Gouse Mohaddeen and Others vs Gadhe Hanumanthappa and Others

A.V. Chandrashekara, J.—The first defendant of an original suit in O.S. 11/86 which was pending on the file of the then court of Munsiff of Chitradurga has challenged the divergent judgment passed against him in R.A. 67/94 by the Senior Civil Judge, Chitradurga District. Several grounds are urged in the present appeal.

During the pendency of the second appeal, Ghouse Mohadden died and his legal heirs have been brought on record. The 1st respondent had chosen to file a suit for the relief of declaration of title and possession in respect of a shed put up on site No. 197, Khatha No. 991 measuring 30 ft. x 45 ft. situated in Chitradurga city. The said suit was contested by this appellant as 1st defendant denying all averments. The 2nd respondent herein-Vishwanath Murthy was the 3rd defendant in the said suit. The legal heirs of Gurusiddappa (2nd defendant in the suit) had come on record in the trial court and they are not made parties in this appeal since they did not contest the case of the plaintiff. Parties will be referred to as plaintiff and defendants 1 to 3 as per their ranking before the trial court. Suit was dismissed after contest and the appeal filed by the plaintiff under Section 96 , C.P.C. is allowed and consequently suit is decreed.

The facts leading to the filing of the present appeal are as follows:

"a) Plaintiff-Gadhe Hanumanthappa claims to be the absolute owner of the suit schedule property. According to him, the property was granted to the 2nd defendant-Gurusiddappa (deceased), by president of the then Town Municipality Council (TMC), Chitradurga, on 17.4.1963 vide sale certificate No. 17/63-64 and he was stated to be in possession of the said site. He sold the same in favour of the 3rd defendant-Vishwanath Murthy vide registered sale deed dated 4.3.1971.

b) The 3rd defendant had intended to put up a residential building on the schedule site, and therefore, he had put up a small shed in the year 1975 for storing building materials. He could not start the work because of financial difficulties and hence the shed was empty. At that point of time, according to the plaintiff, defendants 1 and 3 were in good terms and the 1st defendant and his mother approached the 3rd defendant and requested him to permit them to reside in the said shed as they were very poor and were not in a position to pay rent. The 3rd defendant took pity on them and permitted the 1st defendant to reside on the condition that they should vacate the same on demand. Therefore possession of the shed by the 1st defendant was in the nature of permissive possession and he has no manner of right, title and interest over the suit property.

c) The 3rd defendant is stated to have sold the schedule property in favour of the plaintiff through a registered sale deed dated 17.12.1984 and at that point of time, the 3rd defendant told the 1st defendant to vacate and hand over possession of the shed in which he was living with his permission. The 1st defendant is stated to have readily agreed and asked for a week''s time. Therefore the plaintiff and 3rd defendant agreed to his request on humanitarian ground and even after one week, he did not vacate the schedule shed and asserted his own title to the schedule property. Then the plaintiff obtained encumbrance certificate for the schedule property for 13 years from 1.4.1972 to 19.11.1984 and found that the property in question had not been encumbered. He even enquired with the TMC authorities of Chitradurga about the property being granted to the 2nd defendant. But he came to know that the 1st defendant''s name had been incorporated as Khatedar in respect of the schedule property and the municipal authorities asked the plaintiff and 1st defendant to get their dispute resolved in the civil court.

d) As such, the plaintiff got issued a legal notice calling upon the 1st defendant to vacate and hand over vacant possession of the schedule shed. In spite of receipt of the same, the 1st defendant did not hand over possession and as such, he had to file the suit for declaration of title and possession.

