Amra vs Samalia - 1991 Supreme(MP) 681

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellants : R.D. Jain and S.K. Jain.
For the Respondents: Swami Sharan and M.G. Khedkar.

Headnote:(1)Civil Procedure Code, 1908 – O. 6 R. 2 – no specific plea of adverse possession or perfection of title thereupon – suit cannot be decreed.
       (2) Possession – no title proved by either of the parties – possession itself is a good title – real owner cannot forcibly dispossess the possessor – he has to seek legal remedy.
        Short Note
       1. The suit property is land S. No. 269, area 4 bigha 4 bishwas situated at village Panihar, Tahsil Sabalgarh. Deochand, the rather or the defendant/respondent nos. 1 and 2 and grand – father of the defendant/respondent no. 3 is the recorded Bhumiswami of the land. The plaintiff is in possession.
       2. The plaintiff brought the suit on 15.9.1971 alleging that he had been in possession of the suit property for a very long time and had become Bhumiswami on the date of coming into force of M.P. L1nd Revenue Code, 1959 i.e. 2.10.1959. The defendants had threatened him with dispossession on 20.8.1972. Hence, the suit.
       3. The defendants in their written statement denied the case of the plaintiff and submitted that the plaintiff had forcibly taken possession of the land at about two years prior to the institution of the suit but had assured the defendants of restoring the possession back after reaping the harvest. The plaintiff did not do so.
       4. The trial Court held that the plaintiff had perfected his title on account of being in possession of the suit property for over twelve years. The lower appellate Court has reversed the decree holding that the averments in the plaint, also the evidence adduced, fell short of making out a case of adverse possession, mere possession though for fifteen years, would not vest the plaintiff with any title and that the suit was, therefore, liable to be dismissed.
       5. Having heard the learned counsel for parties, this Court is of the opinion that the appeal deserves to be partly allowed.
       6. The plaintiff was admittedly in possession of the suit property on the date of the institution of the suit. The evidence shows that the plaintiff has been in long possession of the suit property and has also sunk a well thereon though the exact period of possession cannot be determined with accuracy. The plaintiff did not plead any source of title and did not also specifically make averments as to perfection of title by adverse possession. The argument of the learned counsel for the appellant, that assuming such a case was not pleaded yet the plaintiff was entitled to a decree on that count because relief cannot be denied to a civil litigant merely for want of perfect pleadings if the parties had gone to trial with full knowledge of the real controversy between them, cannot be accepted. From the pleadings, issues framed and the evidence adduced, it cannot be spelled out for a moment that the issue as to adverse possession has been substantially tried and the parties were alive to such a case being in controversy. In the opinion of this Court, in the facts and circumstances of the case, it will amount to taking the defendants by surprise if the Court were to examine if the plaintiff could be granted relief on the basis or acquisition of title by adverse possession. Hence, the pica cannot be permitted, See: Laxman vs. Ganpat, 1983 RN 238 (Para 12).
       7. Still, it cannot be denied that the plaintiff has been in settled and peaceful possession of the suit property. The defendants even if real owners cannot, in the facts and circumstances of the case, be permitted to take the law in their own hands and dislodge the plaintiff from his possession over the suit property. The defendants have not chosen to have recourse to law and recover possession of the suit property from the plaintiff by establishing their right to do so. The present one is a case where neither the plaintiff has been able to prove his title to the suit land nor the defendants have been able to prove that they had a better title, in the sense, to be entitled to recover possession from the plaintiff. It has been held in Nair Service Society vs. K.C. Alexander, AIR 1968 SC 1165 (Para 15): –
       "When the facts disclose no title in either party, possession alone decides."
       8. In Krishna Ram Mahale vs. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131 their Lordships have held:
       "It is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law."
       9. Their Lordships have referred to their own earlier decision in Lallu Yashwant Singh vs. Rao Jagdish Singh, AIR 1968 SC 620.
       10. In the opinion of this Court, it is a fit case where the question of title should be left to be determined in an appropriate suit to be brought by the defendant/respondents seeking recovery of possession from the plaintiff, if they be so advised. Till then, the defendant/ respondents should be restrained from causing any interference with the possession and enjoyment of the suit property by the plaintiff/appellant.
       11. For the foregoing reasons, the appeal is partly allowed. Judgments and decrees of both the Courts below are set aside. The defendant/respondents arc permanently restrained from causing any interference with the peaceful possession and enjoyment of the plaintiff over the suit property unless and until dispossessed in due course of law. AIR 1968 SC 1165, AIR 1968 SC 620 and (1989) 4 SCC 131 followed. 1983 RN 238 relied on. Appeal partly allowed.