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2019 Supreme(MP) 611
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
VIVEK RUSIA, J.
Sabbir Khan (Deceased) through L.Rs. Habib Khan & others - Appellants.
Versus
Sher Mohmmad & others - Respondents
S.A. No.421 of 2001
Decided on : 15-10-2019
Advocate Appeared:
For the Appellant :Shri A.S. Garg, Sr. Advocate with Shri Sapnesh Jain, Adv
For the Respondent: Shri Gulab Sharma, Adv
The plaintiff established adverse possession over the suit property, and the element of animus was present against the appellants.
Headnote:
Adverse Possession - Property Dispute - C.P.C. - [FACT OF THE CASE] The plaintiff filed a suit for declaration of title and permanent injunction against his father, claiming adverse possession of the suit property. The trial court held in favor of the plaintiff, which was upheld by the first appellate court. The second appeal raised substantial questions of law regarding adverse possession and the relationship between the parties. [FINDING OF THE COURT] The court found that the plaintiff had established adverse possession over the suit property and that the element of animus was present against the appellants. [ISSUES] The issues revolved around adverse possession, the relationship between the parties, and the plea of benami transaction. [RATIO DECIDENDI] The court held that the plaintiff had acquired title by way of adverse possession, and the element of animus was present against the appellants. The court also discussed the prohibition of benami transactions and the retrospective nature of the relevant law. [FINAL DECISION] The court dismissed the appeal, upholding the lower courts' decisions in favor of the plaintiff.
JUDGMENT :
This is an second appeal filed under section 100 of the C.P.C. by the defendants against the judgment & decree dated 19.2.1996 passed by Civil Judge, Class-II, Khategaon in Civil Suit No.68-A/1980 and judgment & decree dated 18.7.2001 passed by Addl. District Judge, Kannod, District Dewas in Civil Regular Appeal No.92-A/1996.
2. Facts of the case, in short, are as under :
(i) Sher Mohmmad/Respondent No.1( herein after referred as ‘Plaintiff’) filed the suit for declaration of title and permanent injunction against his own father – Abdul Khan, (now dead). According to the plaintiff, till 1952-53, he lived with his father and three brothers in Village Janjalkhedi, Tehsil Kannod.
Thereafter, dispute arose between his wife and mother; therefore, he was separated from the family by his father hence he shifted to Harangaon along with his family. In the year 1953, he purchased the land bearing Survey No.245, 246, 247, 248, 251, 252, 253 and 254 total area 7.523 Hect. (Hereinafter referred to as “the suit property”) from Nandu Maharaj in Rs.1,500/-. He got the sale-deed registered in the name of his father – defendant No.1 and also got mutated his father's name in the revenue record, but he remained into the possession since then openly and without any irruption by the defendants, therefore, he has acquired the title by way of adverse possession. He further pleaded that he has constructed a house in the said land. He gave the details and boundaries of the suit property in Para 6 of the plaint. He has alleged that on 3.12.1975, defendant No.1 informed him that his other three sons are demanding partition of the suit property; therefore, he will have to partition the suit property also. The brothers of the plaintiff have created a dispute which was reported to the Police Station Khategaon u/s. 107 and 151 of the I.P.C. Because of the aforesaid cause of action accrued, in favour of the plaintiff to file the suit on 18.2.1976 against defendant No.1.
(ii) On 19.4.1976, defendants No.2 to 4 being the sons of defendant no.1 filed an application under Order 1 Rule 10 of C.P.C. seeking their impleadment in the pending suit as defendants. Vide order dated 30.7.1976, learned trial Court allowed the application and accordingly, they were impleaded in as defendant nos. 2 to 4. Defendant No.1 filed the written statement totally in support of the plaintiff. Defendants No.2 to 4 filed their written statement by submitting that the suit property was purchased from the income of joint family, therefore, the plaintiff alone cannot claim the title over the suit property. Defendant No.1 was head of the family and accordingly, the sale-deed was registered in his name.
(iii) After impleadment of defendants No.2 to 4 in the plaint, the plaintiff amended his plaint to claim the relief of permanent injunction against all the defendants that they be restrained to interfere into his peaceful possession and use of the suit property. He has amended the word 'defendant' by the word 'defendants' in the entire plaint, but did not amend the relief clause in respect of declaration of title by way of adverse possession against defendant No.1 alone.
(iv) On the basis of pleadings, learned trial Court framed 7 issues for adjudication. The issue in respect of purchase of suit property in the name of defendant No.1 was framed as an alternate issue of issue No.1. In support of his pleadings, the plaintiff examined defendant No.1 as P.W.1 and examined himself as P.W.2; Sonarayan as P.W.3; Ahmed Khan as P.W.4; and Gendalal as P.W.5 and got exhibited two documents viz. 'Khasra Panchsala' of the year 1974-75 as Ex. P/1 and the Will of Abdul dated 11.2.1985. The defendants No.2 to 4 in their defence examined themselves as D.W.1; D.W.2 & D.W.3; and Babu Khan as D.W.4 and got exhibited the statement of Sher Mohd. as Ex. D/1 and statement of defendant no.1 reordered in some other proceedings as Ex. D/2. During pendency of the suit, defendant No.1 expired on 13.1.1986 and in his
