V.D. Gyani, J.
1. This is defendants’ second appeal, arising out of the Appellate Judgment and Decree dated 22nd August, 1978, passed by the District Judge, Mandsaur, in Civil Regular Appeal No. 44-A of 1976, thereby, confirming the trial Court’s Judgment and Decree with slight modification in annual mesne profits, which has been reduced from 1500/- to 1000/-.
2. Plaintiff/respondent brought a suit, based on title for possession of agricultural land, bearing survey Nos. 990 and 1000,
admeasunng 5.662 Hactares, situated in village Barkheda Gangasa, tahsil Garoth, District Mandsaur. The original defendant Hajari Khan, entered into an agreement with the plaintiff/respondent’s mother to purchase the suit land. It was in pursuance to this agreement that he continued to remain in possession of the suit land and cultivate the same on ‘adh-batai’.
3. On 21-8-1941, Hajari Khan, moved an application (Exhibit P-3) before the competent revenue authority, known as ‘Suba’, praying for permission for sale of the suit land in his favour, as such permission was required to be obtained under Section 45 of Indore Land Revenue and Tenancy (Act No. 1 of 1931), but the same was refused vide order dated 5-11-1941 (Exhibit P-2), because the vendor,
Hasan Khan was then a minor.
4. The plaintiff/respondent moved an application before the Sub-Divisional Officer, Garoth, for resumption of suit land but the same was dismissed, on 24-8-1962, (as has been averred in the plaint) on the ground that he (plaintiff) failed to establish that Hajari Khan was his sub-tenant. Against this refusal order, an appeal was preferred before the Collector, but the same was also dismissed. The Additional Commissioner, Ujjain, in Second Appeal No. 170 of 62-63, confirmed the Lower Court’s order vide his order dated 16-9-1963 (Exhibit P-6).
5. In the meanwhile, Hajari Khan, the defendant, also brought a suit for declaration of his title in respect of suit agricultural land, which was dismissed in default on 29-7-1974, by order Exhibit P-4. Thereafter, plaintiff/respondent filed the present suit on 6-9-1974, for possession of the suit lands, and recovery of mesne profits thereof at the rate of Rs. 1500/- per annum, and also mesne profits for last three years, immediately preceding filing of the suit.
6, Plaintiff/respondent’s case in short was that, at the time of agreement, he was a minor, Hajari Khan, original defendant, had agreed on ‘adh-batai’ and used to give the same to his
mother. Hajari Khan’s possession was in pursuance to an agreement to sell the suit land, but this sale was not permitted by the Suba, where permission was required by law,
then prevailing the defendant never showed
his readiness and willingness to abide by the
contract, nor called upon the plaintiff for
specific performance of the agreement, even
after his attaining majority. Suit filed by Hajari
Khan for declaration of his title was also
dismissed on 29-7-1974. Plaintiff/respondent,
therefore, brought this suit based on title
claiming possession of the suit land, as also
mesne-profits at the rate of Rs. 1500/-per
7. Hajari Khan died long after filing of the written statement. His defence was that the land in question was purchased by his father in 1935, for Rs. 100/-, and he was put in possession, thereof. This amount of Rs. 100/-was paid to the plaintiff’s mother, but as the required permission was refused, possession remained with him, on the basis of the alleged sale, which on the expiry of 12 years, resulted in perfection of his title by operation of the doctrine of adverse possession. He denied the case of ‘adh-batai’, as pleaded by the plaintiff/respondent, and contended that as the agreement to sale itself was void, there was no question of its specific performance. It was also contended that the suit was barred by time, and alternatively pleaded that in case, Hajari Khan, the defendant was held to be an ‘adh-bataidar’ he became Bhumiswami, in view of Section 190 of M.P. Land Revenue Code. A question relating to the Civil Court’s jurisdiction was also raised, but the Trial Court held that it had jurisdiction to try the suit. The Trial Court, further held that the defendant was not in adverse possession. As the Plaintiff/respondent was a minor, the defendant’s claim as regards his being a Bhumiswami or an occupancy-tenant, was also rejected by the Trial Court, and awarded Rs. 1500/- as mesne-profits.
8. On appeal being preferred by the defendant/appellants the Lower Appellate Court except for reducing the amount of mesne-profits from Rs. 1500/- to 1000/-, maintained the Trial Court’s decree concurring with the Trial Court.