e) The 1st defendant has specifically denied grant of the land in question by the TMC, Chitradurga, on 17.4.1963 to the 2nd defendant and 2nd defendant alienating the same to the 3rd defendant and 3rd defendant putting up a shed to store construction materials. The averment that the 3rd defendant sold the said property to the plaintiff is also specifically denied and plaintiff is called upon to strictly prove the contents of the plaint. According to the 1st defendant, the suit property belonged to the Municipality and was lying vacant in the year 1951-52 and since the 1st defendant had no house to live in, he put up a small hut and started to reside with his family members. It is further averred that the Municipality did not disturb his enjoyment and possession at any point of time. Later on he converted the same into a pucca house.

f) In November 1975, one Gurusiddappa told him that the site had been granted to him by the Municipality and thus, he was the absolute owner of the property. The said Gurusiddappa wanted to sell the property to him (1st defendant) since he i.e. 1st defendant was already residing there. The 1st defendant is stated to have purchased the schedule property and on verification of the records as regards title of the intending seller and being satisfied with the same, purchased the schedule property for Rs. 1,000/- vide registered sale deed dated 12.12.1975 and therefore, possession of the schedule property by the 1st defendant was recognized by the vendor-Gurusiddappa and title was conveyed through the registered sale deed.

g) He has averred that he has perfected his title over the schedule property by way of adverse possession in view of being in possession for over 12 years openly to the knowledge and adversely to the interest of the plaintiff and his predecessors.

h) Immediately after purchasing the property, the 1st defendant applied for change of khatha to the Municipality and hence he became the Khathedar. Sale deeds referred to and relied on by the plaintiff are sham and bogus and the alleged vendors were not the real vendors at any point of time and the Municipality authorities had rejected the application of the plaintiff for change of khatha. On 19.10.1985, plaintiff and members of his family trespassed into the schedule property and pelted stones and caused damage and police had sent word to the plaintiff not to resort to such illegal acts. The suit of the plaintiff is stated to be collusive and frivolous. Hence he had prayed for dismissal of the suit.

i) The 2nd defendant chose to file written statement clearly averring that the schedule property was sold vide No. 17/1963-64 and he sold the schedule property in favour of the 3rd defendant on 4.3.1971 and he is not aware of further transactions between the 3rd defendant and the plaintiff. According to him, the 1st defendant was never in possession of the schedule property till he sold the site in favour of the 3rd defendant and he had no objection for decreeing the suit.

j) The 3rd defendant has filed detailed written statement with a clear averment that the schedule property was purchased by him from the 2nd defendant and he had put up a shed for storing construction materials in order to put up a regular residential building. According to him, construction work could not be taken up due to financial difficulties and hence he sold the schedule property to the plaintiff on 17.12.1984 and that the 1st defendant had agreed to vacate the shed in favour of the plaintiff. It is contended that the 1st defendant does not have any manner of right, title and interest over the property and he had therefore requested the court to dismiss the suit.

k) On the basis of the above pleadings, the following issues were framed by the trial court:

1) Does the plaintiff prove that the suit site had been granted in favour of the 2nd defendant-Gurusiddappa, S/o. Kallappa?

2) Does the plaintiff prove that the 2nd defendant was put in possession of the suit site I pursuance of the sale certificate dated 17.4.1963 and bearing No. 17/63-64?

3) Did the 3rd defendant acquire title over the suit site from the 2nd defendant under the registered sale deed dated 4.3.1971?

4) Does the plaintiff prove that the structure on the suit property was put up by the 3rd defendant in 1975?

5) Does the plaintiff prove that the 1st defendant was inducted as a licensee into the suit property by the 3rd defendant as pleaded in para 2 of the plaint?

6) Does the 1st defendant prove that he constructed the house on the suit property in the year 1951-52?

7) Does 1st defendant prove that he became owner of suit property by virtue of sale deed dated 12.12.1975 executed by Gurusiddappa, S/o. Kalappa?

8) Does the 1st defendant prove that he has perfected his title over the suit property by adverse possession?

9) Is the suit barred by time?

10) Is the plaintiff entitled for declaration of title?

11) Is the plaintiff entitled for delivery of possession of the suit property?

12) Is the plaintiff entitled for mesne profits?

