Sujat Ali & Ors vs Rayees Ul Hasan & Another

The appellant (hereinafter referred as “plaintiffâ€) has filed the second appeal (SA No.38/2017) being aggrieved by the judgement and decree

dated 29.09.2015, passed by the Civil Judge, Class-II, Sanwer and judgement dated 04.10.2016, passed by the 3rd Additional District Judge, Indore by

which civil suit as well as first appeal both have been dismissed on the issue of title.

The plaintiff filed the suit for declaration of title on the basis of adverse possession and permanent injunction against the defendant No.1 in respect of

land situated at Survey No.296/2 (area 2.526 hectares) of Gram Solsindha, Tehsil Sanwer (hereinafter referred as the “suit landâ€​).

As per the pleading in the plaint, the defendant No.1 purchased the suit property in the year 1977. The plaintiff purchased the suit property from the

defendant no.1 in the month of May, 1981 in Rs.50,000/-. The sale transaction was an oral transaction. In order to purchase the aforesaid suit land, the

plaintiff had agreed to sell his own land in Rs.1,32,000/- and out which he paid Rs.50,000/- to the defendant no.1. The defendant No.1 handed over

him the possession of suit land and the sale transaction was completed. The plaintiff and the defendant No.1 are cousin brothers, therefore, they

agreed for non-execution of the sale deed. With the consent of defendants, the plaintiff got mutated the said land in the revenue record in the name of

his son Sharif-ul-Hussan in the year 1992. The said mutation in the name of his son continued upto 20.04.2011. Though, the land was mutated in the

name of his son, but in fact the plaintiff remained in possession. According to the plaintiff, in the year 2011 the price of land has increased, therefore,

the dishonesty came in the mind of defendants and started disputing the ownership of the plaintiff. He filed appeal before the SDO against the order of

mutation alongwith an application under Section 5 of the Limitation Act. The SDO condoned the delay and admitted the appeal and finally passed the

order in favour of the defendant. The plaintiff’s son filed the second appeal and thereafter, revision before the Board of Revenue. The Board of

Revenue vide order dated 25.10.2011 has allowed the revision. The defendant No.1 filed the writ petition under Article 227 of the Constitution of India

before the High Court of Madhya Pradesh, Bench at Gwalior. The writ Court dismissed the writ petition, thereafter, the defendant No.1 preferred a

writ appeal before the Division Bench and by order dated 13.03.2015 the writ appeal has been allowed and the defendants’ name has been

mutated in the revenue record. The aforesaid incident gave cause of action to the plaintiff to file suit for declaration of title on the basis of adverse

possession and suit for permanent injunction on the ground that he is in continuous possession since 1981, therefore, he has become owner by virtue of

adverse possession.

After notice, the defendant No.1 filed written statement refuting allegation of oral sale with the plaintiff and mutation in the name of son of the plaintiff

with the consent of defendant. He has specifically denied any transaction of sale with the plaintiff. However, he has admitted his relations with the

plaintiff. He further admitted that the writ appellate Court vide order dated 13.03.2014 has observed that in the year 1992 the plaintiff on the basis of

forged document got mutated name of his son in the revenue record. By way of special pleadings, he submitted that the plea of ownership by virtue of

sale and the plea of ownership by way of adverse possession cannot exist together.

On the basis of adversaries’ pleadings, the trial Court framed 5 issues for adjudication on 05.09.2014. The trial Court framed the specific issue in

respect of ownership by virtue of oral sale as well as adverse possession for the period of 12 years.

In support of their case, both the parties led their evidences. The plaintiff filed a Revenue Khasra entries from 1989-2011-12 as Exhibit P/1 to P/8. In

rebuttal, the defendant filed the Khasra Kishtbandhi as Exhibit D/1 to D/3, Sale Deed as Exhibit D/4, Order of SDO as Exhibit D/5, Order of

Additional Commissioner as Exhibit D/7, Order of High Court as Exhibit D/8 and Report of Panchayat as Exhibit D/9 and Khasra Panchsala as

Exhibit D/10 to D/12. By impugned judgement dated 29.09.2015, the learned civil judge dismissed the suit in toto in respect of declaration of title as

well as for permanent injunction.

Being aggrieved by the aforesaid judgement and decree, the plaintiff preferred a first appeal. By judgment dated 04.10.2016, the 3rd Additional

District Judge has dismissed the appeal and affirmed the judgement in respect of title, but granted partial relief to the plaintiff that since he is in

possession over the suit property, therefore, the defendant no.1 cannot evict him from the suit property without following due process of law. Being

aggrieved by the judgement and decree, the plaintiff filed S.A.No.38/2017.

