MADHAVKRISHNA AND ANR.versusCHANDRA BHAGA AND ORS.

                     MADHAVKRISHNA 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 pe1fected 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 peifected 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.                                                            G
      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.

        The admitted facts are that Mansaram had two sons by name,                H
                                   665
                                                •
        666                  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
             It is seen that the respondents have pleaded in their written state-
        ment in para 9 as under :
0

                "The plaintiffs are not the exclusive owners of the suit house. The
    F           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
    G           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
    H           the defendants being in actual possession of the suit land for over
                  MADHAVKRISHNAv. 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 possession. The question is : whether the view of the High
   Court is correct in law? A reading of the pleadings would clearly indicate
   that they set up their own title to the property and they have remained C
   in possession for more than 12 years and, therefore, they sought for the
   suit to be dismissed on that ground. In view of the fact that Mansaram
  .was found to be the owner in the earlier suit and he died on December
   12, 1968 until then the question of adverse possession did not arise. The
   plea of adverse possession as against Mansaram was not pleaded. In this D
   case, except repeating the title already set up but which was negative in
   the earlier suit, namely, that they had constructed the house jointly with
   Mansaram, there is no specific plea of disclaiming the title of the
   appellants from a particular date, the hostile assertion thereof and then
   of setting up adverse possession from a particular date to the knowledge E
   of the appellants and of their acquiescence. Under these circumstances,
   unless the title is disclaimed and adverse possession with hostile title to
   that of the Mansaram and subsequently as against the appellant is pleaded
   and proved, the plea of adverse possession cannot be held proved. In this
   case, such a plea was not averred nor evidence has been adduced. The p
   doctrine of adverse possession would arise only when the party has set
   up his own adverse title disclaiming the title of the plaintiff and
   established that he remained exclusively in possession to the knowledge
   of the appellant's title hostile to their title and that the appellant had
   acquiesced to the same. Since there is no plea that he had claimed any G
   hostile title against Mansaram, the owner of the property, the earlier
   decree operates as res judi,cata. The present suit was filed within 12 years
   from the date of the demise of Mansarain; hence, it was obvious that no
   adverse possession has been perfected against the appellant. Moreover,
   as against Mansaram, the predecessor in title of the appellant, the earlier H
    668                 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A decree operate as constructive res judicata on the principle of might and
    ought. The High Court, obviously, was incorrect in its finding that the
    respondents ·had perfected their title by adverse possession.

         The appeal is accordingly allowed. The judgment and decree of the
B   High Court stands set aside and that of the trial Court and the appellate
    Court stand restored. No costs.

    G.N.                                                     Appeal allowed.