Ashok Kumar vs Krishna Chand and Others

Alok Aradhe, J.—This appeal is preferred by the defendant No. 1 who has suffered a decree of possession from both the Courts. This Court vide order dated 24.2.1995 while admitting the appeal had formulated the following substantial question of law:- Whether the plea of adverse possession raised by the appellant was rejected on erroneous assumption that there is no denial of title in the earlier suit between the parties?

Facts giving rise to filing of the appeal, briefly stated, are that the father of the plaintiff, namely, Late Hukumchand was the owner of the house and the site comprised in Plot Nos. 21/1, 21/2 and 19/2. As per the case setforth in the plaint, father of the plaintiff, inducted one Sitaram who is father of the defendants, as tenant some time in 1949-50 in respect of the house situate on Plot No. 21/2 on a monthly rent of Rs. 10/-. In 1968, the plaintiff filed a suit against the father of the defendants,: namely, Civil Suit No. 19-A/ 1968 for eviction on the ground of arrears of rent. A written statement (Exhibit-P-30) was filed by the father of the defendants. In the aforesaid civil suit in paragraph 2(a) of the plaint it was pleaded that for more than 20 years the defendants are the adversely exercising their possession over the house in question. It was further pleaded that they have repudiated the title of plaintiffs father-Late Hukumchand as landlord of the house. The trial Court vide judgment and decree dated 06.8.1970 (Exhibit-P-5), inter alia, held that relationship of landlord and tenant between the parties to the suit is not established. It was further held that notice terminating the tenancy u/s 106 of the Transfer of Property Act was not valid. Accordingly, the suit was dismissed. Being aggrieved by the aforesaid judgment and decree, an appeal was preferred by the plaintiff. During the pendency of the appeal, the father of the defendants expired. However, the present defendants were not brought on record. Accordingly, the appeal was dismissed as abated vide order dated 14.9.1979 (Exhibit-P-6). Thereafter, on or about 27.10.1980 the plaintiff filed the instant suit seeking the relief of possession which was based on title. The defendants filed written statement in which, inter alia, it was pleaded that defendants have acquired title by adverse possession.

The trial Court vide judgment and decree dated 31.3.1987 decreed the suit filed by the plaintiff. The aforesaid decree was affirmed in appeal by the lower appellate Court vide judgment and decree dated 30.1.1995. Being aggrieved by the aforesaid decree, the defendant No. 1 preferred the instant appeal. The instant appeal was decided vide judgment dated 09.5.2006 by this Court by which the matter was remanded to the appellate court to re-decide the appeal by taking into consideration the averments made in exhibit-P-30 i.e. the written statement filed by the father of defendants, namely, Late Sitaram in previous suit The aforesaid judgment was challenged by the plaintiff before the Supreme Court. The Supreme Court vide order dated 11.5.2009 set aside the judgment passed by this Court and remanded the matter to this Court to decide the matter afresh on merits.

Learned senior counsel for the appellant submitted that the father of the defendants, namely, Sitaram in the written statement (Exhibit-P-30) which was filed in the previous suit had denied the title of the father of the plaintiff as well as the relationship of landlord and tenant. It was further submitted that the plaintiff himself in paragraph 9 of the plaint had stated that sometime in the year 1949-50 the father of the plaintiff inducted one Sitaram in possession of the suit house as tenant Thus, the father of the defendants was in possession of the suit house since 1949-50. While inviting the attention of this Court to paragraph 18 of the plaint it was pointed out by learned senior counsel that plaintiff himself has stated in that father of the defendants had denied the title of the plaintiffs father. There is no evidence on record to show that the defendants are the tenants of the plaintiff. However, the courts below have travelled beyond the pleadings of the parties and have recorded the findings. In support of his submissions, learned senior counsel has placed reliance on the decisions of Privy Council reported in Siddik Mahomed Shah vs. Mt Saran and others, 1930 PC 57 (1) and of Supreme Court reported in and Nirod Baran Banerjee Vs. Dy. Commissioner of Hazaribagh,

On the other hand, learned counsel for respondent No. 1 submitted that previous civil ''suit instituted by the father of the plaintiff was dismissed on technical ground. Thereafter, the plaintiff filed the instant suit which is based on title. The defendants have failed to show as to how they were inducted in the premises in question. It was further submitted that in paragraph 2(a) of the written statement (Exhibit-P-30) filed by the father of the defendant in the previous suit, the status of the father of the plaintiff as landlord was denied. It was further argued that there is no pleading with regard to adverse possession in the written statement. The defendants have failed to disclosed the point of time when their possession became adverse to the interest of the plaintiff. Mere long possession is not sufficient to confer title by adverse possession. It was also submitted that both the courts below on meticulous appreciation of evidence on record have recorded a concurrent finding of fact that defendant did not acquire any title by adverse possession. The aforesaid finding is based on evidence available on record and can neither be said to be perverse nor based on no evidence. In support of his submissions, learned counsel has placed rehance on the decisions of Supreme Court reported in Veerayee Ammal Vs. Seeni Ammal, Kulwant Kaur and others vs. Gurdial Singh Mann (Dead) by L.Rs. and others, (2001) 4 5CC 262 , Mst. Sugani Vs. Rameshwar Das and Another, Roop Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs., AIR 2000 SC 1485, The State Bank of Travancore Vs. Aravindan Kunju Panicker and Others, and of this Court reported in General Mines and Quarries Ltd. Vs. Kartar Singh Prem Singh and Others,

