KESAR BAIversusGENDA LAL & ANR.

564                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 564               [2022] 13 S.C.R.


A                                 KESAR BAI
                                        v.
                             GENDA LAL & ANR.
                         (Civil Appeal No. 7129 of 2022)
B                             OCTOBER 14, 2022
               [M. R. SHAH AND KRISHNA MURARI JJ.]
             Suit – Suit for declaration of ownership and permanent
      injunction – On the basis of registered sale deed and also on basis
      of adverse possession – Trial Court dismissed the suit – The First
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      Appellate held that the plaintiffs-respondent did not get any right
      on basis of the sale deed – However, the First Appellate Court
      decreed the suit for title on basis of adverse possession and
      restrained the defendant-appellant from interfering with possession
      of the plaintiffs-respondent – Second appeal before High Court
D     which framed substantial question of law on adverse possession
      and decided the same in favour of appellant, however, thereafter
      did not interfere with the judgment passed by the First Appellate
      Court – Held: All the Courts below negated the claim of original
      plaintiffs of ownership on basis of registered Sale Deed – Therefore,
      the only claim on behalf of plaintiffs was the plea of adverse
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      possession – So far as plea of adverse possession was concerned,
      the High Court had specifically framed a substantial question of
      law and as such held the same in favour of appellant-defendant –
      High Court specifically observed and held that the plea of ownership
      based on sale deed and plea of adverse possession, both, were
F     contrary to each other and the plaintiffs could not be permitted to
      take both the pleas at the same time – Therefore, even as per the
      High Court, the claim of plaintiffs on basis of the adverse possession
      was not tenable – In that view of the matter and once the substantial
      question of law on adverse possession was held in favour of
      appellant- defendant and the title/ownership claimed on basis of
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      Sale Deed was negated by all the Courts below, thereafter the
      possession/alleged possession of plaintiffs could not have been
      protected by passing a decree of permanent injunction in favour of
      the plaintiffs – Under the circumstances, the High Court materially
      erred in confirming the judgment passed by the First Appellate
H     Court.
                                       564
                KESAR BAI v. GENDA LAL & ANR.                                 565


      Allowing the appeal, the Court                                          A
      HELD: The High Court has specifically observed and held
that the plea of ownership based on sale deed and plea of adverse
possession, both, are contrary to each other and the plaintiffs
cannot be permitted to take both the pleas at the same time.
Therefore, even as per the High Court, the claim of the plaintiffs            B
on the basis of the adverse possession was not tenable. In that
view of the matter and once the substantial question of law on
adverse possession was held in favour of the appellant – original
defendant No.1 and the title/ownership claimed on the basis of
the Sale Deed dated 31.08.1967 (Ex.P.1) was negated by all the
Courts below, thereafter the possession/alleged possession of                 C
the plaintiffs could not have been protected by passing a decree
of permanent injunction in favour of the plaintiffs. Under the
circumstances, the High Court has materially erred in dismissing
the appeal and confirming the judgment and order passed by the
First Appellate Court. [Para 5][567-H; 568-A-C]                               D
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7129
of 2022.
      From the Judgment and Orders dated 02.03.2022 of the High
Court of Madhya Pradesh at Jabalpur in Second Appeal No. 8 of 1999.
                                                                              E
      Arjun Garg, Shobhit Jain, Aakash Nandolia, Ms. Sagun Srivastava,
Advs. for the Appellant.
    Ms. Swarupama Chaturvedi, AAG, Sunny Choudhary, Manoj
Kumar, Advs. for the Respondents.
      The Judgment of the Court was delivered by                              F
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Madhya Pradesh Principal Seat
at Jabalpur in Second Appeal No. 8 of 1999, the original defendant has
preferred the present appeal.                                                 G

      2. The facts leading to the present appeal in nutshell are as under:-
      2.1 That the respondent No.1 herein – original plaintiff filed a suit
seeking declaration of ownership and permanent injunction against the
defendant with regard to the suit property. The original plaintiffs claimed   H
566             SUPREME COURT REPORTS                            [2022] 13 S.C.R.


