Abid Ali vs Mahila Hafijan

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal, by the plaintiff, is directed against the judgment and decree dated 20.05.2006 passed by the I Additional District Judge, Ashok Nagar (M.P.) in Civil Appeal No. 32A/2005 confirming the findings of the trial court with respect to dismissal of the suit for declaration of title as per adverse possession vide judgment and decree dated 30.06.2005 passed by Civil Judge Class I, Ashok Nagar in Civil Suit No. 258A/2000.

Plaintiffs filed a suit seeking declaration of title and permanent injunction, inter alia, contending that the land bearing Survey No. 1592, 1594, 1653, 1667, 1668 and 1669 total Survey No. 6 area 3.532 hectares is situated in village Shadhora, Tahsil and District Ashok Nagar. It is said that the plaintiffs have been recorded as Bhumiswamis and they are in possession. It is further said that the land in question belongs to Munsaf Ali, Shaukat Ali and Ehsaan Ali who are cousin of the father of plaintiffs. It is said that 25 years ago, the land received to him in partition. After the death of father of the plaintiffs, they became co-owners and holders of the land, however, on the basis of adverse possession declaration of title has been sought for.

Defendants by filing written statement has not disputed the relationship with the plaintiffs and admitted that the land in question is of the joint holding since plaintiffs and the defendants were the members of the same family. Plea regarding res judicata with respect to same suit property was also raised which was the subject matter of the earlier suit. It is also stated that there is a defect of non-joinder of the necessary parties, namely, Maharaj Ali, Munsaf Ali, Imrat Ali, Jehangir Ali and Babbu Ali. At last, it is said that the defendants are the shareholders to the extent of 2/3rd share in the suit property and such suit on the basis of adverse possession cannot be decreed.

Learned Trial Court has considered issue No. 1 which relates to declaration of title on the basis of adverse possession which was decided against the plaintiff holding that the plea of adverse possession in the light of a joint holding of a family in favour of the co-owner does not subsist. It is further held that there was a defect of non-joinder of the necessary parties as specified in para 18 of the judgment of the trial court. Appellate court while considering the appeal set aside the finding of para 18 but to dismiss the suit filed by the plaintiff, the finding of the trial court has been upheld. Being aggrieved by the same, this appeal has been preferred.

Shri Singhal, learned counsel appearing on behalf of the plaintiff/appellant has strenuously urged that the finding recorded by the learned trial court dismissing the suit of adverse possession on the basis of non-joinder of the necessary parties is unsustainable. It is his further contention that in a case of joint holding of a family after proving the partition, if the co-owners do not have possession on the land fallen into their share and the plaintiff is having possession thereon which is continuous possession, however, in such a case the suit seeking declaration of title on the basis of adverse possession ought to have been decreed. Courts below have committed error to dismiss the suit, therefore, substantial questions of law arise for determination in the present appeal which may be admitted for final hearing.

On the other hand, Shri Shrivastava, learned counsel representing respondent No. 2, has argued in support of the findings recorded by the trial court as well as by the appellate court and urged that in a suit seeking declaration of title on the basis of adverse possession plaintiff cannot be permitted to take inconsistent plea. In the said fact, looking to the findings as recorded by the two courts below, interference is not warranted, however, this appeal may be dismissed at admission stage.

After hearing learned counsel for the parties and on perusal of record, it is not in dispute that the plaintiffs and the defendants belong to the same family. As per the findings recorded by the learned courts below, partition took place but plaintiff remained in possession of the land fallen into the share of defendants. In the said facts, in a suit for declaration of title, pleading adverse possession against co-sharer, the findings of the two courts below which were concurrently recorded dismissing the suit as per inconsistent pleading, in the opinion of this court, do not warrant any interference. It can safely be observed here that there is a presumption of the possession of co-sharer, and in such case except the exclusive, continuous and peaceful possession of one co-owner to another, suit for adverse possession cannot be decreed.

In that view of the matter, in my considered opinion, courts below have not committed any error in dismissing the suit filed by the plaintiff/appellant warranting interference in this appeal.

Consequently, this appeal being devoid of substance is hereby dismissed at motion hearing stage.