13) What decree or order?"

The plaintiff himself is examined as P.W. 1 and on his behalf, 4 witnesses have been examined and 13 documents have been got marked. Deceased 1st defendant is examined as D.W. 1 and 3 witnesses have been examined on his behalf and apart from that, 110 documents have been got marked. Ultimately the trial court has answered issue Nos. 1, 3, 6 and 8 in the affirmative and the remaining issues in the negative. Consequently the suit came to be dismissed vide considered judgment dated 9.6.1994, as against which a regular appeal came to be filed under Section 96 , C.P.C. before the first appellate court, i.e. Court of Senior Civil Judge, Chitradurga. After hearing arguments of the learned counsel for the parties and perusing the lower court records, the learned judge of the first appellate court has allowed the appeal by framing the following points for consideration as found in paragraph 9 of the judgment:

"1) Whether the plaintiff proves the acquisition and title over the suit property from defendant-3 as pleaded?

2) Whether he further proves defendant-1 was inducted as licensee by defendant-3?

3) Whether the plaintiff is entitled for possession of the suit property?

4) Whether the plaintiff is entitled for mesne profits?

5) Whether defendant-1 proves title over the suit schedule property by adverse possession?

6) Whether the judgment and decree of the trial court requires any interference?

7) What order?"

Point Nos. 1 to 4 and 6 have been answered in the affirmative and point No. 5 is answered in the negative. It is this divergent judgment which is called in question in this appeal on various grounds as set out in the appeal memo.

Learned counsel for the appellant has vehemently argued that the plaintiff has thoroughly failed to prove his title to the schedule site and has also failed to prove that the predecessors in question had become the absolute owners. It is argued that the learned judge of the first appellate court has unnecessarily answered point No. 5 in the negative without noticing that the plaintiff had not acquired any title over the suit schedule property. It is argued that even if the plaintiff was issued sale certificate by the Municipality, it had not been acted upon at any point of time and it was only a nominal document and no title had been passed in his favour. It is his argument that overwhelming evidence is placed on record to demonstrate that even before the sale was executed by the 2nd defendant in favour of the 3rd defendant, the 1st defendant was already in possession of the suit property having put up a small house and had obtained electricity connection many years ago. The judgment of the first appellate court is stated to be opposed to law, facts and probabilities and that the first appellate court has not re-assessed the oral and documentary evidence in right perspective.

Heard the learned counsel for the plaintiff-respondent at length.

Following are the substantial questions of law framed by this court on 28.6.2004:

"1) Whether the first appellate court is justified in reversing the judgment and decree of the trial court and in granting the decree, placing reliance upon Exs. P-1 and P-3 while answering issue Nos. (5) and (6)?

2) Whether the first appellate court is further justified in holding that the first defendant has not perfected title by adverse possession?"

REASONS

Point Nos. (1) and (2): Both the substantial questions of law framed on 28.6.2004 are inter-related and hence they are taken up together for common discussion.

The learned judge of the trial court has answered point No. (1) relating to grant made in favour of the 2nd defendant-Gurusiddappa in the affirmative, holding that City Municipal Council granted the suit schedule site to Gurusiddappa, son of Kallappa and has further held, while giving his finding on point No. (3), that the 2nd defendant had acquired title over the property on 4.3.1971 through a registered sale deed executed in his favour. At the same time, issue No. (7) is answered in the negative holding that the 1st defendant has failed to prove that he is the absolute owner of the suit property by virtue of the sale deed dated 12.12.1975 by one Gurusiddappa, son of Kallappa. These findings on point Nos. (1), (3) and (7) have been taken into consideration by the first appellate court to hold that the 1st defendant has failed to prove perfection of title by way of adverse possession in respect of the suit schedule property.

