment and decree dated
16th November, 1998 passed by the Indore Bench of the High Court
of Madhya Pradesh. As a result of the decision of the High Court the
suit filed by the plaintiffs/respondent was decreed. The plaintiffs had
filed a suit for declaration that they had become owners of the lands
in suit by adverse possession and for injunction to restrain the
defendants from interfering with the plaintiffs' possession of the suit
lands. The trial Court had decreed the suit, however, the appeal filed
by the defendants against the trial court judgment was allowed by the
Additional District Judge, Dhar, M.P. and the suit was ordered to be
dismissed. Further an appeal filed by the plaintiffs against the said
judgment of the Additional District Judge was allowed by the High
Court and the suit was finally decreed.
Briefly the facts are that the plaintiffs (respondents herein) claim
title to the land in suit on the basis of the plea that they had become
its owners by adverse possession. The land was owned by one Fakir
Chand predecessor in interest of the appellants herein (defendants in
the suit). Fakir Chand sold the land to Tola Singh, predecessor in
interest of the plaintiffs by an unstamped and unregistered sale deed
dated 9.5.1931. The plaintiffs claim to have entered into possession
of the land on the basis of the said sale deed and they claim to be
continuously in possession since then. The defendants tried to
dispossess the plaintiffs which led to the present suit being filed by
them on 15.4.1972. In the written statement filed by the defendants
they denied the sale of land by their father Fakir Chand to Tola Singh.
They denied possession of the plaintiffs of the suit land. They also
took the plea that the alleged sale deed was false, fictitious and
without consideration. According to the defendants, their father was
in possession of the lands till his death. After the death of their
father, their mother had given possession of the land to Tola Singh
for purpose of cultivation in order to earn some money for supporting
her family. According to the defendants they had taken back
possession of the land from Tola Singh in the year 1957-58. They
also pleaded that after the death of Fakir Chand, the land had been
mutated in their names in the revenue records to the knowledge of
the plaintiffs. The plea of adverse possession was denied by stating
that actually the defendants were in possession of the land and there
was no question of adverse possession of the land by the plaintiffs
qua the suit land.
The main question for consideration in the present suit is as to
whether the plaintiffs were in hostile continuous possession of the suit
lands by virtue of which they had perfected their title to the land by
adverse possession. Both parties claim to be in possession of the
suit land. While considering the above question, the Court will also
have to look into the plea raised by the learned counsel for the
appellants/defendants that the plaintiffs had come in possession of
the suit land for a brief period after the death of Fakir Chand, father of
the defendant as "Shikmi" that is sub-tenants. The plea of sub-
tenancy was as such not raised in the written statement nor any issue
was framed by the trial Court in this connection. No particulars of
alleged sub-lease were given. Not even date of creation of alleged
sub-lease was stated. The defendants have tried to build an
argument based on plea of sub tenancy (shikmi)at appellate stage.
In support of this plea they rely on certain entries in the revenue
records. Since this plea pre-supposes possession of the plaintiffs, the
defendants took the stand that they had taken back the possession
of the land from the defendants.
Before we proceed further it is necessary to notice a preliminary
argument raised by the learned counsel for the appellants. It was
contended that the question of possession is a question of fact and
the High Court while exercising power under Section 100 of the Code
of Civil Procedure, had no jurisdiction to upset the findings on this
question recorded by the lower appellate Court. An appeal under
Section 100 C.P.C. can be entertained by the High Court only on a
substantial question of law. There can be no quarrel with this legal
proposition. The scope of powers of High Court under Section 100
C.P.C is a matter of settled law. The learned counsel for the
appellant cited several judgments in support of his contention. We
do not consider it necessary to discuss these decisions because so
far as the question of powers of High Courts under Section 100
C.P.C. is concerned, it needs no discussion. If the findings of the
subordinate courts on facts are contrary to evidence on record and
are perverse, such finding can be set aside by the High Court in
appeal under Section 100 C.P.C. A High Court cannot shut its eyes
to perverse findings of the courts below. In the present case the
findings of fact arrived at by the lower appellate court were contrary
to evidence on record and, therefore, perverse and the High Court
was fully justified in setting aside the same resulting in the appeal
being allowed and suit being decreed.
