PETITIONER:
KALIKA PRASAD & ANR.
Vs.
RESPONDENT:
CHHATRAPAL SINGH (DEAD) BY LRS.
DATE OF JUDGMENT: 18/12/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
This appeal by special arises from the judgment of the learned single Judge of the High Court of Madhya Pradesh made on October 12, 1985 in Second Appeal No.309/80.
The admitted facts are that the appellant plaintiff filed a suit for declaration of title and for possession of agricultural lands covered under the schedule of the plaint. The respondent pleaded adverse possession. The trial Court, therefore, recorded a finding that the respondent had perfected the title by adverse possession for having remained in possession for more than 12 years. On appeal, the District Judge reversed the decree on the ground that the respondent had come into possession under a power of attorney and, therefore, he remained to be in possession as an agent on behalf of the principal. The appellant claimed title through one of the principals who had given power of attorney under Ex. P.3. Respondent admitted that he had come into possession thereunder and, therefore, he cannot plead adverse possession against the appellant. In second appeal, the learned single Judge considered the controversy in relation to the documentary evidence and held thus:
"The word ’Shikmi’ used in the
application has, therefore, to be
construed in the context of the
facts expressly stated therein.
Ex.P-3 is the statement of
defendant Chhatarpal Singh nowhere
admitted his possession through the
plaintiffs. He expressly stated
that his possession was a result of
an arrangement made before
abolition of Jagirs. No doubt, he
also said that the Pawaidars
Ramkishore and Vimalprasad had
given Mukhtiyarnama, to begin with,
but the Mukhtiyarnama was cancelled
long back. He nowhere admitted the
Mukhtiyarnama being given by
plaintiffs Kalika Prasad and
Ambika Prasad or his possession
being through the plaintiffs at any
time. Ex. P-4 is the order dated
3.6.1969 in the proceeding
rejecting the defendant’s
application under Section 190 of
the Code. In my opinion, there is
nothing in these documents, which
can be construed as defendant
inducted into the suit-land by the
plaintiffs so as to constitute his
possession as permissive through
the plaintiffs. His admission of
initial entry under a Mukhtiyarnama
given by the other Pawaidars was
only in respect of his possession
prior to abolition of jagirs and it
is obvious that the same is of no
co sequence after abolition of is
of no consequence after abolition
of Jagirs, which itself is an event
more than twelve years prior to the
date of suit. The only remaining
document for consideration is Ex.
D-9. This is an order dated
30.7.1959 on an application made by
Ramkishore, one of erstwhile
Pawaidars claiming a similar
interest in the suit-land, as the
present plaintiffs by seeking a
declaration under Section 169 of
the M.P. Land Revenue Code. That
application was dismissed holding
that the plaintiff had no right
over the suit land to challenge the
defendant’s possession therein.
This document itself is sufficient
to indicate the assertion of
hostile title by defendant
Chhatarpal Singh and his claim of
possession over the suit-land in
his own right at least when the
application under Section 169 of
the Code was filed on 8.11.1957 by
Ramkishore making the same
assertion that the possession of
Chhartarpal Singh over the suit
land was as Mukhtiyar of the
Pawaidars. This claim was rejected
on 30.7.91. This document alone
proves defendant’s adverse
possession for more than twelve
years prior to the date of suit.
It is, therefore, clear that the
first appellate Court misread and
misconstrued the aforesaid
documents, Ex.P-1 to Ex.P-4 & Ex,
D-9, to reach the conclusion that
defendant’s possession over the
suit-land was permissive, on
account of which the plaintiff’s
suit could be decreed. Reversal of
the Trial Court’s finding was the
result of this error. The
conclusion reached by the first
Appellate Court being contrary to
law, has to be set-aside."
On that basis, the learned single Judge concluded that the documentary evidence, Ex.P1 to P4 and D-9 was misconstrued by the District Court to come to the conclusion that the respondent had come into possession by a permissive possession and remained in that capacity. Accordingly, he set aside the decree and concluded that he respondent had perfected his title by adverse possession.
Shri A.K. Chitale, learned senior counsel for the appellant, contends that the view taken by the High Court is not correct in law. According to the learned counsel, the estate was abolished with effect from February 15, 1954; the appellant had obtained a patta under Section 190 of the M.P. Land Revenue Code on August 10, 1965, for conferment of asami rights which was rejected; for the first time, the asserted his title to the property only on making an application on August 10, 1965; the suit came to be filed within 12 years from the date and, therefore, the respondent had not perfected his title by prescription. We are unable to agree with the learned counsel. The learned Judge has recorded the finding that even after the abolition till the date of the filing of the suit, the respondent had remained in uninterrupted possession and thereby he perfected his title by prescription. It is also an admitted position that the power of attorney given to the respondent was cancelled and thereafter no action was taken to have him ejected from the lands in his possession. After the abolition of the estate, no attempt was made to have him ejected. When we have put a question to the learned counsel whether any notice was given to the respondent by the other party before obtaining the patta under Section 189 on July 22,1959, the learned counsel is unable to place before us any material to show that such a notice was given to him. Obviously, therefore, the patta was obtained without notice to him. The respondent having remained, without any interruption, for well over 12 years, it would be obvious that he remained in possession in assertion of his own right, that too after the abolition of the estate. Thereby, he perfected his title by prescription since any person who got superior right had taken no action to have him ejected from the lands. Under these circumstances, the finding recorded by the High Court has not been vitiated by any manifest error of law creating any substantial question of law for interference in this appeal.
The appeal is accordingly dismissed. No costs.