Nathu Lal vs Babulal and others

Sheel Nagu, J.—This second appeal u/s 100 of CPC assails the concurrent findings of two courts below whereby the suit filed for declaratory decree of title and permanent injunction in respect of suit property against the defendants has been rejected. The arguments of learned counsel for the rival parties are heard on the question of admission and the record of both the courts below is perused.

The plaintiff claimed the declaratory decree of title and permanent injunction on the basis of adverse possession of the suit land since 1957 when the plaintiff claimed that his father purchased the suit land for a consideration of Rs. 350/- in regard of which no registered document is available except for receipt of the said consideration and a deed of conveyance recorded on a plain paper which is not registered. The trial court found that besides the above said unregistered document certain applications were produced by the plaintiff in respect of his claim which had been filed before the Collector Guna. The plaintiff also claimed title on the basis of adverse possession but did not produce any revenue record in support of his continuous uninterrupted possession of the suit land. In addition to the said documentary evidence, the plaintiff recorded his statement before the trial court.

The trial court disbelieved the deed of conveyance recorded of 1957 on a plain paper which was unregistered. The trial court further found that basic ingredients of adverse possession which included exclusive continuous and undisturbed possession with the knowledge of real owner and communication of hostile title to the real owner was not proved. The factum of continuous and uninterrupted possession could not be proved by the plaintiff.

Learned counsel for appellant has basically contended that even if the title of the suit land could not be proved by the plaintiff, the plaintiff was at least entitled to a decree of permanent injunction by restraining the defendants from ousting the plaintiff from the suit land without following due process of law as held by the Apex Court in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, and Shavaram @ Seva Vs. Dhapubai and Others, In support of this contention the counsel for plaintiff has further relied upon the contents paragraph 12 of deposition of DW/1 and contents of paragraph No. 5 of deposition of DW/2. Further reliance by the plaintiff has been placed on the decision of Shanti Kumar Panda Vs. Shakuntala Devi, & Devendra & others v. State of Uttar Pradesh & another 2009 Cr.L.R. (SC) 783.

Per contra learned counsel for defendants/respondents has contended that the plaintiff has failed to establish the basic ingredients of adverse possession as per the law laid down by the Apex Court in the case of G. Krishna Reddy v. Sajjappa (D) by L. Rs., & another AIR 2011 SC 2762, Laxman Prasad v. Yagya Narain 1989-1 MPWN S.N. (283) & Komal Bai v. Firm Chhajulal Fattulal 1998 (1) MPWN S.N. 163. It is further contended by the counsel for defendants/respondents that perusal of paragraphs No. 2 and 5 of the plaint indicates that contradictory pleadings have been made as on one hand in paragraph 2 the plaintiff alleges the sale to have taken place in the year 1957 whereas in paragraph No. 5 of the plaint the averments relates to agreement to sale. Thus the learned counsel for defendants contends that the plea of adverse possession was not made out in the given facts and circumstances.

From the perusal of the order of trial court and the first appellate court, it is evident that the basic ingredients necessary for proving the case of adverse possession were missing in the present case as the plaintiff failed to prove exclusive continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner and existence of hostile title duly communicated to real owner as provided by the Apex Court in the case of Krishnamurthy S. Setlur Dead by LRs. Vs. O.V. Narasimha Setty and Others, . The trial court and first appellate court thus rightly rejected the claim for adverse possession. It is further seen from the record that no substantial document proving the title of the plaintiff was produced in evidence. The unregistered deed has no value in the eyes of law. Moreover, the plaintiff did not file any revenue record to even show that he was in continuous and undisturbed possession of the suit land. Thus the claim of the plaintiff of seeking decree for declaration of title and permanent injunction could not be proved. Accordingly the first appellate court rightly upheld the decree passed by the trial court.

Reliance placed by the Appellate Court on the decision in the case of Shanti Kumar Panda Vs. Shakuntala Devi, is distinguishable on fact as the factual matrix before the Apex Court in the said case pertained to the effect of proceeding under Sections 145 and 146 of Cr.P.C. of attachment, over the proceedings in a civil suit pertaining to the same property. So far as the other case of Devendra and others is concerned the same is also inapplicable to the facts and circumstances of the present case as the said case before the Apex Court laid down that the proceedings under Sections 144 and 145 of Cr.P.C, do not have any binding effect on a civil proceedings pertaining to the same property and also that the principle of res judicata is inapplicable to the criminal proceedings. Thus the said judicial pronouncements cited by the counsel for appellant are of no avail.

Before parting it would be necessary to deal with the contention of learned counsel for appellant that even if the claim for title over the suit land was not established, the plaintiff was entitled to a decree of permanent injunction. Learned counsel for appellant has cited the decision in the case of Shavaram @ Seva Vs. Dhapubai and Others, in support of this contention. A perusal of the said decision indicates that single Bench of this Court while rendering the decision in Shava Ram case placed reliance upon the decision of Apex Court in the case of Rame Gowda (supra) which inter alia provided that even for a trespasser to be entitled to a decree of permanent injunction restraining rightful owner from dispossessing the trespasser without following due process of law, it is essential that the trespasser first proves peaceful settled possession in his favour. In the instant case the plaintiff has failed to prove settled possession and therefore, the said decision of this court or the Apex court in the case of Rame Gowda (supra) are of no avail to the plaintiff. In view of the above, this court is compelled to hold that the appellant has failed to make out any case of arising of any substantial question of law much less the ones proposed in the memo of second appeal and therefore the instant second appeal deserves to be and is therefore dismissed. No order as to cost.