The main question as we have already noted is the question
of continuous possession of the plaintiffs over the suit lands. The
sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in
favour of Tola Singh, the predecessor interest of the plaintiff, is an
admitted document in the sense its execution is not in dispute. The
only defence set up against said document is that it is unstamped and
unregistered and therefore it cannot convey title to the land in favour
of plaintiffs. Under the law a sale deed is required to be properly
stamped and registered before it can convey title to the vendee.
However, legal position is clear law that a document like the sale
deed in the present case, even though not admissible in evidence,
can be looked into for collateral purposes. In the present case the
collateral purpose to be seen is the nature of possession of the
plaintiffs over the suit land. The sale deed in question at least shows
that initial possession of the plaintiffs over the suit land was not illegal
or unauthorized. It is significant to note that the sale deed is dated
9.5.1931 and Fakir Chand died somewhere in the year 1949-50.
During his lifetime Fakir Chand never disputed plaintiffs' title or
possession of the suit land. There is other reliable evidence on
record which establishes that the plaintiffs have been in continuous
possession of the land in question. There is a notice dated 16.4.1956
Exhibit P.6. The notice was issued on behalf of the defendants and is
addressed to the predecessor interest of the plaintiffs. By the notice
the defendants called upon the plaintiffs to hand over possession of
the suit land to them. According to the notice, the plaintiffs were
trespassers on the suit land and were liable to hand over its
possession to the defendants. This notice is an admission on the
part of the defendants that the plaintiffs were in possession of the suit
land at least on the date of the notice i.e. 16th April, 1956. The notice
was followed by an application dated 8th May, 1956 (Exhibit P.3). filed
by the defendants under Section 58 of the Madhya Bharat Land
Revenue and Tenancy Act, 1950 before the revenue authorities. In
the said application the defendants admit that the land in question
was in possession of the plaintiffs since the lifetime of their father. It
is further admitted that the land was being cultivated by the plaintiffs.
It was prayed in the said application that the plaintiffs be declared
trespassers over the suit land and possession of the land be given to
the defendants. In their reply to the application, the present plaintiffs
denied the allegation that they were trespassers on the suit land, they
refer to the sale deed of 9.5.1931 by Fakir Chand in favour of their
predecessor. Thus the plaintiffs were all along asserting that they
were in possession of the land in their own right. The Tehsildar vide
his order dated 3rd October, 1959 dismissed the said application of
the defendants. He relied on an admission on the part of Poonam
Chand, eldest son of Fakir Chand that the present plaintiffs were in
possession for the last 26-27 years. Relying on the said statement
the revenue authorities held that since possession of the present
plaintiffs was continuing for last 26-27 years they could not be
dispossessed from the suit land. The application of the defendants
was dismissed. The defendant filed an appeal against the said order
which was also dismissed on 6.8.1962. A copy of the order of the
Tehsildar is Exhibit P.8 while a copy of the order of the appellate
authority i.e. S.D.O. is Exhibit P.9. These judgments of the revenue
authorities establish that at least till 1962 the plaintiffs were in
possession of the suit land. They also totally nullify the assertion of
the defendants in their written statement in the present suit that they
had taken possession of the suit land in 1957-58. If they had taken
possession of the suit land in 1957-58 why were they pursuing the
matter before the revenue authority till 1962 when the appeal was
contested before the S.D.O. and the decision of the S.D.O. was given
on 6.8.1962?
It appears that having failed to obtain possession of the suit
land through lawful means, the defendants tried to dispossess the
plaintiffs forcibly which led to the present suit being filed on
15.4.1972. The claim of the defendants regarding taking possession
of suit land from plaintiffs in 1957-58 having been found to be false, it
follows that the defendants never came into possession of the suit
land. Another significant conclusion which follows from these facts is
that the defendants started asserting their title to the suit land since at
least 1956 when they issued the notice Exhibit P.6 while the plaintiffs
have been denying their title to the suit land and were setting up their
own title to the same. This lends support to the plea of adverse
possession set up by the plaintiffs. It will be seen from this clear and
clinching evidence on record that the plaintiffs were in continuous and
uninterrupted possession of the suit land since 1931 and they had
been setting up a hostile title thereto as against the defendants. The
defendants were asserting their title to the land since 1956. They had
however failed to get possession of the suit land. The plea of
adverse possession raised by the plaintiff is thus clearly established.
