Yashwant Rao Khogal and Ors vs Mst. Jahoorbi

S.P. Khare, J.

This is a second appeal u/s 100 C.P.C. The following substantial question of law was formulated while admitting this appeal by order dated 18/3/1987 :-

Whether Afzal Khan''s continuance of possession since November, 1960 extinguished plaintiff''s title despite pendency of earlier suits and the plaintiff''s title had extinguished in principles in Rajender Singh and Others Vs. Santa Singh and Others, ?

Respondent Jahoorbi and her husband Sher Khan instituted Civil Suit No. 39-A of 1970 in the Court of Second Civil Judge, Class-II, Balaghat against Afzal Khan for permanent injunction restraining him from interfering with their possession over Khasra No. 462 area 1,50 acres and Khasra No. 463/3 area 0.50 acre of village Bisoni, Tahsil and District Balaghat. In this Civil suit Jahoorbi claimed that her husband Sher Khan had executed a registered Meharnama dated 24/4/1965 by which he had settled these lands with her in lieu of her Mehar. Defendant Afzal Khan is step son of Jahoorbi. He claimed that Sher Khan had orally gifted one acre land out of two acres to him in the year 1960. It was held by the judgment dated 7/8/1972 in that civil suit that the claim of Jahoorbi was correct. The plea set up by Afzal Khan that one acre of land was gifted to him by Sher Khan was not accepted. It was held that Afzal Khan did not acquire any title to this land, In that suit the relief of injunction was claimed by the plaintiffs. The alternative relief of possession was not claimed. Though the title of Jahoorbi on these two acres of lands was upheld, her suit for injunction in respect of one acre was dismissed as Afzal Khan was in actual possession of that one acre of land on the date of the institution of that suit in the year 1970.

Jahoorbi filed Civil Suit No. 52-A of 1974 on 13/12/1972 against Afzal Khan for possession of 0.90 acre of land which was actually in his possession. That suit was decreed on 16/12/1974. The first appeal and the second appeal against that judgment failed. The claim of Afzal Khan that he had acquired title to the land by adverse possession was negatived. That is clear from the judgment dated 21/10/1981 of this Court in Second Appeal No. 605 of 1975. The objection of the defendants that the suit was barred under Order 2, Rule 2 C.P.C. was also rejected. It was held by this Court that the earlier suit for injunction could not debar the plaintiff to sue afresh for possession. The cause of action in the two suits was held not to be identical.

Afzal Khan had sold one acre of land which was the subject matter of litigation in the civil suits referred above by registered sale-deed dated 12/7/1974 to Yashwant Rao Khogal. That was done during the pendency of Civil Suit No. 52-A of 1974. Therefore, this sale was hit by the doctrine of lis pendens contained in Section 52 of the Transfer of Property Act. Jahoorbi was placed in possession of the land in dispute on 9.11.1975 in execution of the decree of this civil suit after the dismissal of the first appeal filed by Afzal Khan.

Jahoorbi again filed Civil Suit No. 113-A 1979 against Yashwant Rao Khogal and others for possession of the land on the ground that she was again dispossessed illegally on 3.7.1976. That suit has been decreed by the trial Court by the judgment dated 21.8.1984. The first appeal of the appellants was dismissed on 15.10.1986 and against that appellate judgment and decree they have come before this Court in second appeal.

At the time of hearing of this appeal the learned counsel for the appellants was unable to show how can he still contend that Afzal Khan had acquired title to the land in dispute by adverse possession. The question of adverse possession stands concluded by the judgment of this Court in Second Appeal No. 605 of 1975. It has been held therein that Afzal Khan did not acquire title to this land by adverse possession. Therefore, the vendee who purchased this land during pendency of the earlier suit has also not acquired any title. The continuity of possession of Afzal Khan was broken on 9.11.1975 when the land was placed in possession of Jahoorbi in pursuance of a warrant for delivery of possession issued by the Court in execution of the decree. Now there can be no question of taking up the plea of adverse possession of Afzal Khan or his transferee in the present case. The earlier judgment operates as res-judicata.