9. Shri Gokhale, learned counsel for the appellants, has raised the following points in this appeal :
i) Hajari Khan, since deceased, and now represented by his legal representatives
Tajibai and others should have been held to be in adverse possession of the suit lands.
ii) Plaintiff/respondent’s suit, filed on 6-9-1974 was barred by time and was liable to be dismissed.
iii) Deceased Hajari Khan, had acquired Bhumiswami rights and should have been held as such.
10. Before taking the question of adverse possession it would be worthwhile to advert to certain basic principles relating to adverse possession.
The classical requirement of ‘adverse- possession’ is that it should be nee vi nee clan nee precario. The possession must be adequate in continuity in publicity and in extent to show that it is adverse to the real owner. There must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the other. When in pursuance to an agreement of sale prospective vendee is put into possession his possession from that moment is not adverse. It is then only a permissive possession. His possession turns to be adverse when something happens to indicate that such prospective vendee does not acknowledge the title of the vendor. In the matter of possession a mental element namely ‘animus possidendis’ must be present. There must be an animus to possess adversly, in order to attract and invoke the doctrine of ‘adverse possession’.
11. Possession is a question of fact and the extent of possession is also a question of fact. Similarly, the question of exclusion or ouster is also a question of fact. The Courts below have negatived Appellants’ claim and contention of being in ‘adverse possession’ of the suit land.
12. Shri Gokhale, learned counsel for the appellants, on the basis of facts as found by the Courts below submitted that Hajari Khan’s possession became adverse right from 21-8-1941, when the suit land was agreed to be sold and the defendant/appellant was put in possession. Since, permission to sell was refused by the Competent Authority the ‘Suba’, on 5-11-1941, vide Exhibit P-2, in any case defendant/appellant’s possession became adverse from that date. Shri Chaphekar,
referred to para 9 of a decision as reported in
AIR 1970 SC 546 Nathulal v. Phoolchand
and contended that the appellants cannot
retain possession on the basis of the agreement
for sale of the suit land. One of the conditions
enumerated by the Supreme Court for making
out a defence of part performance to an
auction sale by the owner is that the transferee
has performed or is willing to perform his
part of the contract. The appellants could
defeat the claim only on establishing their defence of part performance but such is not
the case here. Therefore, they cannot retain
and remain in possession of the suit land on
the basis of the agreement for sale. Referring
to Exhibit P-6, order dated 16-9-1963, passed
by the Additional Commissioner, Ujjain
Division, Ujjain, which contains a recital to
the effect, that Hajari Khan, the defendant
had opposed plaintiff/respondent’s claim for
resumption of suit land, under Section 189 of
M.P.L.R. Code, it was contended that the
defendant/appellant had asserted his title as
back as 1960-61, which can be gathered from
the Revenue Case No. 25/60, as given in the
order Exhibit P-6, and further corroborated
by Plaintiff’s application, dated 1-10-1960,
Exhibit D/2, which was rejected by the Sub-
Divisional Officer on 24-8-1962, against which
an appeal was preferred to the Collector,
which also stood dismissed on 22-11-1962. A
second appeal to the Revenue Commissioner
was dismissed on 16-9-1963, vide order Exhibit
P/6. Thus, according to the learned counsel,
the defendant/appellant, in any case should
be deemed to have asserted his adverse title,
prior to 24-8-1962, when the Sub-Divisional
Officer, passed order, dismissing
plaintiff/respondent’s application for
resumption of suit land under Section 189,
M.P.L.R. Code. Even if the time period is
calculated from the date of this order, still,
the suit for possession filed on 6-9-1974, is;
barred by time.
13. Shri Chaphekar, learned counsel for the respondent, on the other hand, submitted that no such assertion of ‘adverse possession,’ can be inferred from the order dated 16-9-1963 (Exhibit P-6). He referred to Sections 40, 42 and 43 of the Evidence Act and contended that no such inference can be drawn ‘as is sought to be suggested by the learned counsel.
If the appellants so desire they ought to have
filed the reply (certified copy), which Hajari
Khan, filed to the defendant/respondent’s
application under Section 189 of M.P.L.R.
Code. In absence of any such record being
placed by the appellants, no such inference
of ‘adverse possession’ can be drawn from
the order Exhibit P/6.
