Second Appeal No 492 of 1995

Bajrang Kedia

...Petitioners

Versus

State of Madhya Pradesh Now CG

...Respondents

! Mr Sree Kumar Agrawal Senior Advocate with Mr HS Patel Advocate for the appellant

^ Mr Sushil Dubey Government Advocate for the State respondent

CORAM: Honble Mr TP Sharma J

Dated: 07/12/2011

: Judgement

JUDGMENT

Second Appeal under Section 100 of CPC Passed on 7th December 2011

1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short `CPC'), the appellant has challenged the legality and propriety of the judgment & decree dated 21.2.1995 passed by the 6th Additional Judge to the Court of District Judge, Bilaspur, in Civil Appeal No.63-A/93, affirming the judgment & decree dated 30.9.88 passed by the 4th Civil Judge Class-I, Bilaspur, in Civil Suit No.105-A/88, whereby the suit filed on behalf of the appellant against the State for possession and mesne profit has been dismissed.

2. The present second appeal was admitted on 16.8.1995 on the following substantial question of law:- "When in a suit based on title, governed by Article 65 of the Limitation Act, 1963, the plaintiff proves his title to the suit land, could he be non-suited on the ground that he failed his possession in respect thereof within 12 years of the institution of the suit, in absence of plea and proof of adverse possession?

3. As per claim of the appellant/plaintiff, the appellant is owner of khasra No.225/2 area 3.30 acres. The respondent/defendant was using the part of the land as go- down, but at present the respondent is not using the same as go-down. Previously there was mutual understanding between the parties that rent of the aforesaid go-down will be fixed by the Collector, but the respondent neither fixed nor paid the rent. Then notice under Section 80 of the Code has been issued on 18.1.82 and thereafter suit for vacant possession and mesne profit has been filed. By filing written statement the respondent has admitted the possession and has claimed that the respondent is using the go-down situated on the part of land area 0.20 acre as go- down since 1941-42. The respondent has also claimed that the respondent is owner of the suit property. The respondent has also pleaded that suit is barred by limitation. After providing opportunity of hearing to the parties, the 4th Civil Judge Class-I, Bilaspur has dismissed the suit. Same was challenged before the lower appellate Court and the lower appellate Court has also dismissed the appeal.

4. During pendency of the second appeal vide order dated 16.7.98 following issue was framed and the trial Court has directed to take additional evidence and record the finding;

"Whether the defendant has perfected his title by adverse possession ?

5. The lower appellate Court has recorded its finding vide judgment dated 15.12.99 in Civil Appeal No.63-A/93, in which the lower appellate Court has held that the respondent has not perfected its title by way of adverse possession.

6. I have heard learned counsel for the parties, perused the judgment & decree impugned, judgment & decree of the trial Court and records of the Courts below.

7. Learned counsel for the appellant vehemently argued that this is a suit based on title in terms of Article 65 of the Limitation Act, 1963 and in such suit the plaintiff is required to prove that he was owner and title holder of the suit property, he is not required to prove that when the respondent has entered into possession or what is the nature of possession of the respondent, inter alia, to defend such suit the respondent is required to prove the fact that he is in possession of the suit property and nature of possession is adverse, that too from more than twelve years. Learned counsel further argued that specific finding has been given by the lower appellate Court vide judgment dated 15.12.99 that the present respondent has not perfected its title by way of adverse possession, therefore, the appellant is entitled for possession and mesne profit.

8. On the other hand, learned Government Advocate for the State/respondent opposed the appeal and argued that present respondent is in possession of the suit property since 1941- 42 as a owner of the suit property, therefore, the appellant is not entitled for possession.

9. As per oral and documentary evidence of the parties, predecessor-in-title of the appellant has acquired the property and has purchased the property as auction purchaser vide Exs.P/1 to P/7. Present respondent is in possession over 0.20 acre of the land. The respondent has constructed go-down, the respondent was using the land as go-down. The respondent has not claimed adverse possession over the suit property, the respondent has not adduced any evidence to show that possession of the respondent was adverse to the appellant and that too within the knowledge of the appellant. Possession of the respondent by using the same as go-down is not disputed by any of the parties.

10. As per evidence of the respondent's witnesses, present respondent is in possession over the suit property since 1941-42. Article 65 of the Limitation Act reads as under:-

65. For possession of immovable Twelve years When the property or any interest therein possession based on title. of the defendant

Explanation.-For the becomes purposes of this article- adverse to the

(a) where the suit is by a plaintiff. remainderman, a reversioner

(other than a landlord) or a

devisee, the possession of the

defendant shall be deemed to

become adverse only when the

estate of the remainderman,

reversioner or devisee, as the

case may be , falls into

possession;

(b) where the suit is by a Hindu

or Muslim entitled to the

possession of immovable property

on the death of a Hindu or Muslim

female, the possession of the

defendant shall be deemed to

become adverse only when the

female dies;

(c) where the suit is by a

purchaser at a sale in execution

of a decree when the judgment-

debtor was out of the possession

at the date of the sale, the

purchaser shall be deemed to be a

representative of the judgment-

debtor who was out of possession

11. In order to obtain possession on the basis of title, the appellant is required to prove his title and to show that possession of the defendant was not adverse of the plaintiff.

12. The plaintiff has proved his title over the suit property. The respondent was under obligation to prove adverse possession, but the respondent has failed to adduce any evidence or to make pleading of adverse possession, inter alia, by deciding the issue framed by this Court the lower appellate Court has held that the respondent has not perfected its title by way of adverse possession, which has not been challenged by the respondent.

13. In absence of any plea and prove of adverse possession and challenge, the appellant is entitled for possession of the suit property on the basis of title and the plaintiff cannot be non-suited on the ground that he failed his possession in respect of the property within twelve years or has not filed suit for possession within twelve years.

14. Consequently, substantial question No.1 formulated for the decision of this second appeal is decided as negative. On the basis of decision on substantial question of law, the appeal deserves to be allowed and it is hereby allowed. Judgment & decree of both the Courts below are set aside and suit filed on behalf of the appellant is decreed on following terms:-

(i) The appellant is entitled for possession of the suit property bearing khasra No.225/2, area 0.20 acre shown in map annexed with plaint situated at village Akaltara, Tahsil Janjgir.

(ii) Parties shall bear their own costs.

(iii) Advocate fee as per schedule.

(iv) Decree be drawn accordingly.