What is argued before this court by the learned counsel for the respondent-plaintiff is that in order to prove the plea of adverse possession, the party taking up such plea must necessarily admit title of the opposite side and then only he can take the plea of adverse possession. In the present case, the 1st defendant has not admitted the title of the plaintiff or his predecessor, but has set up title in himself on the basis of the sale deed dated 12.12.1975 executed by Gurusiddappa in his favour. As already discussed, issue No. (7) is answered in the negative and therefore, it is adverse possession to the 1st defendant.

In the present case, we have to see whether the 3rd defendant had really put up a shed as averred by him in the written statement and that he had allowed the 1st defendant to reside therein and therefore, possession so held by the 1st defendant was ''permissive possession.'' It is the 2nd defendant who has sailed with the plaintiff in regard to the sale certificate issued in his favour vide No. 17/1963-64 by the City Municipality, Chitradurga, in his favour on 4.3.1971. He or his legal heirs have not chosen to enter the witness box. He has averred that he is not aware of the transactions that took place after 4.3.1971.

Per contra, the 3rd defendant who is stated to have executed regular sale deed in favour of the plaintiff on 17.12.1984 has averred that he intended to put up a regular residential building on the schedule vacant site and therefore, he had put up a shed to store building materials; but due to financial difficulties, he could not construct the house. He is stated to have delivered possession of the schedule property to the 1st defendant since he had requested to permit him to reside in the shed along with his family members because of his financial difficulties. He is stated to have demanded the 1st defendant, at the time of executing sale deed in favour of the plaintiff, to vacate and hand over vacant possession to the plaintiff and he (1st defendant) had sought a week''s time. Whether the 3rd defendant has really been able to substantiate the stand taken by him in the written statement, is to be looked into.

The 3rd defendant who is examined as PW-2 has taken a V turn in his very examination-in-chief. He has deposed that he handed over the schedule shed put up on the site to the 1st defendant since the 1st defendant had agreed to pay rent. He is stated to have sold the schedule site in favour of the plaintiff due to financial difficulties and the said document is marked as Ex. P-3. He has further deposed in page 2 of his examination-in-chief that he handed over the schedule shed to the plaintiff after the same was sold. It is better to see the contents of Ex. P3-registered sale deed executed by the 3rd defendant in favour of the plaintiff on 17.12.1984.

Ex. P-3 is executed for a total consideration of Ex. 10,000/-. There is a specific reference about the schedule site and shed being handed over to him (plaintiff) on the said day. The contents of Ex. P-3 regarding possession being handed over is in glaring contradiction of his assertion found in the very examination-in-chief. PW-3 has been cross-examined at length in this regard. He has deposed that he got the shed put up with the help of a contractor-Puttanna and spent Rs. 600/-, and no agreement had been entered into between himself and the said contractor in that regard. He had not got issued any notice calling upon the 1st defendant to hand over the vacant possession of the site to the plaintiff after executing the sale deed-Ex. P3. He has specifically deposed that he had instructed his counsel to make an averment that the property in question was handed over to the 1st defendant on rental basis; but the same is not to be found in his written statement.

Plaintiffs case is that the 1st defendant is in permissive possession of the schedule property since the 3rd defendant had permitted him to occupy the shed so as to use it as residence along with his family members. Whereas PW-2 has specifically admitted in his cross-examination that there are fruit bearing two coconut trees aged 20 years in the schedule property and one ''nelli'' and mango tree. To a specific question put to him as to whether the 1st defendant had electricity connection to the house, PW-2 has answered that he might have obtained electricity connection. He has feigned ignorance as to whether the house put up therein had electricity connection. He has deposed that the schedule property was outside the city and people were not going there. Suffice to state that the evidence of PW-2 does not inspire confidence in the mind of the court that the shed had been put up by him to stock building materials and that it was handed over to the 1st defendant on ''permission'' basis to use it as residence for himself and his family members.