14. The question which arises for consideration is whether appellant’s possession can be said to be adverse and as to when it became adverse to the plaintiff/respondent? Admittedly, the defendant/appellant was in possession of the suit land on the basis of an agreement to sell, although the said agreement could not be materialised for want of sanction by the Competent Authority, as required under Section 45 of the Indore Land Revenue and Tenancy Act, 1931. Whether such possession can be said to be adverse and remaining and continuing to be in possession on the strength of such ah agreement, can attract the doctrine of ‘adverse possession’? Shri Chaphekar, learned counsel for the respondent, has submitted that in the first place, it was for the defendant/appellant to plead and prove how and from what time their possession, which was initially permissive, changed its character and became adverse, unless such a plea is specifically raised in the pleading and proved, the appellants cannot, merely on the basis of their possession in pursuance to the agreement for sale claim ‘adverse possession’. Learned counsel placing reliance on a decision of the Supreme Court as reported in AIR 1971 SC 996, State Bank of Travancore v. Arvindan Kunju, submitted that such possession is permissive and not adverse. The Supreme Court held :
“Where the suit property of Tharwad was ail along in the possession of tenants, the possession of a person who has only a lien over the property for the amount advanced by him, will be symbolical and will not be permissive possession. Also, subsequent purchaser of that person’s right can have no better title than what that person had. So in absence of evidence to show that that person or his successor in interest asserted any hostile title to the suit property to the knowledge of the true owners at any time before the suit,
their possession cannot be said to be adverse possession.”
“A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more.”
Shri Gokhale, learned counsel has placed reliance on a decision as reported in AIR 1924 Nag 222 Kasturi v. Baliram, and
submitted that appellants’ possession should
be deemed to be adverse. The judgment relied upon, relates to an oral gift or transfer of property by gift, donner divesting himself
of all the Characteristics of ownership, while
in the case of an agreement for sale of
property, the element of ownership is retained
by the vendor. This case, therefore, has no
application to the facts of the instant case.
Kasturi's case, (AlR 1924 Nag 222) is based on Privy Council's decision as reported in AIR 1919 PC 44 Varada Pillai v. Jeevarathanammal. 15. The Privy Council in Ejas Ali v. Manager, Court of Wards, AIR 1935 PC 53 observed, "the principle of law is firmly established that a person, who basesor. This case, therefore, has no application to the facts of the instant case. Kasturi's case, (AIR 1924 Nag 222) is based on Prv. Manager, Court of Wards, AIR 1935 PC 53 observed, "the principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
Possession to be adversed, must be possession by a person, who does not acknowledge the other’s rights, but denies them. In this case the defendant, while opposing plaintiffs’ application for resumption of suit land under Section 189 M.P.L.R. Code, put forth the agreement to sell on the basis of which he was in possession of the suit land. Thus, the source and strength of appellants’ possession was the agreement to sell. Adverse Possession is always a unilateral act and there is no question of any contract or agreement giving rise to ‘adverse-possession’. Possession under the Contract for sale is only a provisional , holding on the sufferance of one who agrees to sell, and not adverse to him, and such
possession is merely permissive and continues to be permissive, until the person entering into agreement to purchase, by some overt act declares his hostile title and establishes the same for the required period, so as to attract the doctrine of ‘adverse-possession’ in his favour. While opposing plaintiff’s application for resumption of land the defendant/appellant projected the agreement to sell, for justifying his possession of the suit land, thus acknowledging the plaintiff’s title, the concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse, must be possession by a person who does not acknowledge the other’s rights, but denies them. For deciding whether the
alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. (See (1968) 2 Mad LJ 574). In view of the facts, set forth above, the plea of adverse possession taken by the appellant cannot prevail and has been rightly negatived by the Lower Courts. Where a person is in possession only
under an agreement to sell, he cannot during
that period have the animus of exercising possession as true-owner, but only, of exercising permissive possession, which may ripen into ownership on the sale-deed being executed. (See 1974 All U 955). It may also be noted, that Hajari Khan, the defendant had on 7-2-1972 filed C.O.S. No. 15-Aof 1972, for declaration of his title based on ‘adverse possession’, but the suit was dismissed on 27-7-1974. This fact can and should not be overlooked, while considering the question of ‘adverse possession’ as raised by the
16. So far as proceeding under Section 189, M.P.L.R. Code is concerned, it does not help the defendant/appellant. Object and purpose of Section 189, M.P.L.R. Code must also be borne in mind. The condition precedent for invoking Section 189 is the subsistence of relationship of Bhumiswami and occupancy, tenant, existing between the parties. It was on this ground that the plaintiff/respondent failed in the Revenue Proceedings, as he could not establish, that the defendant was an occupancy tenant. The defendant/appellant was found to be in possession of suit land. On the basis of an agreement to sell and not as a sub-tenant
(Up-krishak). Thus, it will be clear, that it was not the case of assertion of any hostile title, by the defendant/appellant, but the claim of possession based on agreement to sell, which resulted in dismissal of plaintiff’s, application under Section 189, M.P.L.R. Code.
