BONDAR SINGH Vs. NIHAL SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 16th November, 1998 passed by the Indore Bench of the High Court of Madhya Pradesh. As a result of the decision of the High Court the suit filed by the plaintiffs /respondent was decreed. The plaintiffs had filed a suit for declaration that they had become owners of the lands in suit by adverse possession and for injunction to restrain the defendants from interfering with the plaintiffs possession of the suit lands. The trial Court had decreed the suit, however, the appeal filed by the defendants against the trial court judgment was allowed by the Additional District Judge, Dhar, M.P. and the suit was ordered to be dismissed. Further an appeal filed by the plaintiffs against the said judgment of the Additional district Judge was allowed by the High Court and the suit was finally decreed.

(2.) Briefly the facts are that the plaintiffs (respondents herein) claim title to the land in suit on the basis of the plea that they had become its owners by adverse possession. The land was owned by one Fakir Chand predecessor in interest of the appellants herein (defendants in the suit) Fakir chand sold the land to Tola Singh, predecessor in interest of the plaintiffs by an unstamped and unregistered sale deed dated 9-5-1931. The plaintiffs claim to have entered into possession of the land on the basis of the said sale deed and they claim to be continuously in possession since then. The defendants tried to dispossess the plaintiffs which led to the present suit being filed by them on 15-4-1972. In the written statement filed by the defendants they denied the sale of land by their father Fakir Chand to Tola Singh. They denied possession of the plaintiffs of the suit land. They also took the plea that the alleged sale deed was false, fictitious and without consideration. According to the defendants, their father was in possession of the lands till his death. After the death of their father, their mother had given possession of the land to Tola Singh for purpose of cultivation in order to earn some money for supporting her family. According to the defendants they had taken back possession of the land from Tola Singh in the year 1957-58. they also pleaded that after the death of Fakir Chand, the land had been mutated in their names in the revenue records to the knowledge of the plaintiffs. The plea of adverse possession was denied by stating that actually the defendants were in possession of the land and there was no question of adverse possession of the land by the plaintiffs qua the suit land.

(3.) The main question for consideration in the present suit is as to whether the plaintiffs were in hostile continuous possession of the suit lands by virtue of which they had perfected their title to the land by adverse possession. Both parties claim to be in possession of the suit land. While considering the above question, the Court will also have to look into the plea raised by the learned counsel for the appellants/defendants that the plaintiffs had come in possession of the suit land for a brief period after the death of Fakir Chand, father of the defendant as "Shikmi" that is sub-tenants. The plea of sub-tenancy was as such not raised in the written statement nor any issue was framed by the trial Court in this connection. No particulars of alleged sub-lease were given. Not even date of creation of alleged sub-lease was stated. The defendants have tried to build an argument based on plea of sub tenancy (shikmi) at appellate stage. In support of this plea they rely on certain entries in the revenue records. Since this plea pre-supposes possession of the plaintiffs, the defendants took the stand that they had taken back the possession of the land from the defendants.