Being aggrieved the judgement passed by the appellate Court granting partial decree in favour of the plaintiff, the defendant filed S.A.No.623/2016.

I have heard the arguments of Shri Vikas Rathi, learned counsel appearing on behalf of the plaintiff and Mr Ankur Modi learned counsel appearing for

the defendant . Shri Rathi submitted that learned trial Court has rightly found that plaintiff is in possession since 1977 to 2011, therefore, he ought to

have granted the decree of ownership perfected by way of adverse possession. The defendant had knowledge about the possession of the plaintiff

and mutation of the name of his son as he submitted no objection, therefore, the right of the plaintiff over the suit property has been perfected by way

of adverse possession. Learned first appellate Court has rightly protected the possession of the plaintiff in view of the law laid down by the apex

Rame Gowda Vs. Varadappa Naidu, reported in AIR (2004) 1 SCC 769 and the said decree is liable to be upheld and the Second Appeal

No.623/2016 filed by the defendant is liable to be dismissed.

Shri Ankur Modi, learned counsel for the defendant argued in support of the judgement and decree in respect of finding recorded against the plaintiff.

He submitted that the trial Court as well as appellate Court both have rightly dismissed the suit and appeal in respect of declaration of ownership by

way of oral sale as well as by way of adverse possession. The apex Court in case of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala &

Another, reported in (2014)1 SCC 669 has held that the suit seeking declaration of title by way of adverse possession is not maintainable, therefore, no

interference is called for in the second appeal filed by the plaintiff . He further submitted that the Division Bench of this Court in writ appeal has held

that the plaintiff created forged documents for the purpose of mutation of the name of his son, therefore, the plaintiff did not approached with the

clean hands before the civil Court, hence, he is not entitled for any relief.

Shri Modi learned counsel further argued in support of his second appeal filed by defendant by submitting that the learned trial Court has rightly denied

the decree of title as well as permanent injunction as the plaintiff is not in settled possession over the suit property. The first appellate Court, only on

the basis of certain statements came in the evidence has wrongly came to the conclusion that the plaintiff is in possession from 1977 to 2011. He

further submitted that the plaintiff has failed to prove the story of oral sale then handing over the possession at the time of sale ought to have been

disbelieved by the Court. The finding of possession has wrongly been reversed. He further submitted that if the defendant is relegated to the Court for

the purpose seeking possession of suit land then it would led to another round of litigation for years together. The plaintiff has already been given

ample opportunity to prove his title and since he has failed to prove title, therefore, he is not entitled to claim retention of his possession. In support of

his contention, he has placed reliance over the judgements of apex Court as well as this Court. Second appeal No.623/2016 filed by the defendant is

heard and admitted on following substantial questions of law:-

A. Whether due process of law requirement stood met and fulfilled in this proceeding itself or for meeting out due process it is necessary that the

party seeking eviction has to be a plaintiff in the proceeding and the party liable to vacate is required to be a defendant in the proceeding.

B. Whether the findings recorded by the first appellate Court in respect of possession of the plaintiff from 1977-2011 is perverse?

Since, the plaintiff is represented through counsel in this appeal also, therefore, no notice is required to be served to him and this appeal is decided

finaly on the aforesaid substantial questions of law.

Shri Vikas Rathi, learned counsel for the plaintiff submitted that the first appellate Court has rightly found that the plaintiff into the possession and in

view of the law laid down by the apex Court in case of Rame Gowda (supra), the first appellate Court has rightly granted permanent injunction in his

favour that he cannot be removed without following due process of law. The plaintiff is claiming possession by virtue of oral sale with the defendant

No.1, but before the Courts below, he has failed to prove his story of oral sale. The plaintiff got mutated the name of his son in the revenue record and

certified copies of Khasra Panchsala have been filed as Exhibit P/1 to P/8. In all these Khasra Panchsalas the name of the plaintiff is not there,

therefore, from these entries it cannot be believed that the plaintiff has produced the documentary evidence to prove his possession. The Division

Bench of this Court in W.A.No.08/2014 has held that the respondent No.2 i.e. son of the plaintiff in this case with the connivance of Revenue Officer

got his name mutated in regard to the land which was of the ownership of the defendant, without any legal basis, hence, the act of respondent No.2

amounts to fraud. Relevant portion of the aforesaid order is reproduced below:

“From the aforesaid judgement of the Hon'ble Supreme Court, in wihich other judgements have also been considered, the principle of law is that if

there is deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another, it is a fraud. In the

present cased, the respondent No.2 with the connivance of Revenue Officer got his name mutated in regard to the land, which was of the ownership

of the appellant without any legal basis, hence, the act of respondent No.2, in our opinion, amounts to fraud. Teh fraud vitiates everything and no

judgment of a court allowed to stand if it has been obtained by fraud, if there was delay in filing the appeal by the appellant before the SDO. SDO has

rightly condoned the delay because it is well settled principle of law that the plea of fraud can be taken in execution stage also. The Revenue Board

has mechanically allowed the revision ignoring the aforesaid aspect. Hence, the order passed by the Board of Revenue is contrary to law. â€​