17. The case as pleaded by the defendant Hajari Khan, was that it was his father, who in the year, 1935, had agreed to purchase the suit land for Rs. 100/-, but the two Courts below, have disbelieved this case. There is a concurrent finding to the effect that the defendant was in possession of the suit land since 1941 in pursuance to an agreement to sell (See para 30 of the judgment under appeal). Shri Gokhale, learned counsel for the appellant, has placed reliance on a decision reported in AIR 1951 SC 469 (Collector of Bombay v. Municipal Corporation Bombay) and it was contended on the basis of this decision, that even if the sale was void, defendant appellant’s possession should be treated as adverse to the vendor. As observed earlier, the determining factor, for invoking the doctrine of ‘adverse possession’, is the intention of the parties. It was on the basis of this determining factor, that the Supreme Court observed as follows:
“The sole question for our consideration is whether on the facts of this case, the respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in consequence of a specific limit to assessment having been established and preserved. There is no dispute that by reason of the non-compliance with the statutory formalities the Government Resolution of 1985, is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract. On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take grant of the land in terms of the Resolution of 1985, including an undertaking by the Government not to charge any rent. Both parties acted on the basis of that Resolution and the predecessor-in-title of the respondent Corporation went into possession of the land in question pursuant to the Government Resolution 1985 and,
acting upon the said Resolution and the terms contained therein, the respondent Corporation and its predecessor-in-title spent considerable sums of money in levelling the site and erecting and maintaining the market building and have been in possession of the land for 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor-in-title in relation to the land in question? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its predecessor-in-title was that of a person having no legal title, but nevertheless holding possession of the land under colour of an invalid grant of land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the j respondent Corporation has acquired the ! limited title to it and its predecessor-in-title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent, but only for the purposes of a market in terms of the Government Resolution of 1965.”
This case is clearly distinguishable on facts, the defendant in the instant case had asserted the contract of sale for justifying his possession, before the Revenue Authorities. When plaintiff/respondent moved for resumption of land, he took shelter behind the contract, rather than asserting his ‘adverse possession’ and when he (defendant) in fact, asserted his title, based on ‘adverse possession’, by filing a suit, the same was dismissed. Thus, the decision does not help the appellants.
18. The other case, which has been referred to by the learned Counsel for the appellants, is Dagadu v. Trakadu, AIR 1957 Bom 79, in this case, possession was delivered to by the buyer on the date of sale, which was recorded in the village record on 27-9-1934, it was a case of complete and outright sale, not an agreement or contract, conditioned by
sanction to be obtained by any authority, as the facts of the case at hand reveal.
19. For the foregoing reasons, it must be held that the appellants have failed to establish their adverse possession and two Courts below were right in holding that the defendant failed to prove his ‘adverse possession’. The finding being concurrent, it is all the more reinforced.
20. Shri Gokhale, learned counsel for the respondent, has strenuously argued that even if, ‘adverse possession’ is not established, plaintiffs suit for possession must fail on the ground of limitation, in view of Article 142, of the Limitation Act, 1908. Before proceeding to deal with this point, it would be proper, to recapitulate certain admitted or proved facts, as found by the Court below.
(A) Admittedly, the plaintiff was a minor,
barely 11 months old on 21-8-1941, when
defendant Hajari Khan, came to be in
possession, of the suit land on the basis of the
contract for sale. !
(B) Sanction to sell was refused by the ‘Suba’ vide order dated 5-11-1941 (Exhibit P/2), such sanction was a ‘must’ under Section 45 of Indore Land Revenue and Tenancy Act (No. 1 of 1931).
