Rameshwar and Another vs Smt. Alka

Hon''ble Shri Justice N.K. Mody

Appeal is admitted on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case learned courts below were justified in dismissing the suit filed by the appellants when neither written statement was filed nor evidence was lead in rebuttal by the respondent ?

Whether in the facts and circumstances of the case learned courts below were justified in not decreeing the suit filed by the appellants so far as it relates to permanent injunction ?

Whether learned appellate court was justified in dismissing the application filed under Order 41 Rule 27 CPC ?

Being aggrieved by the judgment dated 26/9/2008 passed by VII ADJ, Ujjain in civil Appeal No. 147-A/06 arising out of judgment dated 25/7/2007 passed by I Civil Judge class-II, Ujjain in civil suit No. 147-A/06 whereby the suit filed by the appellants for declaration and permanent injunction was dismissed, was maintained, the present appeal has been filed.

Short facts of the case are that appellants filed a suit on 2/1/2006 before the learned trial court for declaration and permanent injunction alleging that appellant No. 1 is power of attorney of appellant No. 2. It was alleged that house No. 17/1 situated at Rajabhou Mahakal Marg, Bakshi Bazar, Ujjain is owned by the appellants and also in occupation of the appellants. It was alleged that Ghasiram was the grandfather of appellants and suit property remained as property of Ghasiram in his lifetime. It was alleged that Ranchhod was the son of Ghasiram and father of appellants. After the death of Ranchhod, appellants are co-owners of the suit property. It was alleged that Ranchhod was the habitual drinker. On 13/11/67 an agreement was got executed from Ranchhod by one Tilakraj S/o. Narayan according to which Tilakraj purchased the suit property for consideration of Rs. 14,000/-. It was alleged that on 4/9/79 Tilakraj sold a part of suit property for a consideration of Rs. 11,000/- to one Ramgopal by registered sale deed. It was alleged that in the registered sale deed which was executed by Tilakraj, it was mentioned that suit property was purchased from Ranchhod vide registered sale deed dated 9/11/67. It was alleged that in fact transaction took place between Tilakraj and Ranchhod was of loan, and mortgage deed was executed. It was alleged that this fact is evident from the agreement dated 17/5/79 whereby on account of agreement, Rs. 10,000/- was received by Tilakraj from Ramgopal and after three days Ramgopal entered into an agreement to sell the suit property for Rs. 25,500/- vide agreement dated 20/5/79 in favour of Gitabai. It was alleged that sale deed which was executed by Tilakraj in favour of Ramgopal was got executed by the appellant No. 1 and his mother Gitabai. It was alleged that on 17/12/79 Ramgopal sold the suit property to Narendra Kumar, husband of appellant No. 2 for a consideration of Rs. 19,000/- while the suit property was valuing Rs. 25,000/-. Further case of appellants was that supplementary agreement was also executed between Ramgopal and Narendra whereby right to recover the rent from tenant was given to Ramgopal. It was alleged that on 15/8/84, Ramgopal himself acknowledged that he had received a sum of Rs. 15,910/- as rent between 14/9/79 to 30/6/84. It was alleged that Ramgopal received a sum of Rs. 8000/-, 7000/- and 1393/- from Narendra, husband of appellant No. 2 on 2/11/82, 17/7/83 and 15/8/84 and issued receipts in that regard. It was alleged that on 6/3/85 receipt was executed by Ramgopal wherein it was alleged that entire mortgage amount has been received by him. It was alleged that thus, it is evident that transaction which took place was not the transaction of sale but was of mortgage and entire amount was paid. It was alleged that on 5/2/90 Ramgopal executed the agreement in favour of appellants and signed the same as vendor and also handed over the possession to appellant No. 2. It was alleged that object of the appellants was that since the suit property is ancestral property therefore it should be saved. It was alleged that with that object, entire amount was paid by the appellants. It was alleged that all the agreements which were executed by the persons from time to time are near relatives of appellant No. 1. It was alleged that at the time of execution of agreement in favour of appellant No. 2, Ramgopal handed over all the documents to appellant No. 2. It was alleged that after 5/2/90 till 21/6/99 when Ramgopal died, the appellants remained in possession as owner and no action was taken by deceased Ramgopal in his lifetime. Respondent is daughter of Ramgopal. It was alleged that since appellants are in peaceful possession continuously within the knowledge of respondent, therefore otherwise also the appellants are entitled to continue possession on the basis of hostile title. It was alleged that it be declared that document dated 4/9/79 which was executed by Ramgopal in favour of Tilakraj is not binding on the appellants and respondent be restrained from interferring into the possession of appellants. After the service, respondent remained ex-parte. Appellants examined themselves. Appellants submitted the documents Ex. P/1 to P/13 and also examined appellant No. 1 as PW-1, Shyamlal Makwana as PW-2 and Satyanarayan as PW-3. After hearing the parties learned trial court dismissed the suit, against which an appeal was filed which was also dismissed, hence this appeal.

