Surtan vs Hukum and Others

Rohit Arya, J.—This second appeal by defendant u/s 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.

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.

The trial Court based upon the aforesaid pleadings framed the issues and allowed the parties to lead evidence and upon critical evaluation of the evidence on record, dismissed the counter claim.

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.

Accordantly, the application under Order VI and 17 was dismissed by the first appellate Court holding that claim of perfection of title by adverse possession cannot be looked into in the counter claim as same is barred in view of provisions of Order IX Rule 9 of CPC and further that proposed amendment will change the nature of the counter claim and consequently also dismissed the counter claim.

Having perused the impugned judgments and record of Courts below, in the opinion of this Court, both the Courts below have not committed any error of law in dismissing the counter claim on concurrent findings of fact which are in fact and in effect in the realm of facts and do not warrant any interference u/s 100 of CPC by this Court. No question of law, much less substantial question of law arises in this appeal. The appeal sans merits, is hereby dismissed.