Municipal Council Ambah & Anr vs Chhote Khan And Others

This first appeal has been filed by the defendants before the trial Court, namely Municipal Council Ambah, against the judgment and decree dated 25.9.2002 passed by the Court of 3rd Additional District Judge, Morena, in civil suit No.4-A/1982.

It is appellants' contention that the dispute is in regard to land measuring 10 Biswa contained in survey No.1808/3 situated at Tahsil Ambah Distt.

Morena, within the municipal limits of Municipal Council Ambah.

In the plaint, it was alleged that predecessors of Shamsher Khan/predecessors-in-title of respondents No.1 to 4 and respondent No.5 were in occupation of the suit land alongwith defendant No.3-Moti Khan as Marushi tenant prior to Samvat 2007 and after abolition of Zamindari they remained in occupation, therefore, after enforcement of M.P.L.R.C. they became Bhumiswami of the suit property. In 1982 plaintiffs decided to construct certain shops and when the plaintiffs obtained copy of revenue records, then they found that their names were illegally deleted from the revenue records, and therefore, they filed a suit for declaration of title and permanent injunction.

This suit has been decreed by the trial Court in favour of the plaintiffs, and therefore, defendants are in appeal claiming that suit property was acquired by the Municipal Council Ambah and they had paid compensation of Rs.500/- to Moti Khan who had given his consent on 2.6.1959. It is alleged that vide resolution dated 25.6.1959 it was decided to acquire the property and on 2.7.1959 compensation of land was paid to Moti Khan vide cheque No.021426 dated 2.7.1959 vide voucher Ex.D/8 and thereafter suit property stood vested in the appellants. In the written statement, present appellants had also taken a plea of adverse possession and submitted that since they are in possession for over 23 years within the knowledge of general public, therefore, possession of the defendants/Municipal Council Ambah be treated as adverse possession.

Learned trial Court has decreed the suit after framing as many as 13 issues and holding that plaintiffs are the Bhumiswami of the land in question but they are not having possession over the suit land. Similarly, it has held that defendants No.1 and 2 were unnecessarily trying to interfere in the land of title-ship of plaintiffs. It also held that pleading of the Municipal Council that forefathers of the plaintiff namely Moti Khan had accepted a sum of Rs.500/- and handed over the land in favour of the Municipal Council is not correct. Similarly, it held the suit to be maintainable and found it to have been valued properly. It rejected the plea of adverse possession and also negated the additional issue in regard to valuation of the suit land. It held that suit was filed within the territorial and pecuniary jurisdiction of the Court and it further held that possession of the Municipal Council in terms of Section 53-A of the Transfer of the Property Act was not preserved. It further held that Municipal Council had encroached upon the land of the plaintiffs and constructed shop and pump house. 6. The appellants assailed the finding recorded by the trial Court saying that finding recorded in regard to issue No.2 is contrary to issue No.1. It has been mentioned that once the trial Court has held that appellants are in occupation of the suit land, then there was no occasion to hold that title of the land is vested in the plaintiffs and trial Court should have decreed the suit on the basis of adverse possession. It is further submitted that the finding in regard to non-transfer of title from Moti Khan to Municipal Council is perverse inasmuch as as per the provisions contained in Section 49 of the Municipalities Act, 1954 a municipality may acquire and hold property both movable and immovable, whether within or without the limits of the municipality. When there is any hindrance to the permanent or temporary acquisition upon payment, of any land or building required for the purposes of this Act, the Government may after obtaining possession of the same for the Government under Land Acquisition Act, 1894, or other existing law, vest such land or building in the municipality on its paying the compensation awarded, and on its repaying to the Government all costs incurred by the Government on account of the acquisition.

Thus, three issues emerges for decision in this first appeal; firstly whether the findings recorded by the trial Court are contrary to material on record; secondly whether suit should have been decreed in favour of the defendants who are appellants before this Court on the plea of adverse possession and also on the ground that they had acquired the land by paying compensation of Rs.500/- to Moti Khan and thirdly in terms of the provisions contained in Section 49 of the Madhya Bharat Municipalities Act, 1954 whether such land could have been acquired by the State Government for the benefit of the municipality.

Now as far as plea of the appellants in regard to payment of compensation and land acquisition is concerned, it will not be out of place to mention that in their written statement itself Municipal Council has admitted in para 8 that municipality of Ambah had acquired such land for water works for which acquisition proceedings were initiated, but due to mutual discussion with Moti Khan Municipal Council had agreed to bequeath the land on payment of Rs.500/- to Moti Khan and paid such amount and obtained possession of such land, and therefore, land acquisition proceedings were not undertaken. This plea clearly demonstrates that as far as the provisions of so called Section 49 of the Municipalities Act, 1954 as has been referred to by the appellants are concerned, they could not have been invoked because they deal with land acquisition and in case there is any hindrance, then authority of the State Government may be invoked to acquire the land and hand it over to the municipality after following the provisions of the Land Acquisition Act, 1894 or other existing laws subject to recovering cost of such acquisition from the concerned municipality.

