Supreme Court of India
KESAR BAI versus GENDA LAL & ANR. on 14 October 2022
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Issues
564
[2022] 13 S.C.R. 564
SUPREME COURT REPORTS
[2022] 13 S.C.R.
KESAR BAI
A
v.
GENDA LAL & ANR.
(Civil Appeal No. 7129 of 2022)
BOCTOBER 14, 2022
[M. R. SHAH AND KRISHNA MURARI JJ.]
Suit – Suit for declaration of ownership and permanentinjunction – On the basis of registered sale deed and also on basisof adverse possession – Trial Court dismissed the suit – The FirstCAppellate held that the plaintiffs-respondent did not get any righton basis of the sale deed – However, the First Appellate Courtdecreed the suit for title on basis of adverse possession andrestrained the defendant-appellant from interfering with possessionof the plaintiffs-respondent – Second appeal before High CourtDwhich framed substantial question of law on adverse possessionand decided the same in favour of appellant, however, thereafterdid not interfere with the judgment passed by the First AppellateCourt – Held: All the Courts below negated the claim of originalplaintiffs of ownership on basis of registered Sale Deed – Therefore,the only claim on behalf of plaintiffs was the plea of adverseEpossession – So far as plea of adverse possession was concerned,the High Court had specifically framed a substantial question oflaw and as such held the same in favour of appellant-defendant –High Court specifically observed and held that the plea of ownershipbased on sale deed and plea of adverse possession, both, wereFcontrary to each other and the plaintiffs could not be permitted totake both the pleas at the same time – Therefore, even as per theHigh Court, the claim of plaintiffs on basis of the adverse possessionwas not tenable – In that view of the matter and once the substantialquestion of law on adverse possession was held in favour ofappellant- defendant and the title/ownership claimed on basis ofGSale Deed was negated by all the Courts below, thereafter thepossession/alleged possession of plaintiffs could not have beenprotected by passing a decree of permanent injunction in favour ofthe plaintiffs – Under the circumstances, the High Court materiallyerred in confirming the judgment passed by the First AppellateHCourt.564
Allowing the appeal, the Court
HELD: The High Court has specifically observed and heldthat the plea of ownership based on sale deed and plea of adversepossession, both, are contrary to each other and the plaintiffscannot be permitted to take both the pleas at the same time.Therefore, even as per the High Court, the claim of the plaintiffson the basis of the adverse possession was not tenable. In thatview of the matter and once the substantial question of law onadverse possession was held in favour of the appellant – originaldefendant No.1 and the title/ownership claimed on the basis ofthe Sale Deed dated 31.08.1967 (Ex.P.1) was negated by all theCourts below, thereafter the possession/alleged possession ofthe plaintiffs could not have been protected by passing a decreeof permanent injunction in favour of the plaintiffs. Under thecircumstances, the High Court has materially erred in dismissingthe appeal and confirming the judgment and order passed by theFirst Appellate Court. [Para 5][567-H; 568-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7129of 2022.
From the Judgment and Orders dated 02.03.2022 of the HighCourt of Madhya Pradesh at Jabalpur in Second Appeal No. 8 of 1999.
Arjun Garg, Shobhit Jain, Aakash Nandolia, Ms. Sagun Srivastava,Advs. for the Appellant.
Ms. Swarupama Chaturvedi, AAG, Sunny Choudhary, ManojKumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Madhya Pradesh Principal Seatat Jabalpur in Second Appeal No. 8 of 1999, the original defendant haspreferred 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 suitseeking declaration of ownership and permanent injunction against thedefendant with regard to the suit property. The original plaintiffs claimed A
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Athe title/ownership on the basis of the registered Sale Deed executed on31.08.1967 in favour of their father and husband Dariyab Singh. Theplaintiffs 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 FirstBAppellate Court. The learned First Appellate Court though held that theplaintiffs shall not get any right on the basis of the Sale Deed dated31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observingthat the plaintiffs are in possession of the suit land. The First AppellateCourt also held that therefore, the plaintiffs have perfected their title byway of adverse possession. The First Appellate Court decreed the suitCfor title on adverse possession and issued the decree of permanentinjunction restraining the defendant No.1 – appellant herein frominterfering 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:- D“Whether the First Appellate Court has erred in holding that theplaintiff has perfected his title on the disputed land by adversepossession?”
