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2025 Supreme(Online)(MP) 2549
HIGH COURT OF MADHYA PRADESH
G. S. AHLUWALIA, J
Habeeb Khan – Appellant
Versus
Kasav Khan (Deleted) Through Lrs Mustaq Khan – Respondent
SA 396/2012
U.K.Jain,A.K.Jain,Rajiv Jain,Prashant Sharma,Sarvesh Sahrma,Devendra Sharma
Adverse possession requires acknowledgment of the true owner's title; mere long possession does not suffice. Res judicata does not apply if a suit is withdrawn with liberty to refile.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - The appellant, a defendant, challenged the judgments of the lower courts affirming the plaintiff's title and possession over disputed land, which was claimed to belong to the plaintiff's father. The courts found the sale deed executed by the plaintiff's father valid and rejected the defendant's claims of adverse possession and res judicata. (Paras 1-23)
(B) Adverse Possession - The court reiterated that adverse possession requires acknowledgment of the true owner's title and that mere long possession does not equate to adverse possession. (Paras 13-15)
(C) Res Judicata - The court held that the principle of res judicata was not applicable as the earlier suit was withdrawn with liberty to file afresh. (Paras 9-10)
Facts of the case:
The plaintiff filed a suit for declaration of title and possession over land purchased in 1962, which the defendant claimed was inherited from their grandfather. The defendant's applications to introduce additional evidence were rejected.
Findings of Court:
The courts upheld the validity of the sale deed and found no merit in the defendant's claims.
Issues: The main issues included the validity of the sale deed, the applicability of res judicata, and the rejection of applications for additional evidence.
Ratio Decidendi: The court emphasized that adverse possession must be proven with acknowledgment of the true owner's title and that the earlier suit's withdrawal did not invoke res judicata.
Result: Appeal dismissed.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 06.08.2012 passed by District Judge, Vidisha (M.P.) in Civil Appeal No.15-A/2010 thereby affirming the judgment and decree dated 10.03.2010 passed by Civil Judge Class – I, Kurwai, District Vidisha (M.P.) in Civil Suit No.3-A/2008.
2. Appellant is the defendant who has lost his case from both the courts below.
3. Facts necessary for disposal of the present appeal, in short, are that the plaintiff/respondent filed a suit for declaration of title, possession as well as for mesne profits by pleading inter alia that Survey No.231 area 2.748 hectares situated in village Bakwara, Tahsil Kurwai, District Vidisha belonged to his father Gulab Khan. The plaintiff purchased the aforesaid property by registered sale deed dated 30.11.1962 for a consideration of Rs.1,500/-. Shambhu Khan and Laxman Singh were the attesting witnesses. However, appellant Habib Khan got his name mutated without any information to the plaintiff/respondent. The plaintiff came to know about this fact when his son went to get the credit card prepared on 29.11.2005. Although the son of plaintiff tried to verify that by which order the name was mutated but he could not get the copy. However, when plaintiff went to cultivate the land, then they were stopped by defendants and accordingly, suit was filed for declaration of title, possession and mesne profits. It was also mentioned by plaintiff that earlier the plaintiff had filed a suit for declaration of title against defendant No.1 which was registered as Civil Suit No.8-A/2006. Since there was a formal defect in the suit, therefore, the same was withdrawn with liberty to file afresh. Similarly, father of defendant No.1, namely, Chhote Khan had also filed a suit for partition on 20.07.1964 which was registered as Civil Suit No.31-A/64.The said suit was decreed by compromise decree dated 22.10.1964.
4. Defendant/appellant filed his written statement and claimed that the property in dispute was of their grandfather, namely, Moujuddin Khan. It was his case that father of plaintiff and the father of grandfather of defendant were the owner of 402 Bigha of land including the disputed land. After the death of Nazar Khan who was the father of grandfather of defendant, the land was inherited by Gulab Khan and Moujuddin Khan (grandfather of defendant). However, dishonestly, Gulab Khan got the disputed property mutated in his name. At that time, father of defendant, namely, Chhote Khan was minor and was not aware of the number and revenue record of the land and therefore taking advantage of the said fact, Gulab Khan got a sale deed executed in respect of three survey numbers which were not within the knowledge of Chhote Khan. After aforesaid fact came to the knowledge of Chhote Khan, Gulab Khan by putting pressure on his relatives got a civil suit instituted against him and later on compromised the matter and got a declaration that Chhote Khan is the owner of ½ of 348 Bigha of land. According to the defendant, Gulab Khan had no right to execute the sale deed and accordingly, it was prayed that since sale deed is null and void, therefore, suit be dismissed.
5. The Trial Court, after framing the issues and recorded evidence, decreed the suit. Being aggrieved by judgment and decree passed by the Trial Court, appellant preferred appeal. During pendency of appeal, appellant filed an application under Order VI Rule 17 as well as under Order XLI Rule 27 CPC for taking khasra entries on record. Both the applications were rejected by appellate court and after considering the evidence led by parties dismissed the appeal.
6. Challenging the judgment and decree passed by the Courts below, it is submitted by learned counsel for appellant that the courts below have failed to see that plaintiff had earlier filed a civil suit which was withdrawn by him and therefore, the suit in question is bad in law in the light of principle of res judicata
