- (1.) This appeal by special (leave) arises from the judgment of the learned single judge of the High Court of Madhya Pradesh made on October 12, 1985 in Second Appeal No. 309/80.
(2.) The admitted facts are that the appellant-plaintiff filed a suit for declaration of title and for possession of agricultural lands covered under the schedule of the plaint. The respondent pleaded adverse possession. The trial Court, therefore, recorded a finding that the respondent had perfected his title by adverse possession for having remained in possession for more than 12 years. On appeal, the District Judge reversed the decree on the ground that the respondent had come into possession under a power of attorney and, therefore, he remained to be in possession as an agent on behalf of the principal. The appellant claimed title through one of the principals who has given power of attorney under Ex. P. 3. Respondent admitted that he had come into possession thereunder and, therefore, he cannot plead adverse possession against the appellant. In second appeal, the learned single Judge considered the controversy in relation to the documentary evidence and held thus: "The word Shikmi used in the application has, therefore, to be construed in the context of the facts expressly stated therein. Ex. P-3 is the statement of defendant Chhatarpal Singh (sic) nowhere admitted his possession through the plaintiffs. He expressly stated that his possession was a result of an arrangement made before abolition of Jagirs. No doubt, he also said that the Pawaidars Ramkishore and Vimalprasad had given Mukhtiyarnama, to begin with, but the Mukhtiyarnama was cancelled long back. He nowhere admitted the Mukhtiyarnama being given by plaintiffs Kalika Prasad and Ambika Prasad or his possession being through the plaintiffs at any time. Ex. P-4 is the order dated 3-6-1969 in that proceeding rejecting the defendants application under Section 190 of the, Code. In my opinion, there is nothing in these documents, which can be construed as defendant Chhatarpal Singhs admission of being inducted into the suit-land by the plaintiffs so as to constitute his possession as permissive through the plaintiffs. His admission of initial entry under a Mukhtiyarnama given by the other Pawaidars was only in respect of possession prior to abolition of jagirs and it is obvious that the same is of no consequence after abolition of Jagirs, which itself is an event more than twelve years prior to the date of suit. The only remaining document for consideration is Ex. D-9. This is an order dated 30-7-1959 on an application made by Ramkishore, one of erstwhile Pawidars claiming a similar interest in the suit-land, as the present plaintiffs by seeking a declaration under Section 169 of the M. P. Land Revenue Code. That application was dismissed holding that the plaintiff had no right over the suit-land to challenge the defendants possession therein. This document itself is sufficient to indicate the assertion of hostile title by defendant Chhatarpal Singh and his claim of possession over the suit-land in his own right at least when the application under Section 169 of the Code was filed on 8-11-1957 by Ramkishore making the same assertion that the possession of Chhatarpal Singh over title suit-land was as Mukhtiyar of the Pawaidars. This claim was rejected on 30-7-1971. This document alone proves defendants adverse possession for more than twelve years prior to the date of suit. It is, therefore, clear that the first appellate Court misread and misconstrued the aforesaid documents, Ex. P-1 to Ex. P-4 and Ex. D-9, to reach the conclusion that defendants possession over the suit-land was permissive, on account of which the plaintiffs suit could be decreed. Reversal of the trial Courts finding was the result of this error. The conclusion reached by the first Appellate Court being contrary to law, has to be set aside.
(3.) On that basis, the learned single Judge concluded that the documentary evidence, Ex. P-1 to P-4 and D-9 was misconstrued by the District Court to come to the conclusion that the respondent had come into possession by a permissive possession and remained in that capacity. Accordingly, he set aside the decree and concluded that the respondent had perfected his title by adverse possession.;