2.3 Though the High Court answered the aforesaid substantialquestion of law in favour of the appellant, however, thereafter did notEinterfere with the judgment and order passed by the First Appellate Courtby observing that the First Appellate Court has specifically given thefinding that the plaintiffs are in possession of the suit land since afterexecution of the Sale Deed dated 31.08.1967. Consequently, the HighCourt has dismissed the said second appeal. The impugned judgmentFand order passed by the High Court dismissing the second appeal is thesubject matter of present appeal.
3. Learned counsel appearing on behalf of the appellant – originaldefendant No.1 has vehemently submitted that as such the plaintiffsfiled the suit for declaration claiming ownership/title on the basis of theGregistered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed theownership by adverse possession. It is submitted that all the Courts belowhad negated the claim of the original plaintiffs on the basis of the registeredsale deed. It is submitted that thereafter the only question on behalf ofthe plaintiffs was the claim on the basis of the adverse possession. It issubmitted that in the impugned judgment and order, the High Court hasH
though held the substantial question of law on adverse possession infavour of the appellant by observing that the plea of ownership based onsale deed and plea of adverse possession, both, are contrary to eachother and plaintiffs cannot be permitted to take the same plea at thesame time, thereafter the High Court has dismissed the appeal andconfirmed the judgment and order passed by the First Appellate Courtdecreeing the suit for title and also passed the decree for permanentinjunction.
3.1 It is vehemently submitted by the counsel on behalf of theappellant 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 possessionwas held in favour of the appellant by the High Court, thereafter theoriginal plaintiffs shall not be entitled to the decree of permanent injunction.
3.2 It is further submitted that the High Court has failed toappreciate that once the plaintiffs are not found to be the owner, theycannot claim their title by way of adverse possession. Their possessionover the land in question can only be in the nature of an encroacher. It issubmitted that therefore both, the First Appellate Court as well as theHigh Court have seriously erred in granting the permanent injunction infavour of the plaintiffs and against the defendants.
4. Ms. Swarupama Chaturvedi, learned AAG appearing on behalfof the respondent No.2 – State has submitted that she is appearing for aproforma respondent and therefore, has nothing to add.
5. Having gone through the impugned judgment and order passedby the High Court as well as the First Appellate Court and even that ofthe learned Trial Court, it appears that the original plaintiffs prayed for adeclaration and claimed the title/ownership on the basis of the Sale Deeddated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also claimedthe title by adverse possession. All the Courts below have negated theclaim of the original plaintiffs of ownership on the basis of the registeredSale Deed dated 31.08.1967 (Ex.P.1.) Therefore, the only claim on behalfof the plaintiffs was the plea of adverse possession. So far as the plea ofadverse possession is concerned, the High Court has specifically frameda substantial question of law (reproduced hereinabove) and as such hasheld the same in favour of the appellant – original defendant No. 1. TheHigh Court has specifically observed and held that the plea of ownership A
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Abased on sale deed and plea of adverse possession, both, are contrary toeach other and the plaintiffs cannot be permitted to take both the pleasat the same time. Therefore, even as per the High Court, the claim ofthe plaintiffs on the basis of the adverse possession was not tenable. Inthat view of the matter and once the substantial question of law onadverse possession was held in favour of the appellant – originalBdefendant No.1 and the title/ownership claimed on the basis of the SaleDeed dated 31.08.1967 (Ex.P.1) was negated by all the Courts below,thereafter the possession/alleged possession of the plaintiffs could nothave been protected by passing a decree of permanent injunction infavour of the plaintiffs. Under the circumstances, the High Court hasCmaterially erred in dismissing the appeal and confirming the judgmentand order passed by the First Appellate Court.
6. In view of the above and for the reasons stated above, presentappeal succeeds. The impugned judgment and order passed by the HighCourt passed in Second Appeal No. 8 of 1999 and the judgment andDorder passed by the First Appellate Court are hereby quashed and setaside and the judgment and decree passed by the learned Trial Courtdismissing the suit is hereby restored.
Present appeal is accordingly allowed. However, in the facts andcircumstances of the case, there shall be no order as to costs.
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Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Preetam Bharti, LCRA)
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