A reference has been made to the judgment of the Supreme Court in Rajendar Singh Vs. Santa Singh in the question of law which was formulated by the Bench which admitted this appeal. I have gone through this judgment and it has no application to the facts of the present case. No reliance has been placed on this judgment by the learned counsel for the appellants at the time of final hearing of this appeal. In that case the Supreme Court has held that the doctrine of lis-pendens contained in Section 52 of the Transfer of Property Act would not arrest the running of period of limitation during the pendency of that suit. That is not the case here. In the present case the plea of adverse possession set up by Afzal Khan has been rejected finally by this Court in the second appeal referred above and that judgment has become conclusive on this point. The question of law framed above is answered in the negative.

It is pointed out on behalf of the appellants that he had filed an application for amendment of the memo of appeal on 27.1.1987 and that was allowed by the order dated 12.3.1987. Thereafter the appeal was heard on the question of admission on 18.3.1987. By that order only one question of law referred above was framed. No other question of law was formulated by this Court at the time of the admission of the appeal. No other question of law arises in the present appeal.

This case illustrates that a poor lady who is widow has been fighting for her just cause from the year 1970 and inspite of her success in the three civil suits referred above including in the second appeal before this Court she has not been able to get possession of one acre of land from the persons who believe that "might is right". The stay order passed by this Court is vacated and the trial Court is directed to place Jahoorbi in possession of the land in dispute by issuing a warrant for delivery of possession immediately. That warrant will be executed if necessary with the police help within one month and the compliance of this order will be reported to this Court. The plaintiff had claimed mesne profit at the rate of Rs. 640/- per annum. That appears to have been negatived by the trial Court without any valid reason. It is true that Jahoorbi did not file any cross objection against the dismissal of her claim for mesne profit, but it is obvious that the appellants have retained possession of this land in dispute wrongfully from the year 1976. Therefore, it would be reasonable and in the interest of justice to award compensation to the respondent who was kept out of possession of the land in dispute by the appellants, though it was adjudicated in the earlier suit that she had full title to this land. This appeal remained pending for about 13 years and the appellants remained in possession of the land on the basis of the stay order passed by this Court. Therefore, while dismissing this appeal this Court is legally entitled to see that a person especially a widow who has been kept out of possession unlawfully is adequately compensated. That power has been conferred upon the appellate Court by Order 41, Rule 33 C.P.C.. The object of this rule is to do complete justice between the parties. This rule gives ample power to the appellate Court to pass such an order as is appropriate for the ends of justice. This view has been taken by the Supreme Court also in Koksingh Vs. Smt. Deokabai, and Giasi Ram and Others Vs. Ramjilal and Others, . Again in Chaya and Others Vs. Bapusaheb and Others, it has been observed that power under Order 41, Rule 33 C.P.C. should be exercised with care and caution, it is also true that in an appropriate case, the appellate Court should not hesitate to exercise the discretion conferred by the said rule. In Narayananio v. Sudarshan, and Mathewv. Eliswa (1988) 1 KLT 310 , it has been held that decree for mesne-profit can be granted in an appropriate case even if there is no appeal or cross objection by the plaintiff. In K. Muthuswami Gounder Vs. N. Palaniappa Gounder, it has again be clarified that the power though discretionary should not be declined to be-exercised merely on the ground that the party has not filed any appeal. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41, Rule 33 C.P.C. and each case must depend upon its own facts.

So far as the quantum of compensation is concerned, it can be taken judicial notice that there has been a tremendous rise in prices of agriculture produce since 1976. Therefore, the award of compensation at the rate of Rs. 640/- per annum from the date of suit that is 5.7.1976 would be quite reasonable. It is directed that the appellants shall jointly and severally pay compensation to the respondent at the rate of Rs. 640/- per annum from 5.7.1976. The appeal is dismissed.