MADHA VKRISHNA AND ANR.

A v.

CHANDRA BHAGA AND ORS.

SEPTEMBER 23, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Code of Civil Procedure :

S. 11-Res judicata-Suit filed-Trial Cowt held that properties in question not family prope1ties-Decree became final-Properties bequeathed C by way of a will-Suit filed for title and possession-Decreed-High Court setting aside the decree on the ground that the other p01ty had pe1f ected the title by adverse possession-On appeal held, since there was no claim of hostile title against the owner of the prope1ty, the earlier decree operates as res judicata-Subsequent suit filed within 12 years from date of death of the owner-Obviously 110 adverse possessio11 had bee11 peif ected against the D appellant-Moreover, as against the predecessor i11 title of the appellant, the earlier decree operates as constructive res judicata 011 the plinciple of might a11d ought-Judgme11t a11d decree of High Court set aside.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12994 of E 1996.

From the Judgn1ent and Order dated 3.7.95 of the Madhya Pradesh High Court in S.A. No. 102 of 1989. ~

AK. Chitale and Niraj Sharma for the Appellants.

Sushil K. Jain for the Respondents.

The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the judgment and order dated July 3, 1995 passed by the High Court of Madhya Pradesh Bench at Gwalior in S.A. No. 182/89.

The admitted facts are that Mansaram had two sons by name, H 665

A Babula! and Parasram. The appellants are the descendants through Babula) and the respondents are descendants through Parasram. In an earlier suit No. 384-N64, the respondents pleaded in their plaint that Mansaram, Babula) and Prasaram were members of the joint family and, therefore, each of them was entitled to l/3rd share in the suit property.

B They sought for partition and a decree for partition by meets and bounds to the extent of their 1/3rd share in the said house. It was held that Mansaram was the exclusive owner of the property and that it was not a joint family property and that the respondents have no right to partition of the said property. The decree has become final. Mansaram, during his C lifetime, had executed a registered Will on March 28, 1964 bequeathing the properties to the appellants and Mansaram died on December 12,

1968. The appellants filed the suit on November 14, 1977 for declaration of title and for possession thereof. The Civil Court in Suit No. 942-A of 1984, Vllth Civil Judge, Civil II, Gwalior by order dated May 10, 1985 D decreed the suit. On appeal, the 4th Additional Judge, Gwalio! upheld the same by decree and judgment dated August 21, 1989. The High Court in the second appeal while upholding that the Mansaram was the owner and had validly bequeathed it under the Will in favour of the appellants set aside the decree on the ground that the respondents had perfected that title by adverse possession. Thus, this appeal by special leave.

It is seen that the respondents have pleaded in their written statement in para 9 as under :

"The plaintiffs are not the exclusive owners of the suit house. The northern portion of House Municipal No. 217 situated at Nimbaji Ka Bag, Jiwaji Lashkar, was constructed by Parasarm and Mansaram. Parasaram had died 25 years ago. The defendants are the heirs of Parasram. The southern portion was constructed by the defendants and Mansaram together. In this way, the defendants are residing in the suit house in the capacity of owner which fact is within the knowledge of the plaintiffs and their ancestors from the very beginning. House Municipal No. 2/7 is of the joint Hindu Family of the plaintiffs and the defendants. For this reason, the plaintiffs have no right to file the suit and recover possession and the defendants being in actual possession of the suit land for over

MADHA VKRISHNAv. CHANDRABHAGA 667

12 years, the suit is barred by limitation and deserves to be A dismissed."

No doubt there is an issue raised on the plea of adverse possession and findings recorded by the course below was that the respondents had not perfected their title by adverse possession. The High Court has B reversed that finding on the ground that the respondents remained in . possession for more than 12 years and thereby they perfected their title ·

by adverse possession. The question is : whether the view of the High Court is correct in law? A reading of the pleadings would clearly indicate that they set up their own title to the property and they have remained C in possession for more than 12 years and, therefore, they sought for the suit to be dismissed on that ground. In view of the fact that Mansaram . was found to be the owner in the earlier suit and he died on December 12, 1968 until then the question of adverse possession did not arise. The plea of adverse possession as against Mansaram was not pleaded. In this D case, except repeating the title already set up but which was negative in the earlier suit, namely, that they had constructed the house jointly with Mansaram, there is no specific plea of disclaiming the title of the appellants from a particular date, the hostile assertion thereof and then of setting up adverse possession from a particular date to the knowledge E of the appellants and of their acquiescence. Under these circumstances, unless the title is disclaimed and adverse possession with hostile title to that of the Mansaram and subsequently as against the appellant is pleaded and proved, the plea of adverse possession cannot be held proved. In this case, such a plea was not averred nor evidence has been adduced. The p doctrine of adverse possession would arise only when the party has set up his own adverse title disclaiming the title of the plaintiff and established that he remained exclusively in possession to the knowledge of the appellant's title hostile to their title and that the appellant had acquiesced to the same. Since there is no plea that he had claimed any G hostile title against Mansaram, the owner of the property, the earlier decree operates as res judi, cata. The present suit was filed within 12 years from the date of the demise of Mansarain; hence, it was obvious that no adverse possession has been perfected against the appellant. Moreover, as against Mansaram, the predecessor in title of the appellant, the earlier H

A decree operate as constructive res judicata on the principle of might and ought. The High Court, obviously, was incorrect in its finding that the respondents had perfected their title by adverse possession.

The appeal is accordingly allowed. The judgment and decree of the B High Court stands set aside and that of the trial Court and the appellate Court stand restored. No costs.

G.N.

Appeal allowed.