BJS'iSiSBfi fc-5 A- ^ 13 THE HIGH CeURT ©E"tTBBErC&TDBB.aa' .SI&ASPUR { C»0.) SE%HB. ^S^^SQ^ ^fo g^SXlJTXSS iilra-n aged -at&ut 50 years son Q £SsQ. Scraa, residen fc o£ village^sldhouri P.fi.Gd®ourl Korba B.ts-tt.Korba (G.G.i}. VSSSBS m\i. v &ESP0HSEHTS •SEOSi'SS M ^ :^!w '• ^ ^l>'' ^ V '^^^r^ ;'l;%lr'^"1 :;<^ilf/' 'y':1-,.... ^^^ ... ^^G.^^ ey :i 1« SiaaTan Sfegh soaefOiaslFan Cdead) thagagh hls legal i ' beirs i : • (*.) T.DcaitiB Bal aged altoat 57 ysars s.ido'B o£ Ehargn Siagh resideB't.Qf ©AaheniEl. il TahsU aad Bd.saiS'.KGt&tea (IC.,<3;. 1!' (B^aiyan Saigh saa of.Efoar^it j|^ - Sa.agh -regietg'i't of.-i31clbQQE3.Il.' afe presait tefa.tnd Kasa . : Talkies Balag Bistclcfc Korba (C.GS) • • , .. ^ Gitalal son o£ Blaaeani SfegS, -aged: alagat -SS'^geaEs-fi/a- GaalyaEit a-fe preseat R/o SaalyarA JP*c@3aa ±srarl Blstt.fcor&a {e.sg')®.:-.. 1, ' Stafcs o£ Ghhatt.3.sgar6;'TIari3tigtjj Qaileetoff Korba Bi'sferic-fe K&cba, CG.<3.)i : - S5S3NB_A£>PSto GNBe'S SSCtSaS 100_©FSHE; (33W aE' Ct'VXL PSBGBSBBB, 1S08S •, .. : •- / ^^.. : •'Salt valaed at RsS' Bi 1 ;<.:»i: /2p ;«' H!GKCOUR^°E5HHATT!SGARH^^ SecondAppeal No. 290 of 2006 Mukhiram Versus Dharam Singh (Dead) and otherfe. Judgment be posted for K-.9-2006 Sd/- Dhirendra Mishral Judge ^ ^B:,^^.,^jmtiS ^ HIGH COURT OF CHHATTISGARH AT B1LASPUR S.A. N0. 290/2006 Dhlrendra Mishra.J APPELLANT MUKHIRAM VERSUS RESPONDENTS DHARAM SINGH (DEAD) ANDOTHERS. SHRI R.K. TIWARI COUNSEL FOR THE APPELLANT JUDGMENT (Delivered on f^-9-2006) The appetlant/plaintiff has preferred this appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 10.3.2Q06passed byAdditiona! District Judge, Korba in Civil Appeal No. 28-A/2001 by which the appeal ofthe appellant against the judgment anddecreedated 30.10.2001 passedbyCivilJudgeClass II Korba indvil Suit No, 161-A/2000 has been dismissed, on the following substantial questions of law: I) Whether the suit for declaration of title under Section 34 ofthe Specific ReliefAct, 1877 is 'maintainabie or not? 11) Whether the suit is barred by time under Section 58 of the tndian Limitations Act? II!) Whether the appellant/plaintiff has been in adverse possession over the suit land for more than 12 years before the institution of the suit and as such perfected his title by adverse possession? r~~ f^SiwSSS^s: ^ 'A'.. i.-" irr llii i Thecaseoftheplaintiffinbriefisthathspurchasedthesuit land from its erstwhileowner Dharam Singh 20 years back for a consideration of Rs.2,250/- and obtained possession thereof and sincethen he is in continuous possession ofthe same. The transaction was oral and DharamSinghWas to execute the registered sale deed within four months there from and as the plaintiff is -in continuous peacefu! possession for more than 20years, heh.as perfected tiis title. However, Dbaram Singh moved an application iri the year 1994-95 for obtaining back the possession of the suit land and the appellant deolined to restore the possession, Dharam Singh tooR back his application and threatened that hewould forcibtytake possession ofthe suit land and inthe aforesaid circumstanees the plaintiff has fiied the suit for declaration of his title over the suit land. In the written statement the respondents denied the allegations of the plaiht and stated that tiie suit land betonged to Dharam Singh and hewas in ppssession ofthe sgnrte dyring his lite time and after the death of Dharam S respondents are in possession as legal heirs. The plaintiff was never in possession nor Dharam Singh ever entered into anoral agreement with the appellant for the sale ofthe suit land. "^ • .' : ' .. . ' . • • ' • ''''•''-.'• • ' •'••.