Roop Singh (Dead) Through Lrs. v. Ram Singh (Dead) Through Lrs.

M.B Shah, J.— This appeal is directed against the judgment and decree dated 29-9-1988 passed by the High Court of Madhya Pradesh at Indore in Second Appeal No. 255 of 1977, whereby the High Court allowed the second appeal of the respondent-defendant and set aside the judgment and decree for possession of the suit land.

2. It is the case of the appellant-plaintiff Roop Singh (since deceased) that he owned 15.32 acres of agricultural land bearing Survey No. 106 in Village Shivana of Tehsil Bhikangao. As the land was in illegal possession of the respondent Ram Singh (original defendant — since deceased), a notice dated 7-6-1966 was issued by the appellant calling upon the respondent to restore the possession of the suit land. The respondent did not hand over the possession of the land. Hence the plaintiff filed Civil Suit No. 10-A of 1969 before the Civil Judge, Bhikangao (M.P) for possession of the suit land with mesne profit @ Rs 500 per year. The defendant denied the contention that he was a trespasser and submitted that 14 years prior to the date of institution of the suit he had purchased the suit land for a consideration of Rs 611 and had paid full sale consideration to the plaintiff and since then he was in possession of the suit land. He contended that his possession was protected under Section 53-A of the Transfer of Property Act. He also pleaded that he had acquired the title by adverse possession. In the alternative, he pleaded that he had made improvements in the suit land and if order for restoring the possession is passed, the plaintiff should be directed to pay the cost of improvements. By judgment and decree dated 30-7-1971, the Civil Judge passed a decree in favour of the plaintiff. But the Additional District Judge in Appeal No. 46-A of 1971 allowed the appeal and remanded the matter to the trial court for disposal after framing necessary issues. The trial court inter alia decided the following two issues:

“Whether the plaintiff had made a written contract for the sale of the disputed land in 1955 or near about it with the defendant or his deceased brother Manohar Singh and delivered the possession of the disputed land to the defendant after receiving the consideration of Rs 611 of the disputed land?

Whether the defendant had acquired the title of the disputed land by adverse possession?”

3. After appreciating the evidence, the Court arrived at the conclusion that the defendant had not made all the pleadings which are necessary for getting protection under Section 53-A of the Transfer of Property Act. The Court also held that even if pleadings are presumed, the defendant had failed to prove the said contention as the so-called sale deed was not produced on record and it was alleged that the said document was with the brother of the defendant who had expired because of snake-bite and the document was lost. Therefore, the Court held that the statement of the defendant was not sufficient to establish the so-called sale. For the adverse possession, the Court arrived at the conclusion that the defendant had failed to prove adverse possession because he had specifically pleaded that he got possession of the suit land as a result of contract with the plaintiff. Hence, the defendant's entry on the suit land was permissive and the permissive possession would become adverse only if hostile title was asserted and proved by overt acts. The trial court, therefore, decreed the suit of the plaintiff by judgment and decree dated 15-3-1976.

4. Civil Appeal No. 20-A of 1976 filed by the respondents was dismissed by the Additional District Judge, Bargon on 24-3-1977. The appellate court considered the contention of the defendant for the alleged sale of the suit land and arrived at the conclusion that the defendant had neither produced on record the so-called letter nor document executed in his favour by the plaintiff, nor had he taken it as a ground in his pleading that he had lost the said document, nor had he prayed for production of secondary evidence. The Court further appreciated the contention of the defendant with regard to the alleged sale by observing that even the so-called witnesses, in whose presence the talks for sale took place, namely, Gulab Singh and Dhyan Singh, were not examined by the defendant to prove that contract. As against this, it was found that the plaintiff had handed over the land to the defendant in the year 1957-58 for batai (half share) only for two years and the defendant had not restored the land. The Court arrived at the conclusion that this fact is borne out by Ex. P-1 khasra for samvat year 2014-15. The Court further considered that in the khasra for the samvat year 2015-16 in the remarks column there is no reference to any agreement of sale. The Court also referred to khatauni, Ex. P-1 produced by the plaintiff which mentioned that the disputed land stood in the name of the defendant not as an owner. The Court appreciated and accepted the evidence of the plaintiff that he had neither sold the land nor did he execute any document in favour of the defendant. After considering the evidence on record, the Court observed that from the deposition of the witnesses examined by the defendant it can be stated that he was in possession of the suit land since 1956-57, but there is no evidence about the sale in his favour and held that the plaintiff had given this land to the defendant on batai for two years i.e for samvat years 2014-15 and 2015-16 and thereafter the defendant had been continuously in unauthorised possession. But from this fact, it cannot be held that the defendant had acquired title by adverse possession.