Learned counsel for appellant submits that impugned judgment passed by learned courts below are illegal and deserve to be set aside. It is submitted that in absence of written statement and also in absence of any documentary evidence in rebuttal, there was no justification on the part of learned courts below in dismissing the suit filed by the appellants. Learned counsel further submits that appellants are admittedly in possession of the suit property, therefore again there was no justification in not granting the decree of permanent injunction in favour of appellants. It is submitted that appellants also moved an application under Order 41 Rule 27 CPC which has been dismissed without assigning any cogent reason. So far as refusal of decree of declaration is concerned, learned counsel placed reliance on a decision in the matter of Kali Vs. Ramadhar, 2004 (3) MPLJ 598 wherein plaintiff placed in possession of suit land in 1944 by executing an unregistered sale deed by the late ''R'' the recorded owner of suit land for Rs. 70/-, plaintiff since then continuously remained in possession of the suit land and in Khasra, possession of plaintiff was recorded on the basis of unregistered sale deed, this court held that finding of fact recorded by first appellate court neither perverse nor illegal. On the basis of the finding the appellate court rightly held that plaintiff is entitled to seek declaration of title and injunction restraining defendant/appellants from interferring in his possession of suit land and rightly allowed appeal decreeing suit of plaintiff and second appeal by defendant was dismissed." It is submitted that in view of aforesaid, appeal filed by the appellants be allowed and impugned judgment passed by learned courts below be set aside.

Learned counsel for respondent submits that after due appreciation of facts alleged and evidence adduced, learned courts below found that appellants have failed to prove the title over the suit property. Learned counsel submits that since appellants are claiming possession on the basis of agreement, therefore they are not entitled to claim the decree on the basis of hostile title. For this contention reliance is placed on a decision in the matter of Mohan Lal (deceased) through L.Rs. Kachru & ors. Vs. Mira Abdul Gaffar, AIR 1996 SC 910 wherein Hon. Apex Court has held that "party in possession of suit land pursuant to agreement, the plea of title by adverse possession is not available to him." Learned counsel further submits that question of possession on the basis of hostile title is a question of fact which cannot be interfered in Second Appeal. For this contention reliance is placed on a decision in the matter of Nand Kishore Vs. Ramesh Chandra, 2003 (4) MPHT 114 wherein this court has held that "claim of title on the strength of adverse possession, is a question of fact which needs to be tried on facts and evidence and findings recorded by courts below cannot be interfered in Second Appeal." Learned counsel submits that for claiming the decree on the basis of hostile title, it is necessary to establish that (a) on what date the appellants came into possession, (b) what was nature of possession, (c) whether factum of possession was known to other party I.e. respondent (d) how long their possession continued and (e) their possession was open and undisturbed. It is submitted that appeal filed by the appellants has no merits and same be dismissed.

From perusal of record it is evident that appellant has filed the document Ex. P/1 to P/13. P/1 is the power of attorney. P/2 is registered sale deed executed by Tilakraj in favour of Ramgopal dated 4/9/79 whereby property was sold by Tilakraj to Ramgopal for consideration of Rs. 11,000/-. Ex. P/3 is the agreement to sell between Tilakraj and Ramgopal dated 17/5/79 i.e.. prior to sale deed Ex. P/2 whereby Tilakraj agreed to sell the suit property for a consideration of Rs. 11,000/-. Ex. P/4 is the agreement of sell between Ramgopal and Gitabai, mother of appellant No. 1 which is dated 20/5/79 whereby Ramgopal agreed to sell the suit property for a consideration of Rs. 25,500/-. This agreement is also prior to the execution of sale deed Ex. P/2 whereby Ramgopal purchased the suit property for Rs. 11000/-. Ex. P/5 is second agreement dated 17/12/79 whereby Ramgopal agreed to sell the suit property to Narendra Kumar for Rs. 11,000/- who is husband of appellant No. 2. Supplementary agreement is also dated 17/12/99 between Ramgopal and Narendra whereby Ramgopal agreed to sell the property for a sum of Rs. 19,000/-. Ex. P/6 is the receipt dated 2/11/82 whereby a sum of Rs. 8,000/- was paid to Ramgopal. Ex. P/7 is receipt dated 17/12/93 whereby Rs. 7,000/- was paid to Ramgopal. Ex. P/16 is the agreement executed by Ramgopal in favour of appellant No. 2 on 5/2/90 wherein Ramgopal agreed to sell the suit property for a sum of Rs. 18,000/- and also agreed that sale consideration has been received. It was also agreed that appellant No. 2 shall be at liberty to get the sale deed executed as and when required. These documents were proved by the evidence adduced by the appellants. No evidence in rebuttal was adduced by the respondent. It is true that as per agreement Ex. P/3 appellants were at liberty to file the suit for specific performance as no time limit was fixed for execution of sale deed and no suit for specific performance has been filed by the appellants, but so far as permanent injunction is concerned, after going through the evidence on record and keeping in view the fact that no written statement was filed by the respondent and also no written submission was made before this court to the effect that is not disputed that appellants are in possession of the suit property, this court is of the view that learned courts below were not justified in refusing the decree of injunction in favour of appellants. Since appellants are claiming possession on the basis of agreement to sell, therefore this court is of the view that learned courts below were justified in dismissing the suit filed by the appellants so far as it relates to decree on the basis of adverse possession. This court is also of the view that learned appellate court committed no error in dismissing the application filed by the appellant under Order 41 Rule 27 CPC.

In view of this, the appeal filed by the appellants is allowed in part. The judgment and decree passed by learned courts below are modified to the extent that respondent shall not dispossess the appellants without following the process of law. No order as to costs.