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J. P. Gupta, J.
Ramayan Prasad (Since Deceased) through LRs & Others v. Smt. Indrakali & Others
Second Appeal No. 451 of 1993 (Jabalpur); against the judgment and decree dated 20.9.1993 passed by the First Additional Sessions Judge, Sidhi in Civil Appeal No. 27-A/1984, arising from the judgment and decree dated 17.2.1984 passed by the Additional Civil Judge, Class I, Sidhi in Civil Suit No.455-A/1983; Decided on 30.7.2019
(1) Limitation Act, 1963 -- Arts. 100, 58, 50 and 113 -- suit for declaration of title, possession and perpetual injunction -- Art. 100 not attracted as suit is not for declaration of order of Board of Revenue as null and void -- it comes in purview of Arts. 50 and 113 -- appellants/defendants challenged title of respondents/plaintiffs in mutation proceeding -- proceeding finally disposed in favour of appellants/defendants by order dated 18.12.1970 passed by Board of Revenue -- suit for declaration of title should have been filed within three years -- filed in 1977 -- is time barred -- suit for perpetual injunction not time barred. 2015 MPLJ 376 distinguished. [Paras 9 & 12
(2) Practice -- cause of action and limitation -- suit time barred for declaration of title -- suit for perpetual injunction based on possession can be filed as both have separate and distinct cause of action. [Para 10
(3) Limitation Act, 1963 -- Art. 58 -- words "first accrues" -- would govern only suit for relief of declaration -- will not cover other reliefs governed by other Articles of Limitation Act. (2011)9 SCC 126 distinguished. [Para 11
(4) Registration Act, 1908 -- S.49 -- effect of non-registration of documents required to be registered -- in absence of registration, transfer of title cannot be effected -- plaintiffs/respondents cannot claim title and no title can be declared on basis of unregistered sale deed. [Para 13
(5) Adverse Possession -- fact that plaintiffs/respondents are in possession of suit land since 28.5.1950 as owner, was in knowledge of appellants/respondents since beginning and later on since 1961 when proceedings for mutation commenced -- appellants/defendants have right to get possession back within 12 years -- plaintiffs/respondents' possession on suit land matured by adverse possession -- right of appellants/defendants ceased by provisions of S. 27 of Limitation Act. 1987 JLJ 159 and MPWN 1986 (I) SN 48 relied on. [Para 17
(6) Adverse Possession -- plea of adverse possession can be considered only as shield/defence by defendants to protect possession -- plaintiffs cannot claim decree for declaration of title on basis of adverse possession -- are entitled to get relief of perpetual injunction to protect their possession on suit land. 2014(I) MPWN (SC) followed. [Paras 19 & 20
¼1½ ifjlhek vf/kfu;e] 1963 && vuq-100] 58] 50 rFkk 113 && gd dh ?kks"k.kk] dCtk rFkk 'kk'or O;kns'k gsrq okn && vuq- 100 vkÑ"V ugha D;ksafd okn jktLo eaMy dk vkns'k vÑr vkSj 'kwU; ?kksf"kr djkus ds fy, ugha gS && og vuq- 50 rFkk 113 ds {ks= esa vkrk gS && vihykFkhZx.k@izfroknhx.k us ukekarj.k dk;Zokgh esa izR;FkhZx.k@oknhx.k ds gd ij vk{ksi fd;k && jktLo eaMy }kjk ikfjr vkns'k fnukad 18-12-1970 }kjk dk;Zokgh varr% vihykFkhZx.k@izfroknhx.k ds i{k esa fujkÑr && gd dh ?kks"k.kk ds fy, okn rhu o"kZ ds Hkhrj izLrqr fd;k tkuk pkfg, Fkk && okn lu~ 1977 esa izLrqr fd;k x;k && le;oftZr gS && 'kk'or O;kns'k ds fy, okn le;oftZr ughaA 2015 ,e ih ,y ts 376 izHksfnrA ¼iSjk 9 ,oa 12
¼2½ izFkk && okn gsrqd rFkk ifjlhek && gd dh ?kks"k.kk ds fy, okn le;oftZr && dCts ij vk/kkfjr 'kk'or O;kns'k ds fy, okn izLrqr fd;k tk ldrk gS D;kasfd nksuksa ds okn gsrqd i`Fkd~ vkSj lqfHkUu gSaA ¼iSjk 10
¼3½ ifjlhek vf/kfu;e] 1963 && vuq-58 && 'kCn ßizFke ckj mn~HkwrÞ && dsoy ?kks"k.kk ds vuqrks"k dk okn fu;af=r gksxk && ifjlhek vf/kfu;e ds vU; vuqPNsnksa }kjk fu;af=r vU; vuqrks"k vkPNkfnr ugha gksaxsA ¼2011½9 ,l lh lh 126 izHksfnrA ¼iSjk 11
¼4½ jftLVªhdj.k vf/kfu;e] 1908 && /kkjk 49 ftu nLrkostksa dk jftLVªhdj.k vko';d gS mUgsa jftLVªhÑr ugha fd, tkus dk izHkko && jftLVªhdj.k ds vHkko esa gd dk varj.k izHkkoh ugha fd;k tk ldrk && oknhx.k@izR;FkhZx.k gd dk nkok ugha dj ldrs rFkk vjftLVªhÑr foØ; foys[k ds vk/kkj ij gd ?kksf"kr ugha fd;k tk ldrkA ¼iSjk 13
