Gyarsibai vs Membai and Others

K.K. Trivedi, J.—Heard on the question of admission. This second appeal u/s 100 of the CPC is directed against the judgment and decree dated 30.08.2000 passed in Civil Appeal No. 1-A/1998 arising out of judgment and decree dated 03.12.1997 passed in Civil Suit No. 108-A/1996 by the Additional Civil Judge, Seoni.

The appellant/plaintiff filed a civil suit seeking declaration of title and permanent injunction against the respondents/defendants on the ground that the original plaintiff entered into an agreement for sale of the suit land for a consideration of Rs. 500/- from the original defendant No. 1 Bhikam Singh. In terms of the agreement, on payment of amount, the original plaintiff was put in possession of the land. By virtue of such a permissive possession, she cultivated the land and when the sale-deed was not executed, possession was not taken back from the original plaintiff. Thus, within the knowledge of the original defendant, she remained in possession of the land in suit and has, thus, perfected her title by adverse possession. Such a claim made by the appellant was denied by the original defendant and a written statement was filed stating that no such agreement was executed. In fact the original plaintiff was not put in possession. The original plaintiff was never in possession and, therefore, such a claim made by her is wholly unjustified. In fact with malafide intention saying that there was an agreement to sale and the original plaintiff was put in possession, the suit is filed to grab the land of the respondents/defendants.

The Trial Court framed the issues, recorded the evidence and came to the conclusion that the appellant has failed to prove that there was any agreement or that appellant was ever put in possession of the land. This fact was not proved that the appellant was in hostile possession of the land within the knowledge of the respondents/defendants and, therefore, the plea of adverse possession was not found proved. The suit was dismissed. The original plaintiff preferred an appeal against such judgment and decree and since the appeal has also been dismissed, this second appeal is required to be filed.

It is vehemently contended by learned Counsel for the appellant that there was ample evidence available on record to show that there was an oral agreement in between the original plaintiff and the original defendant. This oral evidence has not been properly scrutinized nor evaluated in appropriate manner and it has wrongly been said that the appellant was in possession of the land. The fact remains that the documentary evidence to the effect that the land in fact was belonging to the original defendant was proved and, therefore, it was to be treated as if the original plaintiff was put in possession pursuant to the oral agreement for sale.

The entire submissions made by learned Counsel for the appellant are misconceived. Firstly the documentary evidence no where record the fact that there was any such agreement in between the original plaintiff and the original defendant. Certain revenue entries were produced showing that the land was recorded in the name of original defendant and in some part it is stated that by virtue of sale the original plaintiff was put in possession. However, such entries were of the year 1969-70 to 1983-84. Thereafter, if the sale-deed was not executed within a period of 3 years, what action was taken by the original plaintiff for getting the sale-deed executed, is not clear. Statements of witnesses indicate that the original plaintiff was claiming that there was some sort of agreement to sale, which fact was categorically denied by the original defendant in his Court statement. In absence of any evidence, it could not be said that there was any such agreement and the original plaintiff was put in possession of the land. Even otherwise, for approving the adverse possession, it was to be shown by the plaintiff that all attempts were made for getting the sale-deed executed but since such a sale-deed was not executed by the original defendant, she claimed to be in possession of the suit land against the wish of the original defendant. Not a whisper is there in this respect in the entire statements of witnesses produced by the original plaintiff. Therefore, if the two Courts have held that plea of adverse possession is not made out, no error of law is committed by them. No substantial question of law arises in this appeal for consideration. There is no substance in the appeal, which fails and is hereby dismissed.