Gendalal (Decd) Thr. L.Rs. Chaganlal And Ors vs Jai Narayan Mathur And Ors

The present review petition is filed seeking review of the judgment dated 25.07.2017 by which Second Appeal No.187 of 1998 has been dismissed.

[2] Facts of the case, in short, are as under :-

(a) The present review petitioners are the legal representatives of original plaintiff Gendalal who filed the suit for declaration of title by way of adverse possession of the suit land comprising Survey Nos.218 area 1.10 acre, 219 area 21.94 acre and 220 area 1.6 acre of Village Tamalpur, Tehsil Depalpur, District Indore [hereinafter referred to as "the suit land"]. The suit land was initially owned by Jagannathsingh and others. According to the plaintiff - Gendalal he purchased the suit land from Jagannathsingh for a consideration of Rs.4,000-00. According to him he paid the entire sale consideration and the possession was handed over to him, however, registered sale-deed could not be executed but the sale was complete.

(b) When the dispute was arose, Late Gendalal along with Ramchandra filed the suit for declaration and permanent injunction. During pendency of the suit, plaintiff Gendalal died and his legal representatives were brought on record. Jagannathsingh had also expired and in his place his legal representatives were impleaded as defendants.

(c) According to the plaintiffs they are in possession over the suit land since 1962 by virtue of the oral sale and since their possession is continuous, uninterrupted, peaceful, openly and was hostile to the title of original owner defendants with their knowledge, therefore, they have perfected the title by way of adverse possession.

(d) The defendants contested the suit on the ground that the suit land was given on lease for some consideration to the plaintiffs in the year 1966. The possession had been taken back from them in the year 1970 and since then they are in possession over the suit land.

(e) Vide judgment and decree dated 05.08.1997, Civil Judge, Class-II, Depalpur, District Indore decreed the suit in favour of the plaintiffs by holding that they have acquired title on the basis of adverse possession and also directed for mutation of their names in the revenue records subject to payment of registration fee.

(f) Being aggrieved by the aforesaid judgment and decree, the plaintiffs filed first appeal challenging the condition of payment of registration fee; whereas the defendants filed First Appeal No.11-A/1997 challenging the finding of declaration of title by way of adverse possession.

(g) By judgment and decree dated 15.01.1998, 16th Additional District Judge, Indore has allowed the first appeal filed by the defendants and dismissed the first appeal filed by the plaintiffs.

(h) Being aggrieved by the judgment dated 15.01.1998 passed in first appeal filed by the defendants, the plaintiffs filed Second Appeal No.187 of 1998.

[3] This Court admitted second appeal for final hearing on the following substantial question of law :-

"Whether the appellate Court below erred in law in holding that the plaintiffs-appellants have not perfected their title by adverse possession even when their possession was in pursuance of oral and invalid sale ?"

[4] By judgment dated 25th July, 2017 this Court dismissed the second appeal with limited direction that the plaintiffs are in possession over the suit property for last 26 years, hence they shall not be evicted without following due process of law.

[5] Now the plaintiffs have filed the present review petition on the ground that they filed the civil suit claiming title on the basis of oral sale. It was not the case of the defendants that the suit is not maintainable for the relief of declaration of title by way of adverse possession. The learned Single Judge of this Court has dismissed the appeal placing reliance over the judgment passed by the Apex Court in the case of Gurudwara Sahib v/s Gram Panchayat Village Sirthala [2014 (3) MPLJ 36]. No substantial question of law was framed by this Court in respect of the maintainability of the suit and the second appeal is liable to be decided only on the substantial question of law framed therein, hence the impugned judgment dated 25th July, 2017 is liable to be reviewed.

[6] We have heard Shri V.K.Jain, learned Senior Counsel for the review petitioners and perused the record.

[7] Shri V.K.Jain, learned Senior Counsel argued that this Court admitted the second appeal only on the substantial question of law that whether appellants/ plaintiffs have perfected their title by way of adverse possession even when their possession was in pursuance of oral and invalid sale ? But the Single Judge of this Court has dismissed the second appeal on the ground of maintainability of the suit in the light of the judgment passed by the Apex Court. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of Bondar Singh v/s Nihal Singh [AIR 2003 SC 1905] in which the Apex Court has held that the hostile continuous possession on the basis of unregistered and unstamped sale-deed is also an adverse possession. He has also placed reliance over the judgment passed by the Full Bench of Karnataka High Court in the case of Narasimhasetty v/s Padmasetty [AIR 1998 Karnataka 389 (FB)] in which it has been held that the person in part performance of contract is in possession, he is entitled to protect his possession even if the relief of specific performance is barred by time. Shri Jain has also placed the reliance over the judgment passed by the Apex Court in the case of Syeda Rahimunnisa v/s Malan Bi [(2016) 10 SCC 315] in which it is held that decision in second appeal is required to be confined to only substantial question of law, any finding without framing substantial question of law in that regard would amount to decision without jurisdiction.

[8] In sum and substance the submission of Shri Jain is that the learned Single Judge of this Court has decided the appeal on the issue other than the substantial question of law framed in the second appeal. The aforesaid submission is absolutely misconceived. From para 16 to 20, the Single Judge of this Court has answered the substantial question of law framed in the second appeal. After placing reliance over the judgment passed in the case of Karnataka Board of Wakf v/s Govt. of India [(2004) 10 SCC 779]; Tribhuvan Shankar v/s Amrutlal [(2014) 4 SCC 788] and judgment passed in the case of Achal Reddy v/s Ramakrishna Reddiar [AIR 1990 SC 553] this Court came to the conclusion that mere possession or user or permissive possession does not even remotely come near the spectrum of adverse possession and that to be adverse, as the possession must be actual, open, notorious, exclusive and continuous for the requisite frame of time, as provided in law.

[9] Therefore, this Court has answered the substantial question of law and held that the plaintiff has not perfected their title by way of adverse possession even on the basis of oral and invalid sale. After answering the aforesaid substantial question of law, this Court has also observed that the plea of adverse possession is a shield for defence and not a weapon for an attack as held by the Apex Court in the case of Gurudwara Sahib (supra). Therefore, this Court has rightly answered the substantial question of law framed in this appeal and no other substantial question of law has been decided. No case for review is made out.

[10] The review petition is accordingly dismissed.