MADHAVKRISHNA AND ANR. versus CHANDRA BHAGA AND ORS.

Citation: [1996] SUPP. 6 S.C.R. 665 · Decided: 23-09-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Appeal(s) allowed
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Judgment (excerpt)

MADHA VKRISHNA AND ANR. 
A 
v. 
CHANDRA BHAGA AND ORS. 
SEPTEMBER 23, 1996 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
B 
Code of Civil Procedure : 
S. 11-Res judicata-Suit filed-Trial Cowt held that properties in 
question not family prope1ties-Decree became final-Properties bequeathed C 
by way of a will-Suit filed for title and possession-Decreed-High Court 
setting aside the decree on the ground that the other p01ty had pe1f ected the 
title by adverse possession-On appeal held, since there was no claim of 
hostile title against the owner of the prope1ty, the earlier decree operates as 
res judicata-Subsequent suit filed within 12 years from date of death of the 
owner-Obviously 110 adverse possessio11 had bee11 peif ected against the D 
appellant-Moreover, as against the predecessor i11 title of the appellant, the 
earlier decree operates as constructive res judicata 011 the plinciple of might 
a11d ought-Judgme11t a11d decree of High Court set aside. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12994 of E 
1996. 
From the Judgn1ent and Order dated 3.7.95 of the Madhya Pradesh 
High Court in S.A. No. 102 of 1989. 
~ 
AK. Chitale and Niraj Sharma for the Appellants. 
F 
Sushil K. Jain for the Respondents. 
The following Order of the Court was delivered : 
Leave granted. 
This appeal by special leave arises from the judgment and order 
dated July 3, 1995 passed by the High Court of Madhya Pradesh Bench at 
Gwalior in S.A. No. 182/89. 
G 
The admitted facts are that Mansaram had two sons by name, H 
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SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R. 
A 
Babula! and Parasram. The appellants are the descendants through 
Babula) and the respondents are descendants through Parasram. In an 
earlier suit No. 384-N64, the respondents pleaded in their plaint that 
Mansaram, Babula) and Prasaram were members of the joint family and, 
therefore, each of them was entitled to l/3rd share in the suit property. 
B They sought for partition and a decree for partition by meets and bounds 
to the extent of their 1/3rd share in the said house. It was held that 
Mansaram was the exclusive owner of the property and that it was not a 
joint family property and that the respondents have no right to partition 
of the said property. The decree has become final. Mansaram, during his 
C lifetime, had executed a registered Will on March 28, 1964 bequeathing 
the properties to the appellants and Mansaram died on December 12, 
1968. The appellants filed the suit on November 14, 1977 for declaration 
of title and for possession thereof. The Civil Court in Suit No. 942-A of 
1984, Vllth Civil Judge, Civil II, Gwalior by order dated May 10, 1985 
D decreed the suit. On appeal, the 4th Additional Judge, Gwalio! upheld 
the same by decree and judgment dated August 21, 1989. The High Court 
in the second appeal while upholding that the Mansaram was the owner 
and had validly bequeathed it under the Will in favour of the appellants 
set aside the decree on the ground that the respondents had perfected 
that title by adverse possession. Thus, this appeal by special leave. 
E 
F 
G 
H 
It is seen that the respondents have pleaded in their written state-
ment in para 9 as under : 
"The plaintiffs are not the exclusive owners of the suit house. The 
northern portion of House Municipal No. 217 situated at Nimbaji 
Ka Bag, Jiwaji Lashkar, was constructed by Parasarm and Man-
saram. Parasaram had died 25 years ago. The defendants are the 
heirs of Parasram. The southern portion was constructed by the 
defendants and Mansaram together. In this way, the defendants 
are residing in the suit house in the capacity of owner which fact 
is within the knowledge of the plaintiffs and their ancestors from 
the very beginning. House Municipal No. 2/7 is of the joint Hindu 
Family of the plaintiffs and the defendants. For this reason, the 
plaintiffs have no right to file the suit and recover possession and 
the defendants being in actual possession of the suit land for over 
MADHA VKRISHNAv. CHANDRABHAGA 
667 
12 years, the suit is barred by limitation and deserves to be A 
dismissed." 
No doubt there is an issue raised on the plea of adverse possession 
and findings recorded by the course below was that the respondents had 
not perfected their title by adverse possession. The High Court has B 
reversed that finding on the ground that the respondents remained in 
. possession for more than 12 years and thereby they perfected their title · 
by adverse possessi
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