•' On the basis of the pleadings of the respective parties issueswere framed and after recording the statements of the witnesses of the respective parties the suit was dismissed by the triai Court by recording a finding that the plaintiff has faited to proye the oral agreement for sale and thatheobtainedthepossessionofthesuitlandafterpaying Rs. 2,250/- as consideratiQn to Dharam Singtior was tRere any agreementte execute the safe deedafterfcur months, plaintiff has perfected his title by remaining iri possessioffi for a continuous period of 20 years since Dharam Sihgh dia "S'^-il^i ^::p^^ r'^'^t': ^ ,SP 5. not execute the sale deed within a period of four months, that Dharam Singh filed anapplication before the Panchayat for obtaining possession of the suit landand subsequently had withdrawn the same, that Dharam Singh ever threatened to take possession as a result of which the plaintiffwas in fear and holding that the defendants 1 to 3 are in possession of the suit land after the death of Dharam Singh and their names stand recorded over the suit land after the death of Dharam Singh, dismissed the suit with cost. ; . 4. The appeal preferred by the appellant has a!so been dismissed by the appellate Court by recording a finding that the appellant had preferred the suit for dedaration simplicitor under section 34 of the Specific Relief Act without praying for any consequential relief and as such the suit is not maintainable as per the proviso to section 34 of the Specific Relief Act. From the pleadings of the plaintiff it is evident that the suit is governed by Article 54 of the Limitation Act which provides that the suit should be instituted within three years from the date when the cause of action to file the suit accrues. Though from the nature of the dispute as is evident from the pleadings, the present suitshould have been filed for specific performance 6f thecontractand sincethe appellant could not file the suit for specific performance within the time limit, the suit for declaration has been fiied on the ground of perfection of title by adverse possession and considering the pleadings in the plaint even if the facts mentioned therein are accepted in toto, cause of acfion on the basis of perfection of title through adverse possession aroSetotheappellantsomefiveyearsbaGkaftercpmpletion of 12 years of his continuous possession over the suit land and as such the same has been preferred beyond ;the -tl- n^t period of limitation prescribed under Articles 54 and 58 of the Limitation Act. Since there is no written agreement with respect to transfer ofthe property and admittedlythere was only oral contract, no advantage under section 53-A of the Transfer of Property Act is available to the plaintiff. Even otherwise, neither from the pleadings nor from the oral evidence led by the plaintiff it is established that the plaintiff was in continuous possession for more than 12 years hostile to the recorded owner Dharam Sihgh and assuch the ingredients of adverse possession for a continuous period of 12 years are missing and on the basis of above finding the judgmentand decree of the trial Court has been confirmed. 6. Learned counsel for the appellant relying upon the judgment of the Madhya Pradesh High Court in the matter of Stateof M.P. Vs. Shri Ahivtlamata GQshala Jivdava Mandal Trust, Indore and others reported in lg89_gM^4.submits that the title accrued to the appellant on the basis of continuous uninterrupted possession for more than 20 years. Further relying upon the decision of the Supreme Court in the matter of Panchram DJiara and o&iers \fe, Monmaths Nath Majty (Dead) throuahl^s^ji(Lauiother reported in 2006 (3JCCC 358 (SC) learned counsel submitted that for the purpose of suit for specific performance written documents are notnecessarily required and the same can be implied also by the conduct of the parties in this behalf. He further relied Upon yet another decision of the Madhya Pradesh High Court in themattsrof Ram Sinah Vs. Roop Sinah reported in 1989 RN 349 and submitted that where a person is put in possession under the agreement of sale, he acquires the title on the basis pf adverse possession after 12 years and thereforg? 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