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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:                          O R D E R      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

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    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

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    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.