Yashwant and Others vs Gyan Singh and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment and decree dated 20/07/2011 passed by I ADJ, Sendwa, District-Barwani in civil appeal No. 30-A/2006 whereby the judgment and decree dated 31/07/2006 passed by Civil Judge, Class-I, Sendhwa in civil suit No. 14-A/2003 whereby suit filed by the appellants was dismissed was maintained, present appeal has been filed.

Short facts of the case are that appellants filed a suit for declaration and permanent injunction alleging that appellants are in occupation of land bearing various survey numbers measuring 54.63 acres situated at Village-Dhawli, Tehsil-Sendhwa, District-Barwani. It was alleged that appellants are the legal heirs of Thawaria. It was alleged that suit property is ancestral property of appellants as Thawaria predecessor-in-title of appellants got the same from his ancestral. It was alleged that Thawaria was habitual drinker, therefore, respondent No. 1 got the sale-deed executed of the suit property from Thawaria vide sale-deed dated 15/01/1968 which was registered on 16/01/1968 without any consideration. It was alleged that after the death of Thawaria appellants are in occupation of land as Bhumiswami. Further case of the appellants was that knowing it well respondent No. 1 having no right, interest and title over the suit property, respondent No. 1 has sold the part of suit property to other respondents. It was alleged that since the appellants are in occupation of land peacefully, continuously within the knowledge of respondent No. 1, therefore, appellants are also owner of the suit property on the basis of hostile title. It was prayed that suit filed by the appellants be decreed holding that appellants are Bhumiswami and respondents be restrained not to interfere into the possession of appellants. The suit was contested by the respondents wherein all the plaint allegations were denied. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court dismissed the suit filed by the appellants against which an appeal was filed which was also dismissed, hence this appeal.

Learned counsel for the appellants argued at length and submit that the impugned judgment and decree passed by the learned Courts below are illegal, incorrect and deserves to be set-aside. It is submitted that in facts and circumstances of the case, there was no justification on the part of learned Courts below to dismiss the suit. It is submitted that learned Courts below committed error in not considering the fact that on the basis of adverse possession also appellants are entitled for the decree as prayed. Learned counsel for the appellants submit that vide sale-deed dated 15/01/1968 no rights has been accrued to respondent No. 1. It is submitted that even if it is assumed that rights has accrued to the respondent No. 1, then too, since the appellants are in occupation of suit land without any obstruction peacefully, continuously within the knowledge of respondent No. 1 and his sons, therefore, the appellants were entitled for a decree on the basis of hostile title. It is submitted that in absence of specific denial in the written statement there was no justification on the part of learned Courts below in not passing the decree in favour of appellants. Reliance is placed on a decision in the matter of Ram Pukar Singh Vs. Bhimsen and Another, wherein it is held that pleading of fact in plaint not denied specifically, does not tentamount to denial or even an implied denial. Reliance is also placed on a decision in the matter of Bajriyabai Vs. Asharam 2000 RN 270 wherein the sale-deed was of Rs. 50/- and the sale of more than 6 acres of land, this Court held that the document itself creates a doubt. Reliance is also placed on a decision in the matter of Rajaram Vs. Mahila Batto Devi 1999 RN 208, Baloo Vs. Baboo 1984 RN 320, Sonmati Vs. Sharadraui 1990 MPACJ 545. On the strength of aforesaid position of law, learned counsel for the appellants submit that appeal filed by the appellants be allowed and the impugned judgment and decree passed by the learned Courts below be set-aside and the decree be passed in favour of the appellants.

From perusal of record, it appears that suit was filed on 12/05/2003 while sale-deed under challenge was executed on 15/01/1968. Learned Courts below has appreciated the fact that at the time of execution of sale-deed appellants were not born. The findings recorded by the learned Courts below are based on due appreciation of evidence on record which requires no interference. Keeping in view the fact that finding of facts which are concurrent in nature, the appeal filed by the appellants has no merits and the same stands dismissed.