5. Against the said judgment and decree, the defendant preferred Second Appeal No. 255 of 1977 before the High Court of Madhya Pradesh. The High Court allowed the said appeal and set aside the judgment and decree passed in favour of the plaintiff. That judgment and decree is challenged by the plaintiff by filing this appeal.

6. The learned counsel appearing on behalf of the appellant vehemently submitted that the judgment and decree passed by the High Court is, on the face of it, illegal and erroneous as the High Court had failed to raise and decide a substantial question of law. She submitted that the High Court had reappreciated the evidence considered by the appellate court and the trial court and arrived at a conclusion which is contrary to the evidence on record. As against this learned counsel for the respondent submitted that the High Court passed the judgment and decree after framing the substantial question of law and in any case the High Court rightly held that the defendant had perfected his title over the suit land by occupying the same for more than 12 years. He submitted that the High Court rightly observed that the settled legal position was that as soon as the possession of the premises is handed over pursuant to an agreement to sale, adverse possession commences from that date and, therefore, the defendant had perfected his title by remaining in possession of the suit land continuously for more than 12 years as an owner.

7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact-finding courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591) Hence, the High Court ought not to have interfered with the findings of fact recorded by both the courts below.

8. It also appears that the High Court had ignored the finding of fact to the effect that the defendant had failed to prove the so-called agreement to sale in his favour. He had not produced on record the said sale deed or a letter executed by the plaintiff in favour of the defendant or his brother. The appellate court had further observed that the defendant had not led the evidence of the witnesses in whose presence the said document was executed. In our view, there being no document on record, the alleged contents of the deed could not have been considered by referring to the oral say of the defendant.

9. Further, even with regard to appreciation of evidence the High Court materially erred in considering the evidence of Anoop Singh for holding that the defendant had been in possession for 15-16 years from the date of the suit and that possession being not permissive and adverse to the title of the plaintiff, would ripen into perfect title. This finding is quite contrary to the evidence of Anoop Singh and the finding given by both the courts below who after appreciating the evidence of witnesses have specifically arrived at the conclusion that the witnesses have nowhere stated that the defendant asserted his hostile title. From the deposition of the said witnesses and the revenue records, the courts arrived at the conclusion that since 1956-57 the defendant was in possession but that possession was as a bataidar. As the suit was filed on 4-2-1969, it cannot be said that the defendant had perfected his title by adverse possession. In the written statement, the defendant had only asserted that about 14 years ago the plaintiff gave this land by executing the sale agreement for Rs 611; the sale deed was written in the presence of two persons of the same village and hence since 1955 the defendant was in possession of the land as an owner/purchaser. Therefore, he has become owner of the suit property by adverse possession. Except this bare evidence, there is no other evidence on record to establish that the defendant got possession of the property by purchasing the same. As against this, the revenue record clearly establishes that the plaintiff was the owner of the property and that he had handed over the possession of the suit land to the defendant for cultivation as bataidar. It appears that the High Court materially erred in not referring to the evidence of the plaintiff who had specifically deposed that in the year 1956-57 he had given the suit land to the defendant for two years on batai. It is also to be stated that the pleas of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land. (Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639)

10. In the result, the impugned judgment and decree passed by the High Court in Second Appeal No. 255 of 1977 requires to be set aside and is hereby set aside. The appeal is allowed and the judgment and decree passed by the appellate court in Civil Appeal No. 20-A of 1976 is restored. The parties shall bear their respective costs.

11. Ordered accordingly.