SA.354.2000. 1 HIGH COURT OF JUDICATURE AT JABALPUR, BENCH GWALIOR. SB:HON'BLE SHRI JUSTICE M.C.GARG.J. Second Appeal No.354 of 2000. [ENTITY]. Vs. Hargovind and Others. Appellants by Shri [ENTITY] Advocate. Respondents by Shri [ENTITY] Sr.Advocate with Shri Anvesh
Jain Advocate.
JUDGMENT.
(Delivered on 7 th January, 2015.).
PER [ENTITY].J. (1). The appellant/defendant has filed this appeal under [SECTION] of the [ACT] being aggrieved by the judgment and decree dated 24.7.2000 passed by Additional District Judge Sabalgarh District Morena in [CASE NUMBER] reversing the judgment and decree dated 11.1.1991 passed by Civil Judge Class 2, Sabalgarh District Morena in [CASE NUMBER] whereby, the suit filed by the plaintiffs/respondents for declaration of title and permanent injunction was dismissed and the counter claim filed by the defendants/appellants was decreed.
(2). Against this judgment of the lower court, the plaintiffs/respondents filed first appeal. The first appellate court after noting controversy involved in the matter in the form of the issues framed by lower court and the decision given thereupon has mentioned in para 8 of the judgment in the following words:
fo"k; fu"d"kZ 1 D;k okn xzLr xSr ekg tsB lacr~ & ugha 2011 esa oknhx.k us izfroknh dz-1 yxk;r 3 o e`rd xtk?kj ls ekSf[kd dz; dj dCtk izkIr fd;k \ ,oa bl gsrq lacr~2015 ekg Qawl esa fyf[kre fy[kh \ 2 D;k fojks/kh vkf/kiR; ds vk/kkj ij & ugha okn xzLr xSr essa oknhx.k ds LoRo ifjiDo gks x;s gS \ 3 D;k izfroknhx.k okn xzLr xSr dks cxSj fdlh & vizekf.kr vf/kdkj ds fodz; djuk pkgrs gS \ 4D;k okn xzLr xSr ij oknhx.k us voS/k dCtk & gkW dj j[kk gS \ ;fn gkW rks izHkko \ 5 lgk;rk ,oa okn O \ & oknhx.k dk okn fujLr ,oa izfroknh dz-1 yxk0 3 dk izfrnkok lQy gksrk gSA (3). Resolving the controversy with respect to the issues no.1
and 2, the first appellate court has made following observations in paras 16 and 17 as under :
16 oknhx.k dh vkssj ls ;aag vfHkopu fy;k x;k gS fd okn i= izLrqr djus ds 12 o"kZ iwoZ ls vf/kd le; ls os yksx fookfnr Hkwfe ij HkwfeLokeh ds :i esa izfroknhx.k dh tkudkjh esa dkfct gSA blfy;s fojks/kkRed vkf/kiR; ds vk/kkj ij fookfnr Hkwfe Lokeh gks pqds gSA vkSj izfroknhx.k ds fookfnr Hkwfe ij vf/kdkj vkSj LoRo lekIr gks pqds gSA blfy;s vf/kiR; ds laca/k esa mHk; i{k dh vksj ls lk{; izLrqr dh x;h gSA izfroknh lk{kh jkexksiky v-lk- 03 us crk;k gS fd izfroknhx.k djhc chl&iPphl lky ifgys dqVjkoyh xkao NksM+dj pys x;s FksA edku mUgksus jkeLo:i dks ns fn;k FkkA vkSj viuh [ksr dh tehu oknhx.k dks csp x;s FksA izfroknhx.k chl&iPphl lky ls ykM+iqjk xkao essa jg jgs gSA [ksr ij iRFkj vkSj bZV 25&30 lky ifgys j?kqohj us Myok;s FksA ;gka ;g mYys[kuh; gS fd djhc iPphl lky ifgys izfroknhx.k viuh [ksrh dh tehu djhc pkSng ch?kk 14 ch?kk oknhx.k dks cspdj ykM+iqjk xkao pys x;s FksA viuk edku os jkeLo:i dks ns x;s FksA ,slh fLFkfr esa ;g LokHkfod izrhr gksrk gS fd [ksr dh Hkwfe [kqyh iM+h gqbZ FkhA ftl ij oknhx.k us dCtk dj fy;k FkkA izroknh j?kqohj ds vuqlkj vkSj izfroknh lkf{k;ksa ds vuqlkj oknhx.k us 1987 ds djhc fookfnr [ksr ij vfrdze.k dj fy;k FkkA ;fn o"kZ 1987 ds djhc oknhx.k us vfrdze.k fd;k gksrk rc LoHkkfod :i ls izfroknh j?kqohj iqfyl dks vfrdze.k dh f'kdk;r djrs] ysfdu mUgkssaus ,slk ugha fd;kA 17 esjs er esa ,slh fLFkfr esa oknh i{k dh lk{k fo'oluh; gSSA ftlds vk/kkj ij ;g izekf.kr gS fd oknhx.k okn izLrqfr ds 12 o"kZ iwoZ ls izfroknh dh tkudkjh esa fujUrj Lokeh ds :i esa vkf/kiR; fd;s gq, gSA pwWfd oknhx.k ds ikl fodz;i= ugha FkkA blfy;s os yksx viuk ukekarj.k ugha djk ldsA ysfdu [kljksa esa mudk vkf/kiR; ntZ gSA pwWfd oknhx.k dk vkf/kiR; gS blfy;s muds ikl yxku dh ogha iz-ih- 03 Hkh gSA izfroknh j?kqohj dk ;g dguk fo'oluh; izrhr ugha gksrk gS fd o"kZ 1987 esa oknhx.k us vfrdze.k fd;s gSA pwWfd oknhx.k dk vkf/kiR; izfroknh dh tkudkjh esa ckjg o"kZ iwoZ dh vof/k ls Lokeh ds :i esa gSA blfy;s ifjlhek vf/kfu;e dh /kkjk 27 ds varxZr oknxzLr Hkwfe ij izfroknhx.k ds LoRo lekIr gks pqds gSA vkSj oknhx.k fookfnr Hkwfe ds Hkwfe Lokeh gks pqds gSA fo}ku v/khuLFk U;k;ky; }kjk bl okn fo"k; ij fy;k x;k fu"d"kZ oS/kkfud izrhr ugha gksrk gSA vr,o eSa bl okn fo"k; dzekad 2 dks ldkjkRed :i ls fuf.kZr djrk gwWA (4). It is against this judgment, appellants/defendants have filed this second appeal.
