{"id":11025,"date":"2003-03-04T00:00:00","date_gmt":"2003-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bondar-singh-ors-vs-nihal-singh-ors-on-4-march-2003"},"modified":"2016-03-02T23:28:12","modified_gmt":"2016-03-02T17:58:12","slug":"bondar-singh-ors-vs-nihal-singh-ors-on-4-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bondar-singh-ors-vs-nihal-singh-ors-on-4-march-2003","title":{"rendered":"Bondar Singh & Ors vs Nihal Singh & Ors on 4 March, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bondar Singh & Ors vs Nihal Singh & Ors on 4 March, 2003<\/div>\n
Author: A Kumar<\/div>\n
Bench: R.C. Lahoti, Arun Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  7579 of 1999\n\nPETITIONER:\nBondar sIngh & Ors.\n\nRESPONDENT:\nNihal Singh & Ors.\n\nDATE OF JUDGMENT: 04\/03\/2003\n\nBENCH:\nR.C. Lahoti & Arun Kumar.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARUN KUMAR, J.\n<\/p>\n
\tThis appeal is directed against the judgment and decree dated
\n16th November, 1998 passed by the Indore Bench of the High Court
\nof Madhya Pradesh.  As a result of the decision of the High Court the
\nsuit filed by the plaintiffs\/respondent was decreed.  The plaintiffs had
\nfiled a suit for declaration that they had become  owners of the lands
\nin suit by adverse possession and for injunction to restrain the
\ndefendants from interfering with the plaintiffs’ possession of the suit
\nlands.\tThe trial Court had decreed the suit, however, the appeal filed
\nby the defendants against the trial court judgment was allowed by the
\nAdditional District Judge, Dhar, M.P. and the suit was ordered to be
\ndismissed.  Further an appeal filed by the plaintiffs against the said
\njudgment of the Additional District Judge was allowed by the High
\nCourt and the suit was finally decreed.\n<\/p>\n
\tBriefly the facts are that the plaintiffs (respondents herein) claim
\ntitle to the land in suit on the basis of the plea that they had become
\nits owners by adverse possession.  The land was owned by one Fakir
\nChand predecessor in interest of the appellants herein (defendants in
\nthe suit). Fakir Chand sold the land to Tola Singh, predecessor in
\ninterest of the plaintiffs by an unstamped and unregistered sale deed
\ndated 9.5.1931.\t The plaintiffs claim to have entered into possession
\nof the land on the basis of the said sale deed and they claim to be
\ncontinuously in possession since then. The defendants tried to
\ndispossess the plaintiffs which led to the present suit being filed by
\nthem on 15.4.1972.  In the written statement filed by the defendants
\nthey denied the sale of land by their father Fakir Chand to Tola Singh.
\nThey denied possession of the plaintiffs of the suit land.  They also
\ntook the plea that the alleged sale deed was false, fictitious and
\nwithout consideration.\tAccording to the defendants, their father was
\nin possession of the lands till his death.  After the death of their
\nfather, their mother had given possession of the land to Tola Singh
\nfor purpose of cultivation in order to earn some money for supporting
\nher family. According to the defendants they had taken back
\npossession of the land from Tola Singh in the year 1957-58.  They
\nalso pleaded that after the death of Fakir Chand, the land had been
\nmutated in their names in the revenue records to the knowledge of
\nthe plaintiffs.\t The plea of adverse possession was denied by stating
\nthat actually the defendants were in possession of the land and there
\nwas no question of adverse possession of the land by the plaintiffs
\nqua the suit land.\n<\/p>\n
\tThe main question for consideration in the present suit is as to
\nwhether the plaintiffs were in hostile continuous possession of the suit
\nlands by virtue of which they had perfected their title to the land by
\nadverse possession.  Both parties claim to be in possession of the
\nsuit land.  While considering the above question, the Court will also
\nhave to look into the plea raised by the learned counsel for the
\nappellants\/defendants that the plaintiffs had come in possession of
\nthe suit land for a brief period after the death of Fakir Chand, father of
\nthe defendant as “Shikmi” that is sub-tenants.\tThe plea of sub-
\ntenancy was as such not raised in the written statement nor any issue
\nwas framed by the trial Court  in this connection.  No particulars of
\nalleged sub-lease were given.  Not even date of creation of alleged
\nsub-lease was stated. The defendants have tried to build an
\nargument based on plea of sub tenancy (shikmi)at appellate stage.