(C) Plaintiff had applied for restoration of possession of suit land under Section 189, M.P.L.R. Code on 1-10-1960 (vide Exhibit D/2), but plaintiff failed in his bid, before the Revenue Courts, Exhibit P/6, is the order passed in Second Appeal by Additional Commissioner, Ujjain Division, Ujjain.
(D) Suit for declaration of title based on ‘adverse possession’ was dismissed by the Civil Court on 29-7-1974. It was suit No. 15-A of 1972, filed by defendant Hajari Khan.
Coming to the question of Limitation, Article 142 of the old Limitation Act, 1908, reads as follows :
Time from which period begins to run
possession of immovable property when
the plaintiff, while in possession of the property, has been
dispossessed or has discontinued the possession.
The date of the dispossession or
144 of the old Limitation Act, 1908 may also be reproduced since the learned
counsel has referred to it.
Time from which period beings to run.
possession of immovable property or any interest therein
not hereby otherwise specially provided for.
When the possession of the defendant
becomes adverse to the plaintiff.
Learned counsel for the appellant, submitted that the plaintiff, who was born in 1939, having attained majority on 1-10-1957, should have brought the suit for possession within three years from the date of attaining majority i.e by 1-10-1960. In any case, the suit should have been filed within twelve years from 24-8-1962, When the Sub-Divisional Officer dismissed plaintiffs application for resumption of land under Section 189, M.P.L.R. Code. The suit filed on 6-9-1974, was apparently barred by time. Shri Chaphekar, learned
counsel for the respondent, on the other hand contended, that Article 142, has no application to the plaintiffs case, learned counsel for the appellant, placing reliance on a decision of this Court, as reported in AIR 1962 Madh Pra 31, Laxminarain v. Vithaldas, submitted that the plaintiff/respondent should be deemed to have discontinued possession on 21-8-1941, when the defendant/appellant was put in possession of the suit land under agreement to sell. Shri Chaphekar, on the other hand, submitted and rightly so, that discontinuance means abandonment of possession, and intention of such abandonment must also be established. The case relied upon by the appellant turns on its own facts, as can be seen from paragraph 11 of the judgment which reads as follows :
“Here it is admitted that the possession of the Bagichi had been voluntarily abandoned by the plaintiffs’ father and it has been found I as a fact that since 1925, the premises have been continuously used by the members of the club for recreation purposes. This is, therefore, a clear case of discontinuance of possession and Article 142 applies to it. And since the suit was instituted on January, 1953, it was clearly barred by time.”
This case, however, is instructive, so far as the concept of discontinuance and the difference between dispossession and discontinuance is concerned, following passage from this decision is reproduced:
“Discontinuance means that a person in possession goes out and is followed into possession by another person. It implies that all indications of occupation have been withdrawn. It is difficult to suppose a case where it can be doubtful whether there has been a discontinuance of possession to a building, but it is possible to conceive a case of discontinuance of possession as to a piece of land where the owner does nothing to it for a space of 12 years. After all it is a question of fact. What may amount in a particular case to discontinuance of possession depends very much on the nature of the property and the particular circumstances. In Abdul Latif v. Nawab Khajeh Habibulla, AIR 1939 Cal 354, the learned Judge saw three elements in ^e terms ‘discontinued’ in Article 142 — two physical and one mental.
“There must be (1) actual withdrawal
(2) with an intention to abandon and
(3) another should step in and begin to occupy after withdrawal.”
21. The distinction between ‘discontinuance of possession and ‘dispossession’ was pointed out in the leading case of Rains v. Buxton, (1880) 14 Ch D 537, in these words :
“The difference between dispossession and discontinuance of possession might be expressed in this way — the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed into possession by other persons.”
The definition has been widely accepted. In Meharban Lalli v. Yusuf Khan Kallu, AIR 1939 Nag 7, the law has been succinctly laid down by Vivian Bose, J. thus :
“The term ‘dispossession’ applies when a
person comes in and drives out others from
the possession against the will of the person
in actual possession. This driving out cannot
be said to have occurred when according to
the case of both sides the transfer of possession
was voluntary, not against the will of the
person in possession but in accordance with
his wishes and active consent. The term
‘discontinuance’ however, implies a voluntary
Act, an abandonment of possession followed
by the actual possession of another. It implies
that the person discontinuing has given up
the land and left it to be possessed by any one
choosing to come in. There must be an
intention to abandon title before there can
be said to be a discontinuance in possession.
