NAGU Vs. BHANWARSINGH

JUDGEMENT

(1.) This is a second appeal against the judgement and decree dated 9-12-1974, passed by the Second Additional District Judge, Ujjain in Civil Regular Appeal No. 4 A of 1973, preferred against the judgement and decree dated 8-1-1973, passed by the Civil Judge Class II, Mahidpur in Civil Original Suit No. 18-A of 1968.

(2.) The facts leading to this appeal in short are that the original plaintiff Bhaggaji had filed a suit in the Court of the Civil Judge Class-II, Mahidpur against Bapusingh (now deceased) for declaration of his title on the ground that the plaintiff Bhaggaji had purchased agricultural land, survey No. 34 in village Dhulet from the defendant Bapusingh on 3-2-1953. The document was executed about the sale and Bhaggaji was inducted into possession of the suit land. This suit land is also called "Anarsingh-Wala Seda". Since that date, the plaintiff is in continuous possession of the suit land. On 8-8-1964, the defendant Bapusingh along with his son tried to dispossess the plaintiff forcibly from the suit land. Therefore, on 10-8-1964, he filed a Civil Suit No. 32-A of 1964 in the Court of the Civil Judge Class II, Mahidpur, whereupon a judgement and decree was passed in favour of the plaintiff against the defendant Bapusingh and his son restraining them from interfering with the possession of the plaintiff over the suit land. A relief of declaration was sought on the ground that the plaintiff being in possession of the land for a period of over 12 years as an owner, he has perfected his title by adverse possession and, therefore, he be declared the owner of the suit land. A prayer in the alternative was made that in case the plaintiff may not be declared an owner, then a decree for specific performance of the contract be passed against the defendant. The suit was resisted on the ground that the defendant was never inducted in the possession of the suit land in lieu of a contract to sell the land. Even if such an agreement may be held to exist still the plaintiff cannot get a decree for specific performance of the contract in view of the provisions of S.70 of the Madhya Bharat Land Revenue Code. The trial Court after trial decreed the suit of the plaintiff against the defendant holding that the plaintiff has become the owner of the suit land by prescription. Aggrieved by the judgement of the trial Court, the defendant filed an appeal before the lower appellate Court which was registered as Civil Regular Appeal No. 4-A of 1973. During the pendency of the appeal, the plaintiff and defendant both expired and their legal representatives were brought on record.

(3.) The learned lower appellate Court agreed with the findings of the learned lower Court about the possession of the plaintiff on the suit land. However, it held that the possession was not continuously peaceful because on 8-8-1964 when the defendant tried to forcibly oust the plaintiff from the suit land he had denied his title on the suit land. Thereafter the plaintiff filed a suit for permanent injunction against the defendant pertaining to the suit land, whereupon the Civil Court passed a decree of permanent injunction against the defendant and his son in Civil Suit No. 32-A of 1964. Therefore, since 8-8-1964 the plaintiff continued in possession of the suit land on the basis of the decree of the Civil Court and not peacefully within his rights. Therefore, the possession of the plaintiff on the suit land could not be held to be continuous and peaceful for a period of over 12 years. Consequently the judgement and decree passed by the trial Court was reversed and the suit of the plaintiff was dismissed. Hence this second appeal.