\nIn support of this plea they rely on certain entries in the revenue
\nrecords. Since this plea pre-supposes possession of the plaintiffs, the
\ndefendants took the stand  that they had taken back the possession
\nof the land from the defendants.\n<\/p>\n
\tBefore we proceed further it is necessary to notice a preliminary
\nargument raised by the learned counsel for the appellants.  It was
\ncontended that the question of possession is a question of fact and
\nthe High Court while exercising power under Section 100 of the Code
\nof Civil Procedure, had no jurisdiction to upset  the findings on this
\nquestion recorded by the lower appellate Court. An appeal under
\nSection 100 C.P.C. can be entertained by the High Court only on a
\nsubstantial question of law.  There can be no quarrel with this legal
\nproposition. The scope of powers of High Court under Section 100
\nC.P.C is a matter of settled law.  The learned counsel for the
\nappellant cited several judgments  in support of his contention.  We
\ndo not consider it necessary to discuss these decisions because so
\nfar as the question of powers of High Courts under Section 100
\nC.P.C. is concerned, it needs no discussion. If the findings of the
\nsubordinate courts on facts are contrary to evidence on record and
\nare perverse, such finding can be set aside by the High Court in
\nappeal under Section 100 C.P.C.\t A High Court cannot shut its eyes
\nto perverse findings of the courts below.   In the present case the
\nfindings of fact arrived at by the lower appellate court were  contrary
\nto evidence on record and, therefore, perverse and the High Court
\nwas fully justified in setting aside the same resulting in the appeal
\nbeing allowed and suit being decreed.\n<\/p>\n
  The main question as we have already noted is the question
\nof continuous possession of the plaintiffs over the suit lands.\t The
\nsale deed dated 9.5.1931 by Fakir Chand, father of the defendants in
\nfavour of Tola Singh, the predecessor interest of the plaintiff,  is an
\nadmitted document in the sense its execution is not in dispute.\t The
\nonly defence set up against said document is that it is unstamped and
\nunregistered  and therefore it cannot convey title to the land in favour
\nof plaintiffs.\tUnder the law a sale deed is required to be properly
\nstamped and registered before it can convey title to the vendee.
\nHowever, legal position is clear law that a document like the sale
\ndeed in the present case, even though not admissible in evidence,
\ncan be looked into for collateral purposes.  In the present case the
\ncollateral purpose to be seen is the nature of possession of the
\nplaintiffs over the suit land. The sale deed in question at least shows
\nthat initial possession of the plaintiffs over the suit land was not illegal
\nor unauthorized. It is significant to note that the sale deed is dated
\n9.5.1931 and Fakir Chand died somewhere in the year 1949-50.
\nDuring his lifetime Fakir Chand never disputed plaintiffs’ title or
\npossession of the suit land.  There is other reliable evidence on
\nrecord which establishes that the plaintiffs have been in continuous
\npossession of the land in question.  There is a notice dated 16.4.1956
\nExhibit P.6.  The notice was issued on behalf of the defendants and is
\naddressed to the predecessor interest of the plaintiffs. By the notice
\nthe defendants\tcalled upon the plaintiffs to hand over possession of
\nthe suit land to them.\tAccording to the notice, the plaintiffs were
\ntrespassers on the suit land and were liable to hand over its
\npossession to the defendants.  This notice is an admission on the
\npart of the defendants that the plaintiffs were in possession of the suit
\nland at least on the date of the notice i.e. 16th April, 1956.\tThe notice
\nwas followed by an application dated 8th May, 1956 (Exhibit P.3). filed
\nby the defendants under Section 58 of the Madhya Bharat Land
\nRevenue and Tenancy Act, 1950 before the revenue authorities.  In
\nthe said application the defendants admit that the land in question
\nwas in possession of the plaintiffs since the lifetime of their father.\t It
\nis further admitted that the land was being cultivated by the plaintiffs.
