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PETITIONER: MADHAVKRISHNA & ANR.

       Vs.

RESPONDENT: CHANDRA BHAGA & ORS.

DATE OF JUDGMENT:       23/09/1996

BENCH: K. RAMASWAMY, G.B. FATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the judgment and order  dated July  3, 1995  passed by  the High Court of Madhya Pradesh Bench at Gwalior in S.A. No. 182/89.      The admitted  facts are  that Mansaram  had two sons by name,  Babulal   and  Parasram.   The  appellants   are  the descendants  through   Babulal  and  the    respondents  are descendants through  Parasram. In  an earlier  suit No. 384- A/64, the respondents pleaded in their plaint that Mansaram, Babulal and  Parasram were  members of the joint family and, therefore, each  of them  was entitled to 1/3rd share in the suit property.  They sought  for partition  and a decree for partition by  meets and  bounds to the extent of their 1/3rd share in the said house.      It was  held that  Mansaram was  the exclusive owner of the property  and   that it was not a joint  family property and that   the respondent have no right  to partition of the said property.  The decree  has  become    final.  Mansaram, during his  life time,  had executed  a registered  will  on March 28,  1964 bequeathing the properties to the appellants and Mansaram died on December 12, 1968. The appellants filed the suit  on November  14, 1977 for declaration of title and for possession thereof. The Civil Court in Suit No. 942-A of 1984, VIIth  Civil Judge,  Class II,  Gwalior by order dated May  10,  1985  decreed  the    suit.  On  appeal,  the  4th Additional Judge,  Gwalior upheld  the same  by  decree  and judgment dated August 21, 1989. The High Court in the second appeal while  upholding that  the Mansaram was the owner and had validly  bequeathed it  under the  Will in favour of the appellants set   aside  the decree  on the  ground that  the respondents had  perfected the  title by adverse possession. Thus, this appeal by special leave.      It is  seen that  the respondents have pleaded in their written statement in para 9 as under :      "The   plaintiffs   are   not   the      exclusive owners of the suit house.      The  northern   portion  of   House      Municipal   No.2/7    situated   at      Nimbaji Ka Bag, Jiwaji Lashkar, was

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    constructed   by    Parasram    and      Mansaram.  Parasram   had  died  25      years ago.  The defendants  are the      heirs  of  Parasram.  The  southern      portion  was   constructed  by  the      defendants and  Mansaram  together.      In this  way,  the  defendants  are      residing in  the suit house in  the      capacity of  owners which  fact  is      within   the   knowledge   of   the      plaintiffs and their ancestors from      the very beginning. House Municipal      No.   2/7 is  of  the  joint  Hindu      Family of  the plaintiffs  and  the      defendants. For  this  reason,  the      plaintiffs have  no right  to  file      suit and recover possession and the      defendants   being   in      actual      possession of  the  suit  land  for      over 12  years,  the suit is barred      by limitation  and deserves  to  be      dismissed.      No doubt  there is  an issue  raised  on  the  plea  of adverse possession   and   findings  recorded by  the courts below was that the respondents had not perfected their title by adverse  possession. The  High Court  has  reversed  that finding on  the ground  that  the  respondents  remained  in possession   for more  than  12  years  and    thereby  they perfected their  title by  adverse possession.  The question is: whether   the view of the High Court is correct in law ? A reading  of the  pleading would clearly indicate that they set up  their own   title  to the  property  and  they  have remained  in   possession  for   more  than  12  years  and, therefore, they  sought for the suit to be dismissed on that ground. In  view of  the fact  that Mansaram was found to be the owner  in the earlier suit and he  died  on December 12, 1968 until  then  the  question  of  adverse  possession  as against Mansaram  was not  pleaded. In   this  case,  except repeating the  title already  set up but which was negatived in the  earlier suit,  namely, that they had constructed the house jointly  with Mansaram,  there is  no specific plea of disclaiming the   title of the respondents from a particular date, the  hostile assertion  thereof and then of setting up adverse possession  from a  particular date to the knowledge of the  respondents and  of their  acquiescence. Under these circumstances, unless  the title  is disclaimed  and adverse possession with  hostile title  to that  of the Mansaram and subsequently as against the appellant is pleaded and proved, the plea  of adverse  possession cannot  be held  proved. In this case, such a plea was not averred nor evidence has been adduced. The doctrine of adverse possession would arise only when the party has  set up his own adverse title disclaiming the title  of the    plaintiff  and  established    that  he remained exclusively  in possession  to the knowledge of the appellant’s title  hostile  to  their  title  and  that  the appellant had acquiesced to the same. Since there is no plea that he  had claimed any hostile title against Mansaram, the owner of  the property,  the earlier  decree operates as res judicata. The  present suit  was filed  within 12 years from date of  the demise  of Mansaram; hence, it was obvious that no adverse  possession    has  been  perfected  against  the appellant. Moreover,  as against  Mansaram, the  predecessor in title  of the appellant,  the  earlier decree operated as constructive res judicata. The present suit was filed within 12 years  from the date of the demise of Mansaram; hence, it

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was obvious  that no  adverse possession  had been perfected against the  appellant. Moreover,  as against  Mansaram, the predecessor in  the title   of   the  appellant, the earlier decree  operates   as  constructive   res  judicata  of  the principle of might and ought. The High Court, obviously, was incorrect in  its finding that the respondents had perfected their title by adverse possession.      The appeal  is accordingly  allowed. The  judgment  and decree of  the High  Court stands  set aside and that of the trial Court  and the  appellate  Court  stand  restored.  No costs.