(5). To understand the controversy involved in the matter, it may be observed that the respondents/plaintiffs filed a suit for declaration of title over the suit property and permanent injunction against the appellants/defendants restraining them from taking possession of the property. The suit was dismissed by the trial court however, the counter claim filed by the appellants/defendants to the effect that they were in adverse possession of the property for more than 12 years was decreed and the plaintiffs/respondents were directed to hand over possession to the defendants/appellants because it was the plea of the appellants that they were dispossessed during the pendency of the suit.
(6). It is submitted by the appellants/defendants that since the claim of possession and injunction of the plaintiffs was based upon two fold arguments I.e. first upon purchase of the property by way of sale for Rs.100/- in the year 1954 from the defendants and second, having taken a plea of adverse possession which is contrary to the plea of purchase of the property from the defendants which acknowledges that the defendants were owner of the property and thereby admitting ownership of the property as that of the appellants/defendants. It is further submitted that two pleas taken by the respondents/plaintiffs were contrary and as such, based upon these pleas, claim of the plaintiffs/respondents could not have been accepted by the first appellate court and therefore, the said order was required to be set-aside.
(7). On the other hand, it is submitted on behalf of the respondents/plaintiffs that two pleas taken by them were not mutually inconsistent, because, the sale deed on which reliance was placed was not a registered sale deed and in any manner, after sale deed was executed, mutation was not carried out in favour of the respondents/plaintiffs but since they were in possession within the knowledge of the defendants for a period more than 12 years, they became owner of the property by way of adverse possession and therefore, the judgment of the first appellate court in reversing the judgment of the lower court whereby the suit filed by the plaintiffs was dismissed and cross- objection of the appellants were allowed, was in accordance with law and does not suffer from any infirmity.
(8). This appeal stood admitted on the following substantial questions of law :
"Whether, contradictory plea of the plaintiff that he is [ENTITY] by virtue of sale deed and that he is in possession by adverse possession are sustainable in law and whether decree can be passed on such a plea by the first appellate court reversing the judgment of the trial court".
(9). Both the parties have filed their written arguments. I have gone through the same.
(10). According to the appellants, the judgment and decree of the first appellate court is bad in law in as much as, the lower appellate court failed to consider that the claim of the plaintiffs of ownership by virtue of sale deed executed in their favour by [ENTITY] is contradictory to their plea of adverse possession. It has been submitted that the lower appellate court has also failed to consider that all the Khasra entries produced by the plaintiffs were showing them to be in possession. There is a record of their possession as trespasser by showing their possession in column no.10 which is not the column of ownership. It is thus submitted that the plaintiffs/respondents are not owner of the property but are encroacher. Therefore, the suit ought not to have been decreed in their favour. Moreover, some of the documents placed on record by the appellants namely Ex.D/1 and D/2 goes to show that the plaintiffs were not in possession of the property and as such, the plaintiffs/respondents have failed to prove that they have purchased the land and they are owner of the same and recorded as such. It is further submitted that there is no evidence that Ex.P/4 sale deed has been proved to have been validly executed. It is submitted that there is no plea of respondents/plaintiffs being in adverse possession. It is also submitted that for the purpose of showing hostile possession, the plaintiffs must plead hostile possession for the period of morethan 12 years. It is submitted that according to the plaintiffs, the defendants are encroachers and therefore, their counter claim for possession ought to have been decreed. On the other hand, it is submission of the plaintiffs that even if the plea was taken by the plaintiffs having purchased the said property but they also pleaded that they are in adverse possession of the property and were in possession for more than 12 years. It is submitted that by the lapse of time, the defendants having not taken any steps for the possession of the property, they lost their right under [SECTION] of the [ACT].
