Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7129 OF 2022
Kesar Bai …Appellant(s)
Versus
Genda Lal & Anr. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Madhya Pradesh Principal Seat
at Jabalpur in Second Appeal No. 8 of 1999, the original defendant has
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 That the respondent No.1 herein – original plaintiff filed a suit
seeking declaration of ownership and permanent injunction against the
defendant with regard to the suit property. The original plaintiffs claimed
the title / ownership on the basis of the registered Sale Deed executed
on 31.08.1967 in favour of their father and husband Dariyab Singh. The
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plaintiffs also claimed the title on the basis of the adverse possession.
The learned Trial Court dismissed the suit.
2.2 The original plaintiffs preferred the appeal before the First
Appellate Court. The learned First Appellate Court though held that the
plaintiffs shall not get any right on the basis of the Sale Deed dated
31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observing
that the plaintiffs are in possession of the suit land. The First Appellate
Court also held that therefore, the plaintiffs have perfected their title by
way of adverse possession. The First Appellate Court decreed the suit
for title on adverse possession and issued the decree of permanent
injunction restraining the defendant No.1 – appellant herein from
interfering with the possession of the plaintiffs. The appellant herein –
original defendant No.1 filed the second appeal before the High Court.
The High Court framed the following substantial question of law:-
"Whether the First Appellate Court has erred in holding that
the plaintiff has perfected his title on the disputed land by
adverse possession?"
2.3 Though the High Court answered the aforesaid substantial
question of law in favour of the appellant, however, thereafter did not
interfere with the judgment and order passed by the First Appellate Court
by observing that the First Appellate Court has specifically given the
finding that the plaintiffs are in possession of the suit land since after
execution of the Sale Deed dated 31.08.1967. Consequently, the High
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Court has dismissed the said second appeal. The impugned judgment
and order passed by the High Court dismissing the second appeal is the
subject matter of present appeal.
3. Learned counsel appearing on behalf of the appellant – original
defendant No.1 has vehemently submitted that as such the plaintiffs filed
the suit for declaration claiming ownership/title on the basis of the
registered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed the
ownership by adverse possession. It is submitted that all the Courts
below had negated the claim of the original plaintiffs on the basis of the
registered sale deed. It is submitted that thereafter the only question on
behalf of the plaintiffs was the claim on the basis of the adverse
possession. It is submitted that in the impugned judgment and order, the
High Court has though held the substantial question of law on adverse
possession in favour of the appellant by observing that the plea of
ownership based on sale deed and plea of adverse possession, both,
are contrary to each other and plaintiffs cannot be permitted to take the
same plea at the same time, thereafter the High Court has dismissed the
appeal and confirmed the judgment and order passed by the First
Appellate Court decreeing the suit for title and also passed the decree
for permanent injunction.
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3.1 It is vehemently submitted by the counsel on behalf of the
appellant that once the original plaintiffs failed to get the decree for
title/declaration on the basis of the Sale Deed executed on 31.08.1967
(Ex.P.1) and the substantial question of law with respect to the adverse
possession was held in favour of the appellant by the High Court,
thereafter the original plaintiffs shall not be entitled to the decree of
permanent injunction.
3.2 It is further submitted that the High Court has failed to appreciate
that once the plaintiffs are not found to be the owner, they cannot claim
their title by way of adverse possession. Their possession over the land
in question can only be in the nature of an encroacher. It is submitted
that therefore both, the First Appellate Court as well as the High Court
have seriously erred in granting the permanent injunction in favour of the
plaintiffs and against the defendants.
4. Ms. Swarupama Chaturvedi, learned AAG appearing on behalf of
the respondent No.2 – State has submitted that she is appearing for a
proforma respondent and therefore, has nothing to add.
5. Having gone through the impugned judgment and order passed by
the High Court as well as the First Appellate Court and even that of the
learned Trial Court, it appears that the original plaintiffs prayed for a
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declaration and claimed the title/ownership on the basis of the Sale
Deed dated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also
claimed the title by adverse possession. All the Courts below have
negated the claim of the original plaintiffs of ownership on the basis of
the registered Sale Deed dated 31.08.1967 (Ex.P.1.) Therefore, the only
claim on behalf of the plaintiffs was the plea of adverse possession. So
far as the plea of adverse possession is concerned, the High Court has
specifically framed a substantial question of law (reproduced
hereinabove) and as such has held the same in favour of the appellant –
original defendant No. 1. The High Court has specifically observed and
held that the plea of ownership based on sale deed and plea of adverse
possession, both, are contrary to each other and the plaintiffs cannot be
permitted to take both the pleas at the same time. Therefore, even as
per the High Court, the claim of the plaintiffs on the basis of the adverse
possession was not tenable. In that view of the matter and once the
substantial question of law on adverse possession was held in favour of
the appellant – original defendant No.1 and the title/ownership claimed
on the basis of the Sale Deed dated 31.08.1967 (Ex.P.1) was negated by
all the Courts below, thereafter the possession/alleged possession of the
plaintiffs could not have been protected by passing a decree of
permanent injunction in favour of the plaintiffs. Under the circumstances,
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the High Court has materially erred in dismissing the appeal and
confirming the judgment and order passed by the First Appellate Court.
6. In view of the above and for the reasons stated above, present
appeal succeeds. The impugned judgment and order passed by the
High Court passed in Second Appeal No. 8 of 1999 and the judgment
and order passed by the First Appellate Court are hereby quashed and
set aside and the judgment and decree passed by the learned Trial
Court dismissing the suit is hereby restored.
Present appeal is accordingly allowed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
OCTOBER 14, 2022. [KRISHNA MURARI]
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