\nIt was prayed in the said application that the plaintiffs be declared
\ntrespassers over the suit land and possession of the land be given to
\nthe defendants.\t In their reply to the application, the present plaintiffs
\ndenied the allegation that they were trespassers on the suit land, they
\nrefer to the sale deed of 9.5.1931 by Fakir Chand in favour of their
\npredecessor.  Thus the plaintiffs were all along asserting that they
\nwere in possession of the land in their own right.  The Tehsildar vide
\nhis order dated 3rd October, 1959 dismissed the said application of
\nthe defendants.\t He relied on an admission on the part of Poonam
\nChand, eldest son of Fakir Chand that the present plaintiffs were in
\npossession for the last 26-27 years.  Relying on the said statement
\nthe revenue authorities held that since possession of the present
\nplaintiffs was continuing for last 26-27 years they could not be
\ndispossessed from the suit land.  The application of the defendants
\nwas dismissed.\tThe defendant filed an appeal against the said order
\nwhich was also dismissed on 6.8.1962.  A copy of the order of the
\nTehsildar is Exhibit P.8 while a copy of the order of the appellate
\nauthority i.e. S.D.O. is Exhibit P.9.  These judgments of the revenue
\nauthorities establish that at least till 1962 the plaintiffs were in
\npossession of the suit land.  They also totally nullify the assertion of
\nthe defendants in their written statement in the present suit that they
\nhad taken possession of the suit land in 1957-58.  If they had taken
\npossession of the suit land in 1957-58 why were they pursuing the
\nmatter before the revenue authority till 1962 when the appeal was
\ncontested before the S.D.O. and the decision of the S.D.O. was given
\non 6.8.1962?\n<\/p>\n
\tIt appears that having failed to obtain possession of the suit
\nland through lawful means, the defendants tried to dispossess the
\nplaintiffs forcibly which led to the present suit being filed on
\n15.4.1972.  The claim of the defendants regarding taking possession
\nof suit land from plaintiffs in 1957-58 having been found to be false, it
\nfollows that the defendants never came into possession of the suit
\nland.  Another significant conclusion which follows from these facts is
\nthat the defendants started asserting their title to the suit land since at
\nleast 1956 when they issued the notice Exhibit P.6 while the plaintiffs
\nhave been denying their title to the  suit land and were setting up their
\nown  title to the same.\t This lends support to the plea of adverse
\npossession set up by the plaintiffs.  It will be seen from this clear and
\nclinching evidence on record that the plaintiffs were in continuous and
\nuninterrupted possession of the suit land since 1931 and they had
\nbeen setting up a hostile title thereto as against the defendants.  The
\ndefendants were asserting their title to the land since 1956.  They had
\nhowever failed to get possession of the suit land.  The plea of
\nadverse possession raised by the plaintiff is thus clearly established.\n<\/p>\n
\tAs regards the plea of sub tenancy (shikmi) argued on behalf of
\nthe defendants by their learned counsel, first we may note that this
\nplea was never taken in the written statement the way it has been put
\nforth now.  The written statement is totally vague and lacking in
\nmaterial particulars on this aspect.  There is nothing to support this
\nplea except some alleged revenue entries.  It is settled law that in the
\nabsence of a plea no amount of evidence led in relation thereto can
\nbe looked into.\t Therefore, in the absence of a clear plea regarding
\nsub tenancy (shikmi) the defendants cannot be allowed to build up a
\ncase of sub tenancy (shikmi).  Had the defendants taken such a plea
\nit would have found place as an issue in the suit.  We have perused
\nthe issues framed in the suit.\tThere is no issue on the point.\n<\/p>\n
\tThe alleged revenue entries relied upon by defendants do not
\nsupport the plea of the defendants that the plaintiffs’ possession of
\nthe land was as shikmi tenants.\t A significant point which militates
\nagainst the argument that the plaintiffs were shikmi tenants on the
\nsuit land is that the mother of the defendants is said to have inducted
