Satyanarayan Jaiswal @ Santa And Ors vs Munder Devi And Ors

Ram Prasanna Sharma, J

As both the aforesaid appeals arise out of same judgment and decree, they are heard analogously and are being disposed of by this common

judgment.

2) Both the appeals are preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 11-4-1996 passed by the

Additional District Judge, Manendragarh, Civil District Sarguja, MP now CG in Civil Suit No.3/A of 1982 (11-A/84) wherein the said court decreed

the suit filed by the respondent No.1 late Smt. Muder Devi and Satyanarayan Gupta and declared owner of the land in which old house is constructed

to Munder Devi on plot N. 339 situated at Manendragarh, the then District Sarguja and ordered the appellants in both the appeals namely

Satyanarayan Jaiswal and Purshottam Jaiswal ( both died) and respondent Bhaiyalal and Sushil Kumar Jaiswal to deliver the possession of the said

property to respondent No.1 Munder Devi/her legal heirs.

Respondent late Munder Devi/plaintiff filed a suit for declaration of title and possession for the land in question on the ground that she purchased

the said property under registered sale dee executed in her favour on 17-9-1974 by respondent Sushil Kumar Jaiswal for cash consideration of

Rs.15,000/-. Original appellant namely Purshottam Jaiswal in First Appeal No. 210 of 1996 claimed the property on the ground that Sahodara Bai was

in continuous possession in the disputed plot from the year 1940 and she acquired title by adverse possession and said Sahodara Bai executed a will in

favour of Purshottam Jaiswal. It is further case of the said appellant that original plaintiff Munder Devi filed a suit against late Sahodara Bai for

eviction i.e., Suit No. 2-A/1977 and it was dismissed, therefore, suit brought by Munder Devi is barred by principle of res judicata and further by

provisions of the Limitation Act, 1963.

Original appellant in First Appeal No. 275 of 1996 Satyanarayan Jaiswal claimed his title on the ground that Sahodara Bai was in continuous

possession of the disputed plot from the year 1940 and because of her adverse possession she got the title, therefore, Sushil Kumar Jaiswal has no

right to transfer the disputed plot. It is further case of the said appellant that originally plot belongs to Jashoda Bai who died before 1940 and property

is devolved to the nearest co-parceners i.e., Mahadev and Sooraj Prasad Jaiswal. The said appellant Satyanarayan is also son of Mahadev and

Sahodara Bai is wife of Mahadev having equal share in the property. 5 From the record it appears that the suit for partition is filed by Sushil Kumar

Jaiswal against Bhaiyalal respondent No.4 for partition of land bearing survey Nos. 339 and 340 before the Court of Additional District Judge,

Ambikapur as Civil Suit No.1A/1971. It is decided that Sushil Kumar Jaiswal and Bhaiyalal are having equal share in both survey numbers i.e., Survey

No. 339 and 340 and that judgment and decree attained finality. It is also clear from Ex.P/8 that in execution proceeding Survey No. 340 is allotted to

Bhaiyalal Jaiswal as a whole and Survey No. 339 is allotted to Sushil Kumar Jaiswal as a whole and their names are mutated separately. There is

nothing to rebut the document (Ex.P/8), therefore, it is clear from the record that after actual partition respondent Sushil Kumar Jaiswal is the sole

owner of Survey No.339 who transferred the property for a cash consideration of Rs.15,000/- to Munder Devi as per Ex.P/1. It is a registered sale

deed executed by Sushil Kumar Jaiswal in favour of Munder Devi. On 17-9-1974 execution of sale deed is not challenged by Sushil Kumar Jaiswal

who is owner of the said property as per record of right. Claim of both the appellants namely Satyanarayan Jaiswal and Purshottam Jaiswal is based

on title acquired by Sahodara Bai by way of adverse possession. No Khasra entries were produced before the trial Court for establishing possession

of Sahodara Bai in the land in question. As per Section 117 of the MP/CG Land Revenue Code, 1959, khasra entries are presumed to be corrected

unless rebutted, but in the present case, not a single khasra entry was produced in favour of Sahodara Bai showing her possession over the property.

From the evidence, it is established that one suit was filed by Munder Devi against Sahodara Bai for her eviction from the house in question and that

suit was dismissed, but it is not clear from the record that Sahodara Bai was in possession of the property in question since 1940. There is nothing on

record that Jasoda Bai was ever in possession of the suit property as pleaded by the respondent.

Hon'ble the Supreme Court in the matter of Achal Reddy vs. Ram Krishna Reddiar, ported in (1994) 4 SC 706, held that ""adverse possession

implies that it commenced in wrong and is maintained against right. When commencement and continuance of possession is legal and proper, referable

to a contract, it cannot be adverse"". If property is owned by Jasoda Bai, then it has to be established that Sahodara Bai was in possession of the land

against title of Jasoda Bai. No document showing probability of ownership of Jasoda Bai in the said land is produced before the trial Court and there is

nothing on record except bald statement that Sahodara Bai was in continuous uninterrupted possession of the land against right of true owner,

therefore, the trial court is right in holding that Sahodara Bai did not acquire title over the property on the basis of adverse possession.

The suit contested between Munder Devi and Sahodara Bai was suit of eviction as landlord and tenant in which title was not in issue and from the

record of the trial Court it is clear that title was never issue in the said suit and it was not substantially decided. Principle of res judicata is applicable

only in case when issue of title is substantially involved and it is decided on merit, but that is not the case here, therefore, argument advanced on behalf

of the appellant that principle of res judicata is applicable in the present suit, is without substance and same must fail. In the present case, date of

registered sale deed by Sushil Kumar Jaiwal in favour of Munder Devi is 17-9-1974 and the suit was filed before the trial Court on 17-2-1982 and for

possession of the property limitation is 12 years as per Article 65 of the Limitation Act, 1963, therefore, suit filed for possession of the property on the

basis of sale deed executed on 17-9-1974 is within limitation and same is not barred by limitation. Argument on this count is also not sustainable.

Claim of the appellant Purshottam Jaiswal in FA No. 210 of 1996 is based on a will alleged to be executed by Sahodara Bai on 11-4-1982 as per

Ex.D/3. In the said will it is mentioned that earlier Jasoda Bai was owner of the land and after passing of Jasoda Bai, he is occupant of the property

and acquired title. From the record, there is nothing on record to show that Jasoda Bai was ever in possession of the said land. The case of the

appellant is based on adverse possession of Sahodara Bai, but in the present case, in the will she has mentioned that she was in possession of the

property after Jasoda Bai died, but that is not substantiated by material placed before the trial Court. It is also not proved that Sahodara Bai acquired

title on the property in question on the basis of adverse possession. When adverse possession of Sahodara Bai is not proved by evidence, she did not

acquire title on the said property and was not entitled to execute a will in favour of the appellant Purshottam Jaiswal, therefore, appellant Purshottam

Jaiwal is not entitled to claim right over the property. Tthe trial Court has evaluated the entire oral and documentary evidence on its right perspective

and this court has no reason to substitute contrary finding and both the appeals are liable to be dismissed.

Accordingly, judgment and decree is passed against the appellants and in favour of the legal representatives of late Munder Devi as under:

I) Both the appeals are dismissed with cost.

II) Both appellants/legal representatives shall bear the cost of the respondent No.1/legal representatives (a to f) of Munder Devi through out.

iii) Pleaders' fee, if certified be calculated as per schedule or as per certificate whichever is less.

iv) A decree be drawn up accordingly.