I have considered the submissions made by learned counsel for the parties and perused the record. The jurisdiction of this Court to interfere with the findings of facts u/s 100 of CPC is limited to the case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent finding of fact until or unless the same is perverse or contrary to material on record. [See: Sugani (mst.) (supra), Gurdev Kaur V. Kaki, (2007) 1 5CC 546, Praksah Kumar V State of Gujrat, (2004) 5 SCC 140 , Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, and Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, It is equally well settled that this Court in exercise of power u/s 100 of the CPC cannot reappreciate evidence. [See. Thimmaiah and Others v. Nin gamma and Another, (2000) 7 5CC 409 ] It is equally well settled that where on appreciation of evidence, even if two view are possible, this Court in exercise of powers u/s 100 of the CPC would not interfere. [See: Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, and Veerayee Ammal (supra)]. It has further been held by the Supreme Court that interference with a question of fact is not permissible. [See: Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, In S. Appadurai Nadar & another v. A. Chokalinga Nadar and another, (2007) 12 SCC 774 it has been held by the Supreme Court that in exercise of power u/s 100 the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless the finding is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur (supra), Shri Hafazat Hussain Vs. Abdul Majeed and Others, and Bharath Matha v. R. Vijay Rengandathan, (2010) 11 5CC 483].

In a case where the plaintiff takes a plea of acquisition of title by adverse possession, has not only to plead the actual possession but has also to plead the period and date from which he claims the possession. The plaintiff has further to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge that he is the real owner of the land. He is required to demonstrate a hostile title and has to communicate his hostility to the real owner. [See: Krishnamurthy S. Setlur (Dead) by LRs. vs. O.V. Narasimha Setty and others, (2007) 3 SCC 59].

A person who basis his title by adverse possession must show by clear and unequivocal evidence i.e. the possession was hostile to the real owner and amounted to denial to the property claimed. [See: Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc., It is equally well settled that party pleading adverse possession must state with sufficient clarity as to when he is in adverse possession, nature of his possession and the plea of adverse possession is not a pure question of law, but a mixed question of fact and law. [See: Dr. Mahesh Chand Sharma vs. Rajkumari Sharma and others, AIR 1995 SC 869 ]. The plea that permissive possession became adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner, Mere possession for how-so-ever length of time does not result in converting permissive possession into adverse possession. [See: Thakur Kishan Singh (dead) Vs. Arvind Kumar,

In the backdrop of aforesaid well settled legal position the facts of the case may be adverted to. The defendants'' witness No. 1 Babulal has stated in his examination-in-chief that he is not aware as to in which capacity the plaintiffs father was in possession of the suit premises. Similarly, the defendant No. 1 has stated that his father was in possession of the suit premises since 1948. In paragraph 6 of his cross-examination it has further been admitted that in the year 1948 he was aged about 14 years and was not aware about the negotiations which his father had with regard to the suit house. The defendants in the written statement have failed to prove the manner in which they came in possession of suit house and as to when possession of defendants became adverse to the interest of the plaintiff.

The trial Court after appreciation of the evidence on record has held that the defendants have failed to prove that they have acquired the title by adverse possession. The lower appellate Court vide judgment and decree dated 30.1.1995 had held that in the earlier civil suit the defendants had denied the fact that his father was the owner of the suit house for want of knowledge. It has further been held by lower appellate Court that from the statements of defendant witness. No. 1 and defendant witness No. 2 it is not clear as to when the possession of the defendants became adverse to the interest of the plaintiff. It has also been held by the lower appellate Court that it is not a case of the defendants that they forcibly took possession of the suit house. It was further held that mere long possession does not amount to adverse possession. From oral and documentary evidence on record, by no stretch of imagination, findings recorded by the trial Court as well as lower appellate Court with regard to acquisition of title by adverse possession, can be either said to be perverse or based on no evidence. The Supreme Court had held that plea of acquisition of title by adverse possession is a mixed question of law and fact; The aforesaid finding of fact is based on appreciation of evidence on record which is concurrent in nature. The plea of adverse possession raised by the appellant has not rejected merely on the ground that there is no denial of title in the earlier suit. From perusal of the judgment and decree of the trial Court as well as lower appellate Court it is apparent that courts below have not rejected the plea of adverse possession raised by the appellant merely on the ground that there is no denial of title on the earlier suit between the parties. Accordingly, the substantial question of law is'' answered in the negative and against the appellant. In the result, the appeal fails and is hereby dismissed with costs.