IMPORTANT POINT
Plea of ownership based on sale deed and plea of adverse possession, both are contrary to each other and plaintiffs cannot be permitted to take both pleas at the same time.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Second Appeal No. 8 of 1999, the original defendant has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:-

2.1 That the respondent No.1 herein – original plaintiff filed a suit seeking declaration of ownership and permanent injunction against the defendant with regard to the suit property. The original plaintiffs claimed the title/ownership on the basis of the registered Sale Deed executed on 31.08.1967 in favour of their father and husband Dariyab Singh. The plaintiffs also claimed the title on the basis of the adverse possession. The learned Trial Court dismissed the suit.

2.2 The original plaintiffs preferred the appeal before the First Appellate Court. The learned First Appellate Court though held that the plaintiffs shall not get any right on the basis of the Sale Deed dated 31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observing that the plaintiffs are in possession of the suit land. The First Appellate Court also held that therefore, the plaintiffs have perfected their title by way of adverse possession. The First Appellate Court decreed the suit for title on adverse possession and issued the decree of permanent injunction restraining the defendant No.1 – appellant herein from interfering with the possession of the plaintiffs. The appellant herein – original defendant No.1 filed the second appeal before the High Court. The High Court framed the following substantial question of law:-

"Whether the First Appellate Court has erred in holding that the plaintiff has perfected his title on the disputed land by adverse possession?”

2.3 Though the High Court answered the aforesaid substantial question of law in favour of the appellant, however, thereafter did not interfere with the judgment and order passed by the First Appellate Court by observing that the First Appellate Court has specifically given the finding that the plaintiffs are in possession of the suit land since after execution of the Sale Deed dated 31.08.1967. Consequently, the High Court has dismissed the said second appeal. The impugned judgment and order passed by the High Court dismissing the second appeal is the subject matter of present appeal.

3. Learned counsel appearing on behalf of the appellant – original defendant No.1 has vehemently submitted that as such the plaintiffs filed the suit for declaration claiming ownership/title on the basis of the registered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed the ownership by adverse possession. It is submitted that all the Courts below had negated the claim of the original plaintiffs on the basis of the registered sale deed. It is submitted that thereafter the only question on behalf of the plaintiffs was the claim on the basis of the adverse possession. It is submitted that in the impugned judgment and order, the High Court has though held the substantial question of law on adverse possession in favour of the appellant by observing that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and plaintiffs cannot be permitted to take the same plea at the same time, thereafter the High Court has dismissed the appeal and confirmed the judgment and order passed by the First Appellate Court decreeing the suit for title and also passed the decree for permanent injunction.

3.1 It is vehemently submitted by the counsel on behalf of the appellant that once the original plaintiffs failed to get the decree for title/declaration on the basis of the Sale Deed executed on 31.08.1967 (Ex.P.1) and the substantial question of law with respect to the adverse possession was held in favour of the appellant by the High Court, thereafter the original plaintiffs shall not be entitled to the decree of permanent injunction.

3.2 It is further submitte