Madan Prasad Sah @ Madan Prasad Gupta vs Kishore Narain Narone

Sanjay Kumar Dwivedi, J

Heard Mr. Lalit Yadav, learned counsel appearing for the petitioner and Mr. Jitesh Kumar, learned counsel appearing for the O.P. No. 6.

It appears that notice upon rest of the opposite parties have already been validly served, however, appearance on their behalf has not been made as yet. Earlier the matter was adjourned on 28.01.2025 with a view to provide an opportunity to the said opposite parties. Today also nobody has responded on behalf of the rest of the opposite parties, as such, this CMP is being heard in absence of rest of the opposite parties.

This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 18.03.2023, passed in M.C.A. No. 225 of 2022, arising out of Original Suit No. 27 of 2020, by the learned Civil Judge (Sr. Div.)-XI, Deoghar, whereby, the petition filed under Order-I, Rule-10(2) of the CPC by the petitioner, has been dismissed by the learned court.

Learned counsel appearing for the petitioner submit that Original Suit No. 27 of 2020 was instituted by the plaintiff/opposite party in the nature of specific performance of contract between the respondent No. 1 / plaintiff and respondent No. 2 -second party / defendant after getting admission of the plaint and the relief has been sought to decree the agreement for sale dated 07.02.2011 and 09.04.2011. He submits that further prayer has been made for a direction to execute the sale deed in favour of the plaintiff. He further submits that the petitioner has instituted a Declaratory Suit being Declaratory Suit No. 186 of 2010 in the court of learned Sub-Ordinate Court at Deoghar seeking relief for a decree for declaring that the plaintiff, being the owner is in possession of the suit property and have perfected his right, title and interest by way of adverse possession of more than statutory period of 12 years and confirmation of possession thereof and if during the pendency of the suit, the plaintiff dispossessed by the defendant or their men, then restoration of possession has also been prayed and further for permanent injunction restraining the defendants to go over the suit land or to claim any right, title or interest over the same. He submits that however, the said suit was dismissed by the judgment dated 21.12.2021 and the decree was signed on 12.01.2022, against that the petitioner has preferred Civil Appeal no. 04 of 2022, which has also been dismissed by the learned appellate court. In these backgrounds, he submits that in the Original Suit No. 27 of 2020, the said petition was filed on the ground that the suit property was purchased by the petitioner herein by way of sale deed in the name of the defendant and in view that the said petition was filed, however, the learned court has wrongly rejected the same.

Learned counsel appearing for the O.P. No. 6 has opposed the prayer and submits that the petitioner is not the necessary party in the said suit, which is meant for specific performance between the plaintiff and the O.P. No. 6.

In view of the above, it appears that the petitioner has instituted a suit, being Title Suit no. 186 of 2010 for declaration of his right, title and interest and confirmation of possession on the ground of adverse possession, which was dismissed by the judgment dated 21.12.2021 and the decree was signed on 12.01.2022, against that the petitioner has preferred Civil Appeal No. 04 of 2022, which has also been dismissed by the learned appellate court. The said suit was being contested on the ground of adverse possession and on the new ground, in the present suit, a petition under Order-I, Rule-10(2) of the CPC has been filed saying that by the sale deed, the suit property was purchased, however, the said suit property was purchased by another sale deed by O.P. no. 6 and O.P. No. 6 has entered into a further agreement to sell it to the plaintiff.

It is well settled that on the basis of contradictory statement, adverse possession cannot be the subject matter of claim. The claim of independent title and adverse possession simultaneously and from the same date amounts to taking contradictory pleases and a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. Thus, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Reference may be made to the case of Narasamma & Ors. Versus K. Krishnappa (Dead) through Legal Representatives, reported in (2020) 15 SCC 218.

In view of the above, the learned court has rightly passed the order and there is no illegality in the impugned order. As such, this petition is dismissed.