The main legal point established in the judgment is the applicability of adverse possession and the bar under Order 11 Rule 21 of CPC in land disputes.

JUDGMENT :

VIVEK RUSIA, J.

1. Appellant/Defendant No. 3 has filed the present second appeal being aggrieved by the judgment dated 30.01.1999 passed by IIIrd Additional District Judge, Indore in First Appeal No. 03/1997 affirming the judgment and decree dated 31.01.1997 in favour of plaintiff passed in Civil Suit No. 113-A/94 by Vth Civil Judge, Class-II, Indore.

2. By order dated 05.08.1999, this Court had dismissed the second appeal. Thereafter, defendant No. 3/appellant filed Civil Appeal No. 5835/2000 before the Hon'ble Supreme Court of India. Vide judgment dated 22.05.2007, by allowing the Civil Appeal the Supreme Court has remitted the second appeal back to the High Court for deciding on the following substantial questions of law:

(1) Whether the plaintiff's claim could be decreed without there being any challenge to the decision of the Revenue Authorities for restoration of possession to the appellant?

(2) Whether the learned Courts below are right in accepting the plaintiff's claim of possession in his own right or adverse possession?

(3) Whether the suit of the plaintiff was maintainable in view of the dismissal under Or. XI R. 21 of his earlier Suit No. 359/81?

3. At the very outset Shri A.K. Sethi, learned Senior Counsel for the appellant submits that he is not pressing this appeal on the question No. 1.

4. Late Siddhanath being a plaintiff ( since dead now represented through legal heirs) filed the civil suit claiming declaration of title and permanent injunction against the Collector, Indore and Additional Naib Tehsildar, Indore in respect of Government Charnoi agricultural land bearing survey No. 1488/1, area 3.23 acres of Gram Tejpurgadbadi, Indore (hereinafter referred to as ‘the suit land’). During the pendency of the suit, the present appellant viz. Zamindar Dharmik and Shekshnik Trust filed an application under Order 1 Rule 10 CPC and became the party in the suit as defendant No. 3 (hereinafter referred to as ‘the defendant No. 3’).

The facts of the case which led to this second appeal are as under:

(i) According to the plaintiff he is in possession over the suit property since 1945. He obtained the electricity connection, installed motor pump set and dug a well in it. His possession was in the knowledge of the general public and the Government as well. He got his name recorded in the Khasra Panchshala. He got constructed the house which is also recorded in the record of Municipal Corporation, Indore. The Additional Tehsildar, Indore registered a Revenue Case No. 449/A-68/1967-68 in respect of encroachment over the suit land. Vide order dated 04.09.1969, a direction was issued to Trusty Ram Nihalkaran Zamindar to vacate the suit land and fine was also imposed. The defendant No. 3 filed an application under section 57 of the M.P. Land Revenue Code before the Sub-Divisional Officer, for adjudication of right and title of the Trust. By order dated 19.09.1974 the Sub-Divisional Officer has decided the title of the appellant and directed for recording its name in the revenue records and accordingly it became property belonging to defendant no. 3/appellant.

(ii) The order of Sub-Divisional Officer dated 19.09.1974 was not brought to the knowledge of the Tehsildar and vide order dated 12.06.1975 the defendant No. 3 Trust had been dispossessed from the possession. At that point of time, the land was on lease to plaintiff Siddhanath hence; he signed the Panchnama in respect of the dispossession.

(iii) Being aggrieved by the order of Sub-Divisional Officer dated 19.09.1974, the Plaintiff filed an appeal on 31.12.1975 before the S.D.O. which was dismissed vide order dated 03.05.1977 as time barred. Thereafter, he filed revision before Additional Commissioner and then to Board of Revenue but both were dismissed.

(iv) Thereafter the Plaintiff filed Civil Suit No. 259-A/81 on 21.12.1981 against the Government seeking declaration of title on the basis of adverse possession and permanent injunction for protection of his possession. The p