JUDGMENT
S.K. Gangele, J.
1. Plaintiff-appellant has filed appeal against the judgment and decree dated 5-8-1994 passed by the Additional Judge to the Court of District Judge, Narsinghgarh, in Civil Appeal No. 38-A/93 affirming the judgment and decree dated 30-3-1993 passed by the Civil Judge Class I, Narsinghgarh, in Civil Suit No. 10- A/78.
2. This appeal was admitted vide order dated 24-7-1996 on the following substantial questions of law:
(1) Whether the two Courts below erred in law in holding that the appellant-plaintiff has not perfected his title to the suit land by adverse possession even when it was admitted by the defendant that the plaintiff has been in unlawful and continuous possession for more than 12 years preceding the filing of the suit ?
(2) Whether under the facts and circumstances of the case, the defendant’s counter claim for possession could not be decreed being barred by law of limitation and no advantage of Section 14 of the Limitation Act could be availed to the defendant ?
(3) Whether the Lower Court should have held that Village Barasia was a Jagir village and that on the resumption of the Jagir, whatever, rights, title and interest the respondent’s deceased husband hand in the lands in question, stood extinguished from 4-12-1952. On the resumption of Jagirs under the M.B. Abolition of Jagir Act, in the absence of any plea raised by the respondent that her husband acquired any right on 4-12-1952 under any provisions of the said Act ?
3. The plaintiff filed a suit for declaration of title and permanent injunction pleading certain facts. Subsequently the plaint was amended vide order dated 11-7-1985. By the aforesaid amendment the plaintiff has taken the plea of adverse possession. It was pleaded by the plaintiff that he was put in possession over the suit land in the year of 1964 and since then he has been in possession over the suit land, hence he perfected his title by adverse possession. Earlier he pleaded that he filed an application before the Tehsildar on 24-7-1964 under Sections 190 and 110 of the M.P. Land Revenue Code for grant of Bhumiswami right on the basis of Shikmi. The Tehsildar dismissed his application thereafter he filed an appeal before the Sub- Divisional Officer and then to the Additional Commissioner and the Board of Revenue. All the authorities have dismissed the claim of the appellant then he filed the suit.
4. The defendant denied the title of the plaintiff and pleaded that she was the owner of the property. The Trial Court dismissed the suit of the plaintiff-appellant. Thereafter, he filed an appeal against the aforesaid order of the Trial Court. The Appellate Court remanded case to the Trial Court vide judgment dated 22-2-1993 passed in Civil Appeal No. 2-A of 1991. Thereafter, the Trial Court recorded the evidence and submitted the findings to the Appellate Court. The Appellate Court dismissed the appeal of the appellant.
5. The claim of the plaintiff is with regard to declaration and permanent injunction of agricultural land area 16.339 hectares situated at Village Khersiya (hereafter called as suit land). Main contention of the appellant is with regard to the adverse possession. It has been pleaded by the plaintiff that he was put in possession over the land in the year of 1964 and since then he has been in continuous possession.
6. Both the Courts have negativated the contention of the appellants-plaintiffs by holding that possession of the appellant-plaintiff cannot be said to be an adverse possession. It is an admitted fact that the appellant-plaintiff filed an application before the Tehsildar under Section 190 of the M.P. Land Revenue Code on 24-7-1964. Copy of the aforesaid application has been exhibited as Ex. P-10. In the aforesaid application the plaintiff himself admitted that the land was recorded in the name of the defendant and it was given by the defendant to him as Shikmi. It is clear from the application that there was no pleadings of the plaintiff of adverse possession.
7. The defendant in her reply stated the fact that Gopilal, who was Shikmi of the defendant No. 1 inducted the plaintiff as sub-tenant and he put him in possession over the suit land. The Tehsildar rejected the claim of the plaintiff and thereafter he ultimately tried up to the Board of Revenue. The Board of Revenue also negativated the claim of the plaintiff-appellant. Thereafter, he filed the present suit. In the present suit also he had not taken any pleadings initially with regard to adverse possession. Subsequently, by way of amendment he had taken the plea of adverse possession. The aforesaid amendment was allowed by the Court.
8. Learned Counsel for the appellant has submitted that because the Court has allowed the plea of adverse possession of the plaintiff, hence he cannot be held to be a Shikmi. Learned Counsel further submitted that the defendant No. 1 in her own evidence admitted the claim that the plaintiff was in possession over the suit land since 1964, hence both the Court have committed an error of law in dismissing the suit of the plaintiff.
9. From the facts stated above, it is clear that the plaintiff himself pleaded before the Tehsildar in an application filed by him for grant of Bhumiswami right, copy of which has been filed as Ex. P-10 that he had been given the suit land as Shikmi by the defendant and this was his plea constant up to the Board of Revenue where he lost. Thereafter, he filed the present suit on 24-1-1978 and in the present suit also initially, he had not taken the plea of adverse possession and subsequently by way of amendment he had taken the plea of adverse possession.
10. Hon’ble the Supreme Court in B.R. Rajeshwari v. T.C. Sarvanabava reported in 2004(2) MPLJ 392, held as under with regarding to plea of adverse possession:
The plea of adverse possession has not been held not substantiated and rightly so. The plea is too vague. Earlier the defendant claiming himself to be an adopted son of one of the predecessor-in-title of the plaintiff, had filed a suit for partition claiming half as a share therein. Thus, he was canvassing his claim as a co-owner in possession. How and at what point of time he started prescribing hostile title, was for him to plead and prove, which he has utterly failed in doing. The plea of adverse possession raised by the defendant is devoid of any merit and cannot be countenanced.
The Hon’ble Supreme Court in the case of Karnataka Board of Wakf v. Govt. of India , has held as under:
A plaintiff, filing suit, should be very clear about the original of title over the property. He must specifically plead it. The plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
11. From the principle of law laid down by Hon’ble Supreme Court, it is clear that both the Courts have not erred in law in holding that possession of the plaintiff cannot be said to be adverse and I answer the substantial question of law accordingly against the appellant.
12. With regard to second substantial question of law it is clear that the defendant has filed his counter-claim after the decision of the Board of Revenue. However, certainly she is entitled to take advantage of Section 14 of the Limitation Act and I answer this substantial question of law in favour of the defendant-respondent.
13. With regard to the third substantial question of law, in my opinion, there is no pleading to that effect by plaintiff. Neither there is any discussion to this effect in the judgment of the learned Lower Appellate Court. Hence, there is no necessity to answer the third substantial question of law because it cannot be answered without proper evidence to this effect. Consequently, I do not find any merit in this appeal. It is hereby dismissed without any order as to cost.