SURTAN Vs. HUKUM

JUDGEMENT

(1.) THIS second appeal by defendant under Section 100 of CPC is directed against the judgment and decree dated 29th November, 2003 passed by 5th Additional District Judge, Bhind in Civil Appeal No. 16 -A/2002 confirming the judgment and decree dated 12/2/2001 passed by 1st Civil Judge, Class -I, Lahar,District Bhind in Civil Suit No. 186 -A/2000. Defendant's counter claim has been dismissed by the impugned judgment passed by the trial Court.

(2.) FACTS necessary for disposal of this appeal are to the effect that plaintiffs Hukum , Jagram and Balaram filed a suit for declaration and permanent injunction against defendants Mus. Sarmano, Jagatsingh, Surtan, Jairam, Haridas and State of M.P. in respect of suit land falling in khasra No. 822 ad -measuring 0.551 hectares situated at village Katha to the extent of 1/3 share thereof. Appellant/defendant Surtan, respondent Jairam and Haridas filed written statement denying the title of plaintiffs and filed the counter claim to the effect that the suit land is in fact of actual ownership and possession of Surtan, Jairam and their brother Lachiram and defendant Haridas. However, Prabhu s/o Pramanand manipulated revenue entries in his favour in respect of suit land behind the back of defendants/respondents Late Lachchhiram and Haridas, therefore, they had filed a suit as regard 1/3 of the suit land against Prabhu. During pendency of the aforesaid suit, Prabhu had unauthorizedly executed a sale deed in favour of Rajaram on 5/12/1980 in respect of suit land. Under such circumstances, it is submitted that neither Prabhu had any right, title or interest over the suit land nor Rajaram and consequently, the plaintiffs' successors of Rajaram have any title over the suit land and they are not in possession thereof. The defendants are in continuous possession of the suit land. Hence, counter claim has been filed seeking declaration that the alleged sale deed dated 5/12/1980 is null and void as against defendants No. 1 and 2 and also relief of permanent injunction was sought. Plaintiffs filed reply to the counter claim inter alia contending that defendants are not in possession of the suit land. It is submitted that sale deed dated 5/12/1980 was legally executed and they are in possession of the suit land and therefore, prayed that counter claim be dismissed.

(3.) ON appeal, the first appellate Court again re - appreciated the evidence on record. Before the first appellate Court an application under Order VI Rule 17 of CPC to add additional ground to seek a decree of title and possession contending that even otherwise defendants have acquired title by adverse possession on account of long continuous, peaceful and uninterrupted possession over the suit land and thereafter, Rajaram and its successors have no right to the suit property. The first appellate Court by detailed reasonings as contained in para 11 to 15 has rejected the aforesaid application. It has been held that earlier defendants had filed a suit against Prabhu and Rajaram vide Civil Suit No. 822/1980 on the premise that they have acquired title by adverse possession over the suit land and therefore, neither Prabhu nor Rajaram had any right or title to execute the sale deed in respect of suit land and it was prayed that the sale deed dated 5/12/1980 executed by Prabhu in favour of Rajaram was null and void. That suit was dismissed for want of prosecution and thereafter an application under Order IX Rule 9 CPC has been filed which was pending consideration. Under such circumstances, counter claim in the instant suit of the same nature cannot be allowed in the light of the provisions as contained in Order IX Rule 9 CPC.