If the contention of the municipality as has been mentioned in para 8 of the written statement is taken into consideration, then it was a sale or a transaction of sale, and therefore, as per the provisions contained in Section 17 (1)(b) it should have been registered. Section 17(1)(b) provides as under :-

“17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a)---

(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) to (e)---—

It is an admitted position that such transaction was not registered, and therefore, the plea of payment of Rs.500/- as mutually agreed price is not made out. Ex.P/1 to Ex.P/6 demonstrate that plaintiffs and proforma respondents were holding the suit land in equal proportion as owner of such land.

It was contented before the trial Court that ancestors of the plaintiffs and all the proforma respondents had already sold this land in favour of the present appellants and adduced evidence of Rajiv Sharma (DW-5), Sahdev Singh Tomar (DW-6) and Jagdishchandra Sharma (DW-7) who have deposed that land was sold for a consideration of Rs.500/- in favour of the municipality vide voucher Ex.D/8 and Moti Khan was paid Rs.500/- as consideration. It is also true that this receipt was disputed and municipality had not produced the original record mentioning that it was burnt. There was no document as has been discussed above to show registration of the transaction inasmuch it was mandatory in terms of the provisions contained in the Registration Act, 1908. It has also come on record that the land was jointly held by Moti Khan and ancestors of the plaintiffs in equal proportion, therefore, under such circumstances, Moti Khan was not entitled to sell land in toto in favour of the present appellants. In fact, Moti Khan had filed a civil suit No.55-A/1983 which was registered as new No.139-A/2000 in which Moti Khan had sought relief of declaration of title and the trial Court recorded a finding that though the said suit was dismissed on 9.12.2000 but a finding was recorded in the said suit that the suit land was of the ownership of the plaintiffs and proforma respondents.

Learned trial Court has rightly appreciated the evidence that right in a immovable property cannot be given up orally and if there was oral agreement giving up of the rights, then a document should have been recorded in this regard, but no such document was filed and learned trial Court also appreciated the fact that no survey number, area etc. is mentioned on the so called voucher Ex.D/8 through which municipality claimed that they had purchased the property from Moti Khan. Under such facts and circumstances, municipality was required to show that from which date they have adverse possession on the suit land. In this regard, their contention is that initially a room was constructed, then in 1975 some shops were made and in 1982 some more shops were made. Thus, in all 20 shops were constructed but they have not shown that from whom they have taken the permission and approval to construct such shops. Under such facts and circumstances, the trial Court upheld the ownership and title of the plaintiffs but as the situation was prevailing on the site accepted the possession of the present appellants on the suit land. Thus, there is no contradiction in the findings recorded vis a vis issues No.1 and 2 inasmuch as issue No.1 is in regard to ownership of the suit land and issue No.2 is that defendants i.e. the present appellants were unnecessarily trying to interfere in the title of the plaintiffs. Since municipality has failed to substantiate its title over the suit land trial Court has rightly dismissed both the issues.

As far as issue No.3 is concerned, the onus was on the present appellants to have shown that plaintiffs had given up their possession and title on the suit land in the year 1959 itself. As has been discussed above in Ex.D/8 neither any details of Khasra number have been mentioned nor any area has been mentioned, therefore, it cannot be said that rights were given up in regard to the suit land as has been sought to be made out by the municipality. In fact, trial Court has rightly held that since the transaction was to the tune of Rs.500/- as has been admitted by the municipality, then it was mandatory for the municipality to have registered such transaction but since such transaction was never registered as per the provisions contained in the Registration Act, 1908, nor any land was acquired in terms of the provisions contained in the Land Acquisition Act, 1894, therefore, the appellants/municipality had not acquired title over the suit land and in absence of title over the suit land, the ownership remained vested in the plaintiffs.

As far as plea of res judicata is concerned, it is also not maintainable inasmuch as suit No.139-A/2000 was filed by Moti Khan and not by the plaintiffs and the title of the plaintiffs was not decided in the said suit, therefore, the principles of res judicata will not be applicable.

As far as Ex.D/5 is concerned, being agreed to acquisition is different from actual acquisition. Merely concurrence or the consent to permit acquisition does not mean that land was acquired. Land has to be acquired in terms of the statutory provisions contained in the Land Acquisition Act and since the appellants have failed to show that land was acquired in terms of any of the statutory provisions by any statutory authorities including the State Government, it cannot be said that title stood vested in the defendants. Since it is an admitted position, as far as appellants are concerned, that they had obtained possession of the land in the year 1959 from Moti Khan after paying him compensation of Rs.500/-, then on such plea being made by the appellants themselves, the plea of adverse possession gets automatically defeated. In fact, both the pleadings are contradictory to each other and are not acceptable in the eyes of law. This plea of adverse possession could also not be proved from the material on record and thus, trial Court has rightly decreed the suit and the impugned judgment does not call for any interference inasmuch as the municipality for its lapses of its own and its officers cannot be permitted to make capital, especially when it is an statutory body and it is bound by the rule of law and if such statutory body fails to comply with the rule of law, then for such failure it cannot blame the other party and claim that they have title in the suit property. Thus, the judgment and decree passed by the trial Court does not suffer from any infirmity, illegality and arbitrariness and is based on cogent appreciation of evidence on record and therefore the appeal fails and is dismissed.