¼5½ izfrdwy dCtk && ;g rF; fd okn Hkwfe ij oknhx.k@izR;FkhZx.k dk Lokeh ds :i esa 28-5-1950 ls dCtk Fkk] vkjaHk ls gh vihykFkhZx.k@izR;FkhZx.k dks Kkr Fkk rFkk ckn esa lu~ 1961 ls Kkr Fkk tc ukekarj.k dk;Zokgh vkjaHk gqbZ && vihykFkhZx.k@izfroknhx.k dks 12 o"kZ ds Hkhrj dCtk okil izkIr djus dk vfèkdkj gS && okn Hkwfe ij izfrdwy dCts ls oknhx.k@izR;FkhZx.k dk dCtk ifjiDo gks x;k && ifjlhek vf/kfu;e dh /kkjk 27 ds mica/kksa ds dkj.k vihykFkhZx.k@izfroknhx.k dk vf/kdkj lekIr gks x;kA 1987 ts ,y ts 159 rFkk e-iz- ohDyh uksV~l 1986¼1½ 'kkW- uks- 48 voyafcrA ¼iSjk 17
¼6½ izfrdwy dCtk && izfrdwy dCts ds vfHkokd~ ij dCts dh lqj{kk ds fy,
JUDGMENT
1. This second appeal has been preferred under section 100 of the Code of Civil Procedure against the judgment and decree dated 20.9.1993 passed by First Addl. Sessions Judge, Sidhi in Civil Appeal No. 27-A/1984, confirming the judgment and decree dated 17.2.1984 passed by Additional Civil Judge, Class I, Sidhi in Civil Suit No. 455-A/1983 whereby respondents/plaintiffs’ suit for declaration of title, possession and perpetual injunction for restraining to interfere in the possession of the suit premises has been decreed.
2. Facts giving rise to filing of the present appeal, briefly stated, are that on 20.7.1977, original plaintiff filed a suit for declaration and perpetual injunction before the trial Court against the respondents with regard to the suit land bearing Khasra No.71, area 0.36 acres, Khasra No. 73 area 0.65 acres, situate at village Gulbaspur, Tahsil Churhat, District Sidhi, stating that grandfather of the appellant Laxmi Narayan was the Bhoomiswami of the land and after his death, his son Ramgulam father of the appellants became the Bhoomiswami of the land and Ramgulam was missing more than seven years and none heard about him that whether he was alive or not. Deeming him to be dead, the appellants, being the heirs of Ramgulam sold the aforesaid land to the father of plaintiff Nos.3 to 5 Mukutdhari for Rs. 216/- on 28.5.1950 and the sale deed was executed and possession was delivered. Mukutdhari purchased the aforesaid land as a property of Joint Hindu Family of plaintiffs, therefore, the plaintiffs are owners of the suit land and have joint possession. There was a dispute between plaintiffs and defendants with regard to mutation in revenue record which was disposed of in favour of the appellants/defendants by the Board of Revenue on 18.12.1970 but it was not in the notice of the plaintiffs. The plaintiffs are in continuous possession of the suit premises since 28.5.1950 as owners, therefore, also on the ground of adverse possession, they accrued title on the land before filing the suit. The appellants/defendants interfered in the possession of the plaintiffs, therefore, instant suit has been filed for declaration of title and possession on the land and perpetual injunction to restrain appellants/defendants to interfere in the possession of the respondents/plaintiffs.
3. Appellants/defendants have filed their written-statement contending that they never executed the sale deed and when their father was alive, they had no title over the property, therefore, question of transferring the suit land by sale deed does not arise and no title and interest occurred by the so called sale deed. The appellants/defendants are in possession of the suit land and the suit is time barred, proceeding for mutation was pending from 1961 and the Board of Revenue decided it finally by its order dated 18.12.1970 which was in the knowledge of the plaintiffs, therefore, the suit for declaration is time barred and on the suit land, the plaintiffs have no adverse possession, therefore, suit be dismissed.
4. That, after trial, learned trial Court has held that the appellants/defendants executed the unregistered sale deed on 28.5.1950 in favour of Mukutdhari and also delivered possession to him and on the basis of the aforesaid sale deed, plaintiffs became owners of the property and they have legal possession on the suit premises and the suit is not time barred. In the appeal, learned first appellate Court confirmed the findings of the trial Court with regard to execution of the sale deed by the appellants/defendants and in addition also held that plaintiffs are owners of the property on the ground of adverse possession.
5. Appellants/defendants have challenged the aforesaid findings of both the Courts below on the ground that admittedly the sale deed is an unregistered document of more than Rs.100/- and in absence of registration on the basis of sale deed, it cannot be deemed that title was transferred in favour of Mukutdhar, on beh
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