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PETITIONER: ROOP SINGH (DEAD) THROUGH LRS

       Vs.

RESPONDENT: RAM SINGH (DEAD) THROUGH LRS

DATE OF JUDGMENT:       28/03/2000

BENCH: M.B.Shah, Doraswami raju

JUDGMENT:

     Shah, J.

     This  appeal  is  directed against  the  judgment  and decree  dated September 29, 1988 passed by the High Court of Madhya  Pradesh  at Indore in Second Appeal No.255 of  1977, whereby  the  High  Court  allowed   the  Second  Appeal  of respondent-defendant  and set-aside the judgment and  decree for possession of the suit land.

     It  is the case of the appellant-plaintiff Roop  Singh (since  deceased) that he owned 15.32 acres of  agricultural land  bearing  Survey  No.106 in village Shivana  of  Tehsil Bhikangao.   As  the land was in illegal possession  of  the respondent  Ram Singh (original defendant  since deceased), a notice dated 07.6.1966 was issued by the appellant calling upon  the  respondent to restore the possession of the  suit land.   The  respondent did not hand over the possession  of the  land.  Hence the plaintiff filed Civil Suit No.10A/1969 before  the  Civil Judge, Bhikangaon (MP) for possession  of the  suit  land with mesne profit @ Rs.500/- per year.   The defendant  denied the contention that he was trespasser  and submitted  that 14 years prior to the date of institution of the  suit he had purchased the suit land for a consideration of  Rs.611/-  and  had paid full sale consideration  to  the plaintiff  and  since then he was in possession of the  suit land.   He contended that his possession is protected  under Section  53A  of  the  Transfer of Property  Act.   He  also pleaded   that  he  has  acquired   the  title  by   adverse possession.  In the alternative, he pleaded that he has made improvements in the suit land and if order for restoring the possession  is  passed, plaintiff should be directed to  pay the  cost  of  improvements.  By judgment and  decree  dated 30.7.1971,  the  Civil Judge passed decree in favour of  the plaintiff.   But  the  Additional District Judge  in  Appeal No.46A/71  allowed the appeal and remanded the matter to the trial  court  for disposal after framing  necessary  issues. The Trial Court inter alia decided following two issues:  -

     Whether the plaintiff had made a written contract for the  sale of the disputed land in 1955 or near about it with the  defendant  or  his deceased brother Manohar  Singh  and

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delivered  the  possession  of  the  disputed  land  to  the defendant  after receiving the consideration of Rs.611/-  of the disputed land?

     Whether  the  defendant had acquired the title of  the disputed land by adverse possession?

     After  appreciating the evidence, the Court arrived at the  conclusion  that  the defendant has not  made  all  the pleadings  which are necessary for getting protection  under Section  53-A  of the Transfer of Property Act.   The  Court also held that even if pleadings are presumed, defendant has failed  to prove the said contention as so-called  sale-deed was  not produced on record and it was alleged that the said document  was  with  the brother of the  defendant  who  had expired  because  of snake bite and the document  was  lost. Therefore,  Court  held that the statement of the  defendant was not sufficient to establish the so-called sale.  For the adverse possession, the Court arrived at the conclusion that defendant  has failed to prove adverse possession because he has  specifically pleaded that he got possession of the suit land  as  a result of contract with the  plaintiff.   Hence, defendants  entry  on the suit land was permissive and  the permissive  possession would become adverse only if  hostile title  is  asserted  and proved by overt  acts.   The  trial court,  therefore,  decreed  the suit of  the  plaintiff  by judgment and decree dated 15.3.1976.

     Civil  Appeal No.20A of 1976 filed by the  respondents was  dismissed by the Addl.  District Judge, Bargon on  24th March,  1977.  The appellate court considered the contention of  the defendant for the alleged sale of the suit land  and arrived  at  the conclusion that the defendant  has  neither produced  on  record  the   so-called  letter  nor  document executed in his favour by the plaintiff, nor he has taken it as  a  ground  in  his pleading that he had  lost  the  said document,  nor  he  has prayed for production  of  secondary evidence.   The Court further appreciated the contention  of the  defendant with regard to the alleged sale by  observing that  even  the so-called witnesses, in whose  presence  the talks  for  sale took place, namely, Gulab Singh  and  Dhyan Singh,  were  not  examined by the defendant to  prove  that contract.   As against this, it was found that plaintiff had handed  over  the land to the defendant in the year  1957-58 for  batai (half share) only for two years and the defendant had  not  restored  the  land.  The  Court  arrived  at  the conclusion  that this fact is borne out by Ex.P1 Khasra  for the  Samvat Year 2014-15.  The Court further considered that in the Khasra for the Samvat Year 2015- 16 in remarks column there  is no reference of any agreement of sale.  The  Court also  referred  to  khatauni, P1 produced by  the  plaintiff which  mentioned  that  disputed land stood in the  name  of defendant  not  as  an  owner.  The  Court  appreciated  and accepted  the evidence of plaintiff that he has neither sold the  land  nor did he execute any document in favour of  the defendant.   After  considering the evidence on record,  the court  observed  that from the deposition of  the  witnesses examined  by  the defendant it can be stated that he was  in possession  of the suit land since 1956-57, but there is  no evidence  about  the  sale  in  his  favour  and  held  that plaintiff  had given this land to defendant on batai for two years  i.e.   for  Samvat  Year   2014-15  and  2015-16  and thereafter  defendant had been continuously in  unauthorised

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possession.   But  from this fact, it can not be  held  that defendant had acquired title by adverse possession.