A     the title/ownership on the basis of the registered Sale Deed executed on
      31.08.1967 in favour of their father and husband Dariyab Singh. The
      plaintiffs also claimed the title on the basis of the adverse possession.
      The learned Trial Court dismissed the suit.
             2.2 The original plaintiffs preferred the appeal before the First
B     Appellate Court. The learned First Appellate Court though held that the
      plaintiffs shall not get any right on the basis of the Sale Deed dated
      31.08.1967 (Ex.P.1), decreed the suit for permanent injunction observing
      that the plaintiffs are in possession of the suit land. The First Appellate
      Court also held that therefore, the plaintiffs have perfected their title by
      way of adverse possession. The First Appellate Court decreed the suit
C     for title on adverse possession and issued the decree of permanent
      injunction restraining the defendant No.1 – appellant herein from
      interfering with the possession of the plaintiffs. The appellant herein –
      original defendant No.1 filed the second appeal before the High Court.
      The High Court framed the following substantial question of law:-
D            “Whether the First Appellate Court has erred in holding that the
             plaintiff has perfected his title on the disputed land by adverse
             possession?”
             2.3 Though the High Court answered the aforesaid substantial
      question of law in favour of the appellant, however, thereafter did not
E     interfere with the judgment and order passed by the First Appellate Court
      by observing that the First Appellate Court has specifically given the
      finding that the plaintiffs are in possession of the suit land since after
      execution of the Sale Deed dated 31.08.1967. Consequently, the High
      Court has dismissed the said second appeal. The impugned judgment
F     and order passed by the High Court dismissing the second appeal is the
      subject matter of present appeal.
             3. Learned counsel appearing on behalf of the appellant – original
      defendant No.1 has vehemently submitted that as such the plaintiffs
      filed the suit for declaration claiming ownership/title on the basis of the
G     registered Sale Deed dated 31.08.1967 (Ex.P.1.) and also claimed the
      ownership by adverse possession. It is submitted that all the Courts below
      had negated the claim of the original plaintiffs on the basis of the registered
      sale deed. It is submitted that thereafter the only question on behalf of
      the plaintiffs was the claim on the basis of the adverse possession. It is
      submitted that in the impugned judgment and order, the High Court has
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                 KESAR BAI v. GENDA LAL & ANR.                                     567
                        [M. R. SHAH, J.]

though held the substantial question of law on adverse possession in               A
favour of the appellant by observing that the plea of ownership based on
sale deed and plea of adverse possession, both, are contrary to each
other and plaintiffs cannot be permitted to take the same plea at the
same time, thereafter the High Court has dismissed the appeal and
confirmed the judgment and order passed by the First Appellate Court
                                                                                   B
decreeing the suit for title and also passed the decree for permanent
injunction.
       3.1 It is vehemently submitted by the counsel on behalf of the
appellant that once the original plaintiffs failed to get the decree for title/
declaration on the basis of the Sale Deed executed on 31.08.1967 (Ex.P.1)
and the substantial question of law with respect to the adverse possession         C
was held in favour of the appellant by the High Court, thereafter the
original plaintiffs shall not be entitled to the decree of permanent injunction.
       3.2 It is further submitted that the High Court has failed to
appreciate that once the plaintiffs are not found to be the owner, they
cannot claim their title by way of adverse possession. Their possession            D
over the land in question can only be in the nature of an encroacher. It is
submitted that therefore both, the First Appellate Court as well as the
High Court have seriously erred in granting the permanent injunction in
favour of the plaintiffs and against the defendants.
       4. Ms. Swarupama Chaturvedi, learned AAG appearing on behalf                E
of the respondent No.2 – State has submitted that she is appearing for a
proforma respondent and therefore, has nothing to add.
        5. Having gone through the impugned judgment and order passed
by the High Court as well as the First Appellate Court and even that of
the learned Trial Court, it appears that the original plaintiffs prayed for a      F
declaration and claimed the title/ownership on the basis of the Sale Deed
dated 31.08.1967 (Ex.P.1). Simultaneously, the plaintiffs also claimed
the title by adverse possession. All the Courts below have negated the
claim of the original plaintiffs of ownership on the basis of the registered
Sale Deed dated 31.08.1967 (Ex.P.1.) Therefore, the only claim on behalf           G
of the plaintiffs was the plea of adverse possession. So far as the plea of
adverse possession is concerned, the High Court has specifically framed
a substantial question of law (reproduced hereinabove) and as such has
held the same in favour of the appellant – original defendant No. 1. The
High Court has specifically observed and held that the plea of ownership
                                                                                   H
568              SUPREME COURT REPORTS                      [2022] 13 S.C.R.


A     based on sale deed and plea of adverse possession, both, are contrary to
      each other and the plaintiffs cannot be permitted to take both the pleas
      at the same time. Therefore, even as per the High Court, the claim of
      the plaintiffs on the basis of the adverse possession was not tenable. In
      that view of the matter and once the substantial question of law on
      adverse possession was held in favour of the appellant – original
B
      defendant No.1 and the title/ownership claimed on the basis of the Sale
      Deed dated 31.08.1967 (Ex.P.1) was negated by all the Courts below,
      thereafter the possession/alleged possession of the plaintiffs could not
      have been protected by passing a decree of permanent injunction in
      favour of the plaintiffs. Under the circumstances, the High Court has
C     materially erred in dismissing the appeal and confirming the judgment
      and order passed by the First Appellate Court.
            6. In view of the above and for the reasons stated above, present
      appeal succeeds. The impugned judgment and order passed by the High
      Court passed in Second Appeal No. 8 of 1999 and the judgment and
D     order passed by the First Appellate Court are hereby quashed and set
      aside and the judgment and decree passed by the learned Trial Court
      dismissing the suit is hereby restored.
            Present appeal is accordingly allowed. However, in the facts and
      circumstances of the case, there shall be no order as to costs.
E
      Bibhuti Bhushan Bose                                       Appeal allowed.
      (Assisted by : Preetam Bharti, LCRA)




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