As regards the plea of sub tenancy (shikmi) argued on behalf of
the defendants by their learned counsel, first we may note that this
plea was never taken in the written statement the way it has been put
forth now. The written statement is totally vague and lacking in
material particulars on this aspect. There is nothing to support this
plea except some alleged revenue entries. It is settled law that in the
absence of a plea no amount of evidence led in relation thereto can
be looked into. Therefore, in the absence of a clear plea regarding
sub tenancy (shikmi) the defendants cannot be allowed to build up a
case of sub tenancy (shikmi). Had the defendants taken such a plea
it would have found place as an issue in the suit. We have perused
the issues framed in the suit. There is no issue on the point.
The alleged revenue entries relied upon by defendants do not
support the plea of the defendants that the plaintiffs' possession of
the land was as shikmi tenants. A significant point which militates
against the argument that the plaintiffs were shikmi tenants on the
suit land is that the mother of the defendants is said to have inducted
the plaintiffs as sub-tenants. The mother of the defendants was alive
at the relevant time and her evidence on this point would have been
the best evidence. She could have been produced in evidence in
support of this plea. The defendants, rather than producing her in
evidence, created a drama by moving an application for examining
their mother as a witness on commission. The trial Court passed an
order appointing a Commissioner to record her evidence on
commission. However, when the Commissioner went to record the
evidence of the mother, it was represented to him that she was totally
deaf and dumb and therefore, the Commissioner returned without
recording her statement. The plaintiffs thereafter moved an
application that the mother of the defendants was completely hale
and hearty and in order to avoid her being cross-examined by the
counsel for the plaintiffs she was purposely not produced as a
witness. Apart from this, even Puran Chand, the eldest brother of the
defendants was not examined as a witness. The defendants were
said to be very young at the time of death of their father. Punam
Chand is the eldest son of Fakir Chand. He was also kept away from
the court in these proceedings even though he was arrayed as a
defendant in the suit. The written statement filed by the defendants
was a joint written statement by all the defendants except Punam
Chand. Punam Chand did not file a written statement. The best
evidence in relation to the plea of shikmi, though available, was kept
away from the court. It follows from the above that the argument that
the plaintiffs were shikmi tenants in the suit land is wholly devoid of
any merit. The same has therefore to be rejected.
Regarding the plea of the defendants that they had taken
possession of the land in suit from the plaintiffs somewhere in the
year 1957, the High Court has aptly remarked that the defendants
were required "to open their mouth before the revenue authorities if
not in 1957 at least in the year 1962 to show to the revenue
authorities that they had obtained possession." The High Court has
further found after scrutinizing the record that the defendants did not
care to file even a single revenue entry for the period between 1956
and 1962 that they had been recorded in possession of the suit lands.
Therefore, the High Court concluded that the finding recorded by the
lower appellate Court was based on surmises and conjecture and
was contrary to the evidence on record and the law. The High Court
came to a definite finding that Tola Singh predecessor in interest of
the plaintiffs came in possession of the suit land in the year 1931 and
continued to be in possession thereof till the date the present suit was
filed in 1972.
The defendants have tried to take advantage of the fact that a
receiver had been appointed with respect to the suit land in
proceedings under Section 145 of the Code of Criminal Procedure.
According to the defendants the possession of the receiver was on
their behalf. This is not correct. The plaintiffs had become
bhoomiswami with respect to the suit land prior to the appointment of
the receiver. Therefore, receiver's possession could not be said to be
on behalf of the defendants.
The result of the above discussion is that there is no merit in
this appeal. The stand taken by the defendants/appellants is totally
untenable. The appeal is dismissed leaving the parties to bear their
respective costs.