     Against  the  said judgment and decree, the  defendant preferred Second Appeal No.255 of 1977 before the High Court of  Madhya Pradesh.  The High Court allowed the said  appeal and  set-aside  the judgment and decree passed in favour  of the  plaintiff.   That judgment and decree is challenged  by the plaintiff by filing this appeal.

     The  learned  counsel  appearing  on  behalf  of   the appellant  vehemently submitted that the judgment and decree passed  by the High Court is, on the face of it, illegal and erroneous  as the High Court has failed to raise and  decide substantial  question of law.  She submitted that High Court has re- appreciated the evidence considered by the appellate court  and the trial court and arrived at a conclusion which is  contrary  to  the evidence on record.  As  against  this learned  counsel for the respondent submitted that the  High Court  passed  the  judgment and decree  after  framing  the substantial  question  of  law and in any  case  High  Court rightly held that the defendant has perfected his title over the  suit land by occupying the same for more than 12 years. He  submitted that the High Court rightly observed that  the settled legal position was that as soon as the possession of the  premises  is  handed over pursuant to an  agreement  to sale,  adverse  possession  commences from  that  date  and, therefore, defendant has perfected his title by remaining in possession  of  the suit land continuously for more than  12 years as an owner.

     It  is to be reiterated that under Section 100 of  the CPC  jurisdiction  of the High Court to entertain  a  second appeal  is  confined  only  to such  appeals  which  involve substantial  question  of  law and it does  not  confer  any jurisdiction  on  the  High  Court to  interfere  with  pure questions  of  fact while exercising its jurisdiction  under Section  100  CPC.  That apart, at the time of disposing  of the  matter the High Court did not even notice the  question of  law  formulated  by it at the time of admission  of  the second appeal as there is no reference of it in the impugned judgment.   Further, fact findings courts after appreciating evidence  held that defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as  to  when it became adverse and hostile.  These  findings recorded   by  two  courts  below   were  based  on   proper appreciation  of  evidence and material on record and  there was  no  perversity,  illegality or  irregularity  in  those findings.   If the defendant got the possession of suit land as  a  lessee  or  under a batai  agreement  then  from  the permissive  possession it is for him to establish by  cogent and   convincing  evidence  to   show  hostile  animus   and possession adverse to the knowledge of the real owner.  Mere possession  for  a long time does not result  in  converting permissive possession into adverse possession.  {Re:  Thakur Kishan  Singh (Dead) vs.  Arvind Kumar, [(1994) 6 SCC  591]. Hence,  the High Court ought not to have interfered with the findings of fact recorded by both the courts below.

     It  also  appears that the High Court has ignored  the finding  of fact to the effect that defendant has failed  to prove the so-called agreement to sale in his favour.  He has not  produced  on  record  the said sale-deed  or  a  letter executed  by the plaintiff in favour of the defendant or his

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brother.   The  Appellate  Court has further  observed  that defendant has not led the evidence of the witnesses in whose presence the said document was executed.  In our view, there being  no  document on record, the alleged contents  of  the deed could not have been considered by referring to the oral say of the defendant.

     Further,  even with regard to appreciation of evidence the  High Court materially erred in considering the evidence of  Anoop  Singh  for  holding that defendant  had  been  in possession  for  15-16 years from the date of the  suit  and that  possession  being  not permissive and adverse  to  the title  of  the  plaintiff, would ripen into  perfect  title. This  finding  is  quite contrary to the evidence  of  Anoop Singh  and  the finding given by both the courts  below  who after   appreciating   the  evidence   of   witnesses   have specifically  arrived  at the conclusion that the  witnesses have  nowhere  stated  that defendant asserted  his  hostile title.   From  the deposition of the said witnesses and  the revenue  records, the Courts arrived at the conclusion  that since  1956-57  the  defendant was in  possession  but  that possession  was  as  a bataidar.  As the suit was  filed  on 04.2.1969,  it  cannot be said that defendant has  perfected his  title by adverse possession.  In the written statement, the  defendant  has  only asserted that about 14  years  ago plaintiff gave this land by executing the sale agreement for Rs.611/-;   the  sale  deed was written in presence  of  two persons  of the same village and hence since 1955  defendant is  in  possession  of  the   land  as  an  owner/purchaser. Therefore,  he  has  become owner of the  suit  property  by adverse  possession.  Except this bare evidence, there is no other  evidence  on record to establish that  defendant  got possession  of  the  property by purchasing  the  same.   As against  this,  the revenue record clearly establishes  that plaintiff  was  the  owner of the property and that  he  had handed over the possession of the suit land to the defendant for cultivation as bataidar.  It appears that the High Court materially  erred  in  not  referring  to  the  evidence  of plaintiff  who  has  specifically deposed that in  the  year 1956- 57 he had given the suit land to the defendant for two years  on  batai.   It  is also to be stated  that  plea  of adverse possession and retaining the possession by operation of  Section  53-A  of  the  Transfer  of  Property  Act  are inconsistent  with  each  other.   Once it  is  admitted  by implication  that plaintiff came into possession of the land lawfully  under  the  agreement and continued to  remain  in possession  till  the date of the suit, the plea of  adverse possession would not be available to the defendant unless it has  been  asserted  and  pointed   out  hostile  animus  of retaining possession as an owner after getting in possession of  the  land.  (Re:  Mohan Lal vs.  Mirza Abdul Gaffar  and Anr., {(1996) 1 SCC 639}.

     In the result, the impugned judgment and decree passed by  the High Court in Second Appeal No.255 of 1977  requires to  be  set  aside and is hereby set aside.  The  appeal  is allowed  and the judgment and decree passed by the Appellate Court  in  Civil Appeal No.  20-A of 1976 is restored.   The parties shall bear their respective costs.

     Ordered accordingly.

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