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2003(2) Supreme 512
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
R.C. Lahoti & Arun Kumar, JJ.
Bondar Singh & Ors. -Appellants
versus
Nihal Singh & Ors. -Respondents
Civil Appeal No. 7579 of 1999
Decided on 4-3-2003
Counsel for the Parties :
For the Appellants : U.N. Bachawat, Sr. Advocate, A.P. Dhamija, Mrs. Pratibha Jain, Pradeep Aggarwal, Ms. Anjali Doshi, Ms. Ruchi Kohli, Alok Bachawat, L.P. Singh and Sushil Kumar Jain, Advocates.
For the Respondent : A.K. Chitale, Sr. Advocate, M. Mannan, Niraj Sharma, Advocates.
For the State of M.P. : P.C. Sen and S.K. Agnihotri, Advocates.
Held : If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 C.P.C. A High Court cannot shut its eyes to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed. (Para 4)
(ii) Suit for declaration of title by adverse possession-Question of continuous hostile possession of suit lands by plaintiffs (respondents)-Father of appellants (defendants) executed an unstamped, unregistered sale deed in 1949-50-He never disputed title of plaintiffs when alive-Defendants disputed before revenue authorities but failed-Till 1962 plaintiffs were in possession-When threatened by force suit was filed-Plea of sub-tenancy was an after thought-High Court found possession of plaintiffs since 1931 till present suit filed in 1972-Whether stand of the appellants- defendants in appeal to Supreme Court to the contrary sustainable? (No)-Appeal dismissed.
Held : It appears that having failed to obtain possession of the suit land through lawful means, the defendants tried to dispossess the plaintiffs forcibly which led to the present suit being filed on 15.4.1972. The claim of the defendants regarding taking possession of suit land from plaintiffs in 1957-58 having been found to be false, it follows that the defendants never came into possession of the suit land. Another significant conclusion which follows from these facts is that the defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P.6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established. (Para 6)
The result of the above discussion is that there is no merit in this appeal. The stand taken by the defendants/appellants is totally untenable. The appeal is dismissed leaving the parties to bear their respective costs. (Para 11)
Key Points: - The High Court is justified in setting aside findings of fact in a second appeal under Section 100 C.P.C. if those findings are contrary to the evidence on record and perverse (!) . - An unstamped and unregistered sale deed, while inadmissible to convey title, can be looked into for the collateral purpose of determining the nature of a party's possession (!) . - The plaintiffs were found to be in continuous and uninterrupted possession of the suit land since 1931, asserting a hostile title against the defendants (!) . - The defendants' claim that they took possession of the land in 1957-58 was found to be false based on their continued litigation before revenue authorities until 1962 (!) (!) . - The plea of sub-tenancy (shikmi) raised by the defendants was rejected because it was not pleaded in the written statement and lacked supporting evidence (!) (!) . - The Supreme Court dismissed the appeal, affirming the High Court's decision that the plaintiffs had established their title by adverse possession (!) (!) .
JUDGMENT
Arun Kumar, J.-This appeal is directed against the judgment and decree dated 16th November, 1998 passed by the Indore Bench of the High Court of Madhya Pradesh. As a result of the decision of the High Court the suit filed by the plaintiffs/respondent was decreed. The plaintiffs had filed a suit for declaration that they had become owners of the lands in suit by adverse possession and for injunction to restrain the defendants from interfering with the plaintiffs possession of the suit lands. The trial Court had decreed the suit, however, the appeal filed by the defendants against the trial court judgment was allowed by the Additional District Judge, Dhar, M.P. and the suit was ordered to be dismissed. Further an appeal filed by the plaintiffs against the said judgment of the Additional District Judge was allowed by the High Court and the suit was finally decreed.
2. Briefly the facts are that the plaintiffs (respondents herein) claim title to the land in suit on the basis of the plea that they had become its owners by adverse possession. The land was owned by one Fakir Chand predecessor in interest of the appellants herein (defendants in the suit). Fakir Chand sold the land to Tola Singh, predecessor in interest of the plaintiffs by an unstamped and unregistered sale deed dated 9.5.1931. The plaintiffs claim to have entered into possession of the land on the basis of the said sale deed and they claim to be continuously in possession since then. The defendants tried to dispossess the plaintiffs which led to the present suit being filed by them on 15.4.1972. In the written statement filed by the defendants they denied the sale of land by their father Fakir Chand to Tola Singh. They denied possession of the plaintiffs of the suit land. They also took the plea that the alleged sale deed was false, fictitious and without consideration. According to the defendants, their father was in possession of the lands till his death. After the death of their father, their mother had given possession of the land to Tola Singh for purpose of cultivation in order to earn some money for supporting her family. According to the defendants they had taken back possession of the land from Tola Singh in the year 1957-58. They also pleaded that after the death of Fakir Chand, the land had been mutated in their names in the revenue records to the knowledge of the plaintiffs. The plea of adverse possession was denied by stating that actually the defendants were in possession of the land and there was no question of adverse possession of the land by the plaintiffs qua the suit land.
3. The main question for consideration in the present suit is as to whether the plaintiffs were in hostile continuous possession of the suit lands by virtue of which they had perfected their title to the land by adverse possession. Both parties claim to be in possession of the suit land. While considering the above question, the Court will also have to look into the plea raised by the learned counsel for the appellants/defendants that the plaintiffs had come in possession of the suit land for a brief period after the death of Fakir Chand, father of the defendant as "Shikmi" that is sub-tenants. The plea of sub-tenancy was as such not raised in the written statement nor any issue was framed by the trial Court in this connection. No particulars of alleged sub-lease were given. Not even date of creation of alleged sub-lease was stated. The defendants have tried to build an argument based on plea of sub tenancy (shikmi) at appellate stage. In support of this plea they rely on certain entries in the revenue records. Since this plea pre-supposes possession of the plaintiffs, the defendants took the stand that they had taken back the possession of the land from the defendants.
4. Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It was contended that the question of possession is a question of fact and t
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