But this cannot be assumed. It must be either
admitted or proved.”
An agreement to sell does not imply that all indications of occupations have been withdrawn. The defendant/appellants should have proved plaintiff/respondent’s dispossession by adducing cogent and convincing evidence. It is, thus, clear that on proved facts of voluntary abandonment of possession, it was found by the Court that Article 142 applied to the facts of that case. The present case is not a case of voluntary abandonment of possession. On account of agreement to sell, defendanf’s possession, as has been held above, was permissive in nature. There was
neither dispossession nor discontinuance of plaintiff’s possession, as such Article 142 has no application to the facts in the instant case. A person who is in possession of a property under agreement for sale is in permissive possession, in anticipation of sale by the real owner. Hence his possession is not adverse to the owner. Possession is never considered adverse, if its commencement can be referred to a lawful title. The defendant who came into possession of the suit land as a result of agreement to sell entered into, by him with the plaintiff’s mother, the nature and character of his possession was attribute and referrable, to the agreement, and so long as he did not divest himself of that character, his possession of the suit land, continued to be permissive. It was contended that Article 142 of the Limitation Act, 1908 does not contemplate ‘adverse possession’ and in view of Section 6 of the said Act, the plaintiff should have brought the suit within 3 years of his attaining majority.
21A. The submissions made by the learned counsel, as regards Article 142, Sections 6 and 8 of the old Limitation Act, have no force, in view of the accepted position, that the suit was filed on 6-9-1974, the new Limitation Act, 1963, came into force on 1-1-1964, and considering the nature of suit for possession, based on title, Article 142, of the old Act has no application. Shri Chaphekar, referred to plaint para. 7 in particular, and submitted that plaintiff’s claim for possession of the suit land was based on title. He pointed out the distinctive feature between Article 64 and Article 65 of the new Limitation Act, and submitted that considering the nature of the suit, claiming possession on the basis of the title it was Article 65 of the Act, which would apply in this case and unless the defendant established his ‘adverse possession’, he would not be able to retain possession of the suit land as against the real owner, the title-holder, the plaintiff-respondent. As it has already been held above, that the defendant has failed to prove his ‘adverse possession’, the submission made by the appellant that suit was barred by time, cannot be accepted. It was urged, that the Lower Appellate Court, in absence of any application under Section 14 of the Limitation Act should not have condoned the time spent by the plaintiff in
seeking his remedy for possession before the Revenue Courts. This objection, loses its significance, in view of the finding that the defendant/appellant has failed to establish his ‘adverse possession’ over the suit land and that the case is governed by Article 65 of the Limitation Act.
22. It was lastly contended, that the
defendant/appellant acquired Bhumiswami
rights on coming into force of the Madhya
Pradesh Land Revenue Code. Learned
counsel for the appellant, referred to
Section 185 of the Code, and submitted that
as the defendant was in possession of the suit
land at the time of coming into force of the
Code i.e. 2-10-1959, he should be held to
have acquired Bhumiswami rights, in respect
of the land held by him. The two Courts
below have negatived this contention and
rightly so. The defendant himself pleaded
‘adverse-possession’ and never considered
himself an occupancy-tenant, when the
plaintiff moved under Section 189 for
resumption of land, he did not come out with
a case of being an occupancy tenant, on the
other hand, sheltered himself behind the
agreement to sale. In such circumstances,
submission made by the learned counsel
cannot be accepted.
23. After the case was closed for judgment, the appellants moved an application placing on record, true copy of a judgment dated 25-2-1977 passed in second appeal No. 491/66, decided by this Court on 25-2-1977. This judgment proceeds on Supreme Court decision, in (C. A. No. 816/66 decided on 3rd April, 1969), Sunder Singh v. Narain Singh. In view of the reported decision, as has been relied upon by the respondent, (AIR 1971 SC 9%) decided on 19-3-1971, apparently after the decision, referred in the true copy, the later decision is preferred, and the judgment, which has been referred to in the true copy, need not be gone into. This judgment has also been reported as a note in AIR 1969 NSC 12, but this does not give any indication about the proposition dealt with, in the true copy.
24. For the foregoing reasons, this appeal fails, and is accordingly dismissed. Counsel’s fee as per schedule, if certified.