(11). It has been submitted on behalf of the respondents/plaintiffs that the question of inconsistency of pleas on the basis of which, question of law has been framed in this case is of no help to the appellants. In this regard, the reference has been made to a judgment of the Nagpur High Court rendered in the case of [PRECEDENT] in which, it has been observed as under :
"The Ct. cannot ignore the specific pleading of the party & deny it the right given by law to defend itself by raising an available plea. Even when a pleading contains plea which are apparently inconsistent or irreconcilable, it is not open to the Ct., to ignore one plea & act merely on the basis of another plea. The proper course for the Ct. in such a case would be to require the party pleading to remove the inconsistency either by giving further or better particulars or by setting out his pleas in the alternative.
Even when a pleading contains pleas which are apparently inconsistent or irreconcilable, it is not open to the Ct. to ignore one plea & act merely on the basis of another plea. The proper course for the Ct. in such a case would be to require the party pleading to remove the inconsistency either by giving further or better particulars or by setting out his pleas in the alternative".
(12). Reliance has also been placed upon the judgment of the Apex Court in the case of [PRECEDENT] in which, it has been held as under :
"a plaintiff may rely upon different rights alternatively & there is nothing in the civil P.C. to prevent a party from making two or more inconsistent sets of allegations & claiming relief there under in the alternative."
(13) Reference has also been made to a judgment of the Apex Court in the case of [PRECEDENT] wherein, in para 9, it has been observed as under :
"It is well settled in law that even if the pleadings are loosely drafted the court should not scrutinize the pleadings with such meticulous care so as to result in genuine claim being defeated on trivial grounds. (See: [PRECEDENT]] It is well settled in law that the Court has to look into the pleadings with a view to do essential justice in the case and to read the pleadings as to whole to ascertain its true import. The substance of the pleadings has to be seen and the intention of the parties is to be gathered primarily from the tenor and the terms of the pleadings taken as a whole. In [PRECEDENT] it has been held by the Apex Court in construing a plea in any pleading courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. To gather true spirit behind a plea it should be read as a whole. In [PRECEDENT] it has been that whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that inspite of deficiency in the pleadings parties knew the case and they proceed to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal [See also: [PRECEDENT] and [PRECEDENT]]."
Other judgment has also been relied upon by the respondents delivered in the case of [PRECEDENT].
On the basis of the aforesaid judgments, the respondents/plaintiffs submits that by virtue of [SECTION] of the [ACT], the defendants lost their right to get possession of the property. On the other hand, according to the appellants, since the respondents failed to prove execution of the sale deed and have not pleaded specifically that they are in adverse possession, the cross-objections filed by the appellants/defendants ought to have been allowed by the court below. It has been submitted by the appellants that the suit filed by the plaintiffs based on two contradictory pleas I.e. one as the owner and one being in possession by way of adverse possession, is not maintainable. Further in, [PRECEDENT], it has been held as under :
"The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable.
The concept of adverse possession contemplates a hostile possession e.i. A possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. A person who bases his title on adverse possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. Adverse possession is that from of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possession property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner(that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it, It is the basic principle of law of adverse possession that(a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.
In order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by ht parties interested in the property, though it in not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action".
(14). Considering all these facts and applying the principle of preponderance of all probabilities, it is apparently clear that even though the respondents/plaintiffs could not prove the sale which was not by way of registered sale deed and on the basis of which, mutation has not taken place, they have very consistently proved their possession over the suit property, in fact as an encroacher for a period of morethan 12 years. The factum of their possession has even been admitted by appellants in their cross-objection. Regarding their claim of declaration of the property as being owner thereof by way of adverse possession has also been admitted by the appellants but they have also admitted that in the 1987, the possession was taken over by the plaintiffs/respondents and therefore, they have sought for a direction that the possession of the suit property should be delivered to them by the plaintiffs/respondents. This very plea goes to show that the appellants/defendants were not in continuous possession of the property and in fact, they wanted to take benefit of the lacunae of the case of the plaintiffs/respondents to the extent that inconsistent pleas were taken by them I.e. claiming ownership through a sale deed which they could not prove and then also claiming possession of the property by way of adverse possession but at the same time when the appellants/defendants could not prove their title and were owner claiming adverse possession of the suit property they also admitted that the plaintiffs/respondents have also taken possession of the property in the year 1987, their plea for adverse possession qua case of the respondents/plaintiffs could not have been entertained by the first appellate court and first appellate court was right in rejecting cross-objections of the appellants/defendants and decreeing the suit of the plaintiffs/respondents.
(15). Hence, I do not find any infirmity in the order of first appellate court and therefore, this second appeal is not maintainable and it is hereby dismissed with no order as to the costs.
([ENTITY]) Judge 07.01.2015.