Except oral evidence, the plaintiff has failed to produce any material to establish his possession. He has never made any effort to get his name

recorded in the revenue record in respect of his possession. So far as the entry of name of his son in the revenue record is concerned, this Court has

already held that it is a fraud played by the plaintiff’s son. Therefore, on the basis of oral evidence, the first appellate Court has wrongly recorded

the findings of possession of the plaintiff especially from the year 1977 to 2011 with the consent of defendants. The Court has held that after 2011

also, the plaintiff is in possession. From the very beginning, the defendant came up with the plea that he has never handed over the possession of the

suit property to the plaintiff as there was no oral sale, therefore, the question of claiming relief of possession by the defendant did not arise.

In case of Maria Margadia Sequeria Fernandis and Others Vs. Erasmo Jack De Sequeria (Dead) through LRs, reported in AIR 2012 SC 1727, the

constitution bench of this Court has laid down the principal of law in respect of protection of possession without title. Relevant portion of the aforesaid

judgement is reproduced below:

“101. Principles of law which emerge in this case are crystallized as under:-

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such

person would not acquire any right or interest in the said property.

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give

possession forthwith on demand.

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some

time either as a friend, relative, caretaker or as a servant.

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license

agreement in his favour.

The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such

property irrespective of his long stay or possession. â€​

In view of the above, even if there was a remotest possibility of possession of the plaintiff that was by virtue of relation with the defendant No.1 or the

suit land was given for certain period for cultivation period, cannot give arise for long and continuous possession adverse to the true owner. This Court

in Civil Revision No.105/2011 has held that when a party approaches a Court by way institution of a suit and he fails to set up a good case, it cannot

say that another party now must institute in the Court of law for enforcing his right for taking back something from the first party. Relevant portion of

the aforesaid order is reproduced below:

“15. In the opinion of this Court, from the plaint averments it is clear that plaintiff is unable to show any right and cause of action. The Court below

was not justified in rejecting the said application. A microscopic reading of judgment of Delhi High Court in Thomas Cook (supra) shows that when

party approaches the court with a suit for injunction and it fails to set up a good case, it cannot say that another party now must institute an action in

court of law for enforcing his rights i.e. for taking back something from the first party, who holds it unlawfully, and, till such time, the Court hearing the

injunction application must grant an injunction. In this view of the mater, even if injunction suit of plaintiff is decided, 'due process' of law is fulfilled.â€​

So far as the law laid down by the apex Court in the case of Rame Gowda (supra) is concerned, in the said case the apex Court has found that the

defendant is required to prove his title, therefore, the Court has protected the possession of the plaintiff, subject to establishing the title by the

defendant who want to dispossess plaintiff , but in the present case after the two rounds of litigation the defendant No.1 has successfully establish his

title over the suit land. The plaintiff had full opportunity before the revenue as well as before the Civil Court to prove his title but he has failed to prove

the same. Both the parties are under litigation since 2011 and if the plaintiff and defendant No.1 are relegated to the civil Court again for taking

possession by way of civil suit that would give rise to another round of litigation for years together specially when the title has not been proved by the

plaintiff .Therefore, the due process or due course of law is virtually satisfied the moment the right of the party are adjudicated upon the Court of

competent jurisdiction. The Delhi High Court in case of Thomas Cook (India) Limited Vs. Hotel Imperial and Others, reported in

(2006) 88 DRJ 545 had held as under:

“28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to

above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his

own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law.

Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law

having adjudicated upon his rights qua the true owner.

Now, this 'due process process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent

jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in

unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for

enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is

important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of

'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court

seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action

in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing

the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial

determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an

injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to lawâ€​

(Emphasis supplied)

This judgment of Delhi High Court is approved on the aspect of 'due process' of law by Supreme Court in Maria Margarida (supra) (para 80).â€​

The aforesaid judgement has been approved by the Apex Court in case of Maria Margadia Sequeria (Supra). The plaintiff has wrongly been held into

the possession by the first appellate Court by reversing the findings, therefore, in absence of any material on record, the findings are perverse and

liable to be set aside. The questions of laws are answered in favour of the defendant. Hence, the Second Appeal No.38/2017 is hereby dismissed and

Second Appeal No.623/2016 is allowed and judgement dated 04.10.2016, passed by the 3rd Additional District Judge is set-aside.

No order as to cost .