IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 19^th OF FEBRUARY, 2024 SECOND APPEAL No. 648 of 2003 BETWEEN:-

DAULATSINGH S/O BIHARILAL, AGED ABOUT 55 YEARS, R/O – VILLAGE DHANKHEDI, TEHSIL NARSINGHGARH, DISTRICT RAJGARH (MADHYA PRADESH)

.....APPELLANT (BY SHRI R.C. CHHAJED - ADVOCATE)

AND BHAGWANSINGH S/O NAWAL SINGH, AGED ABOUT 55 YEARS, R/O - VILLAGE DHANKHEDI, 1.

TEHSIL NARSINGHGARH, DISTRICT RAJGARH (MADHYA PRADESH)

LAKHAN SINGH S/O NAWAL SINGH, AGED ABOUT 50 YEARS, R/O - VILLAGE DHANKHEDI, 2.

TEHSIL NARSINGHGARH, DISTRICT RAJGARH (MADHYA PRADESH)

GODAWARIBAI WD/O NAWAL SINGH, AGED ABOUT 85 YEARS, R/O - VILLAGE DHANKHEDI, 3.

TEHSIL NARSINGHGARH, DISTRICT RAJGARH (MADHYA PRADESH)

THE STATE OF MADHYA PRADESH THROUGH

4.

COLLECTOR, RAJGARH (MADHYA PRADESH)

...RESPONDENTS (SHRI AMIT RAWAL – GOVERNMENT ADVOCATE FOR RESPONDENT NO.4/STATE)

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This appeal coming on for hearing this day, the court passed the following:

JUDGMENT

1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (in short “CPC”) has been preferred against the impugned judgment and decree dated 22.4.2003 passed by the Addl. District Judge, Narsinghgarh, District Rajgarh (Biaora) in First Appeal No.31A/99, while allowing the appeal but refusing to grant the decree of declaration in terms of compromise petition.

2. The appellant/plaintiff filed a suit for declaration of title and permanent injunction against the defendants on the ground that the defendants have agreed to sell the agricultural land bearing Survey No.391/1 Area 2.428 hectare on 9.6.79 situated at village Dhankhedi in respect of the land admeasuring 9 Bigah 10 Biswas. The consideration of Rs.10,450/- was paid to them and possession of the aforesaid land was delivered on the date of agreement, but thereafter defendants did not execute the registered sale deed as per the agreement. Plaintiff is in uninterrupted possession of the suit land since 1979 within the knowledge of the defendants and accordingly acquired title by adverse possession. The said suit was contested by the defendants by stating that the plaintiff has forcefully obtained possession of the suit land. Defendants have also filed a suit No.78-A/84, however the same was dismissed vide judgment dated 16.1.1986.

3. The defendants filed the written statement and counter-claim. The counter claim was resisted by the plaintiff. The trial court after framing the issues and recording evidence and after hearing both the parties, dismissed the suit filed by the appellant and decreed the counter-claim filed by the defendants. Then appellant preferred first appeal. During the pendency of the appeal, defendants filed a compromise application before the first appellate court by stating that the matter has been amicably settled between both the parties. But the first appellate court passed the impugned order and held that the appellant is not in continuous possession of the suit land for the period of last 12 years and he is not acquiring any title by adverse possession. Defendants can execute registered sale deed in favour of the plaintiff. The appellate court has granted only limited decree of permanent injunction in favour of the plaintiff that the defendants shall not interfere in the possession of the plaintiff’s land bearing Survey No.391/1 situated on the western side admeasuring 1.138 hectare and plaintiff shall deliver the possession of the remaining land to the defendants. Being aggrieved by the aforesaid judgment and decree, this second appeal has been preferred by the appellant.

4. This second appeal has been admitted on the following substantial question of law:-

“Whether, the learned appellate court erred in law in partly allowing and partly rejecting the application for compromise filed under Order 23 Rule 3 of the CPC.”

5. From perusal of the record, it appears that the compromise application filed before th