\nthe plaintiffs as sub-tenants.\tThe mother of the defendants was alive
\nat the relevant time and her evidence on this point would have been
\nthe best evidence.  She could have been produced in evidence in
\nsupport of this plea.  The defendants, rather than producing her in
\nevidence, created a drama by moving an application for examining
\ntheir mother as a witness on commission.  The trial Court passed an
\norder appointing a Commissioner to record her evidence on
\ncommission.  However, when the Commissioner went to record the
\nevidence of the mother, it was represented to him that she was totally
\ndeaf and dumb and therefore, the Commissioner returned without
\nrecording her statement.  The plaintiffs thereafter moved an
\napplication that the mother of the defendants was  completely hale
\nand hearty and in order to avoid her being cross-examined by the
\ncounsel for the plaintiffs she was purposely not produced as a
\nwitness.  Apart from this, even Puran Chand, the eldest brother of the
\ndefendants was not examined as a witness.  The defendants were
\nsaid to be very young at the time of death of their father.  Punam
\nChand is the eldest son of Fakir Chand.\t He was also kept away from
\nthe court in these proceedings even though he was arrayed as a
\ndefendant in the suit.\tThe written statement filed by the defendants
\nwas a joint written statement by all the defendants except Punam
\nChand.\tPunam Chand did not file a written statement.  The best
\nevidence in relation to the plea of shikmi, though available, was kept
\naway from the court.  It follows from the above that the argument that
\nthe plaintiffs were shikmi tenants in the suit land is wholly devoid of
\nany merit.  The same has therefore to be rejected.\n<\/p>\n
\tRegarding the plea of the defendants that they had taken
\npossession of the land in suit from the plaintiffs somewhere in the
\nyear 1957, the High Court has aptly remarked that the defendants
\nwere required “to open their mouth before the revenue authorities if
\nnot in 1957 at least in the year 1962 to show to the revenue
\nauthorities that they had obtained possession.”\t The High Court has
\nfurther found after scrutinizing the record that the defendants did not
\ncare to file even a single revenue entry for the period between 1956
\nand 1962 that they had been recorded in possession of the suit lands.
\nTherefore, the High Court concluded that the finding recorded by the
\nlower appellate Court was based on surmises and conjecture and
\nwas contrary to the evidence on record and the law.  The High Court
\ncame to a definite finding that Tola Singh predecessor in interest of
\nthe plaintiffs came in possession of the suit land in the year 1931 and
\ncontinued to be in possession thereof till the date the present suit was
\nfiled in 1972.\n<\/p>\n
\tThe defendants have tried to take advantage of the fact that a
\nreceiver had been appointed with respect to the suit land in
\nproceedings under Section 145 of the Code of Criminal Procedure.
\nAccording to the defendants the possession of the receiver was on
\ntheir behalf.  This is not correct.  The plaintiffs had become
\nbhoomiswami with respect to the suit land prior to the appointment of
\nthe receiver.  Therefore, receiver’s possession could not be said to be
\non behalf of the defendants.\n<\/p>\n
The result of the above discussion is that there is no merit in
\nthis appeal.  The stand taken by the defendants\/appellants is totally
\nuntenable.  The appeal is dismissed leaving the parties to bear their
\nrespective costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bondar Singh & Ors vs Nihal Singh & Ors on 4 March, 2003 Author: A Kumar Bench: R.C. Lahoti, Arun Kumar. CASE NO.: Appeal (civil) 7579 of 1999 PETITIONER: Bondar sIngh & Ors. RESPONDENT: Nihal Singh & Ors. DATE OF JUDGMENT: 04\/03\/2003 BENCH: R.C. Lahoti & Arun Kumar. JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-11025","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBondar Singh & Ors vs Nihal Singh & Ors on 4 March, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bondar-singh-ors-vs-nihal-singh-ors-on-4-march-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bondar Singh & Ors vs Nihal Singh & Ors on 4 March, 2003 - 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