MALTIBAI Vs. SUBHASHCHANDRA

JUDGEMENT

(1.) THIS is defendant's revision against the order dated 2-7-2001 by which the plaintiff's appeal under Order 43 Rule 1 (r), CPC has been allowed and the defendant has been restrained by temporary injunction from interfering with the possession of the plaintiffs on the lands in dispute till the decision of the suit.

(2.) ARGUMENTS of both sides heard. Defendant Maltibai was admittedly the Bhumiswami of the lands in dispute Khasra No. 273 area 1. 008 Hectare and Khasra No. 275 area 0. 279 Hectare of Village Athner, Tehsil Bhaisdehi, District Betul. Her name is still recorded in the Khasras in column No. 3 as Bhumiswami. There was an agreement datetf 7-7-1983 between Maltibai and Meerabai by which the former agreed to sell these lands to the latter. The plaintiffs are heirs of Meerabai. Both sides have made allegations regarding the breach of this agreement by the other. The fact remains that Meerabai did not file any suit for specific performance of contract and therefore there is no registered sale-deed in her favour on the basis of which she could acquire title to these lands. Meerabai got her name recorded in the khasras in the remarks column as Maurusi Khashtkar. It is not her case that she was granted lease of the lands by defendant Maltibai and therefore the entry as occupancy tenant does not ensure to her benefit. Now in the present case she has come with the plea that she has acquired title to the lands by adverse possession. It is well settled that the possession of vendee under an agreement of sale is permissive and not adverse as held by the Supreme Court in Achal Reddy v. Ram Krishna, AIR 1990 SC 553 and Mohanlal v. Mirja, AIR 1996 SC 910. it has been held that a person who is in possession of the property under an agreement for sale is in permissible possession in anticipation of sale by the owner hence his possession is not adverse to the owner.

(3.) AS mentioned above it is an admitted fact that possession of defendant Maltibai is still recorded in column No. 3 as Bhumiswami. Therefore, the presumption would be that she is in actual possession of the lands. It has been held by a Division Bench of this Court in Churamani v. Ramadhar, 1991 MPLJ 311, that there is no presumption of correctness of the entries in the remarks column of the khasra. The entries made in remarks column of khasra cannot have any presumptive value as regards its correctness as the provisions of the M. P. Land Revenue Code, 1959 do not require the Patwari to make such entry in remarks column. Therefore, in the present case the possession of Meerabai cannot be presumed on the basis of the entry of her name in the remarks column in some years. She was never the occupancy tenant of these lands and therefore it is surprising how her name was recorded as Maurusi Khashtkar. It is a disputed fact whether actual possession of the lands was delivered to Meerabai at the time of agreement for sale. The alleged possession of Meerabai was neither settled nor lawful.