PW-1 has deposed that by the time the sale deed was executed in his favour by the 3rd defendant, the 1st defendant was already residing in the shed and he had assured him of vacating the same within 8-10 days. He has been cross-examined at length on various aspects. The plaintiff has already put up a house at No. 125 in Chitradurga city about 15 years prior to his deposition; since his sister and uncle threw him out of the house, he had to put up a house. He has admitted in his cross-examination on 8.3.1993 that the schedule house is Mangalore-tiled house and towards the south is road; towards east is the house of Shadakshariah; towards west is vacant site and on the north is conservancy. He has further admitted that the 1st defendant has taken electricity supply to the suit house and that there are two fruit-yielding coconut trees. There is also one nelli tree and one mango tree.

If 20 years is reckoned prior to the deposition of PW-2-Vishwanath Murthy, then the coconut trees, mango and nelli were planted somewhere in 1973, long prior to the execution of sale deed by PW-2 in favour of the plaintiff. On the other hand, D.W. -1 has deposed that he has been living in the house put up in the schedule property from 1950-51 and that it originally belonged to the Town Municipality. It is his case that he had no house of his own and on requesting the authorities to provide him some place, they asked him to put up a house in the vacant place and accordingly he put up a hut. According to him, in the year 1951, there were no houses in the vicinity and the hut put up by him was removed and a Mangalore-tiled house has been put up by him. He has asserted that he had planted the coconut trees and they are aged about 20-22 years and mango tree also exists. It is his case that he has put a compound around the schedule site. He has produced all documents in regard to electricity connection obtained to the house and payment of charges at regular intervals. They have been marked as Exs. D86 to D107.

Ex. D24 is the electricity paid receipt dated 4.2.1975. Ex. D36 is another electricity paid receipt dated 4.4.1977 and Ex. D38 is also another receipt. Demand notices issued for paying electricity consumption charges are also produced and Exs. D46 and D47 are receipts dated 21.2.1979 and 23.3.1979. Exs. D52 to D55 are electricity paid receipts of the year 1976 pertaining to different months. Thus the documents overwhelmingly disprove the theory of the 3rd defendant that he had put up a shed to store materials and had handed over to the 1st defendant on ''permission'' basis to be used as residence. On the other hand, these documents coupled with the endorsements issued by the City Municipality disclose that he is the Khatedar of the property in question. The khatha had been changed in favour of the 1st defendant long prior to the execution of Ex. P-3 in favour of the plaintiff.

Ex. D15 is the extract of list of buildings liable to taxation for the year 1975-76 and the name of Ghouse Mohaddeen is found after bracketing the name of Gurusiddappa-school teacher from whom he is stated to have purchased the property. Apart from this, his name is found in the khatha extract of the property in question issued on 5.1.1990 by the Municipality Council for the year 1988-89. Ex. D17 is another khatha extract of the property in question issued by the Municipality for the year 1976-77. Ex. D18 is another khatha extract which discloses the name of the 1st defendant as Khatedar for the year 1985-86. The 1st defendant has produced innumerable receipts for having paid tax to the Municipality right from 1973 to 1985 and they are borne out by receipts marked as Exs. D2 to D13.

When the 1st defendant has asserted his own title to the property in question, that too, after getting his name entered as Khatedar, the 3rd defendant who is stated to have purchased the property in the year 1971 from the 2nd defendant, did not take any steps to get his name incorporated. Apart from this, he has not spoken anything about the year in which he put up the shed. The 1st defendant is examined as D.W. -1. He has reiterated the contents of the written statement filed on his behalf, I his examination-in-chief. It is his assertion that himself and his family members are residing in the schedule house. It is his case that in the year 1951 the property in question was occupied by them and a shed was put up and later on it was converted into a pucca Mangalore-tiled house. The fact that the 1st defendant and his family members have been residing in a pucca Mangalore-tiled house having electricity and water connection is not in dispute.

Documentary evidence discloses that electricity connection was obtained way back in 1975, long prior to the plaintiff purchasing the suit site from the 3rd defendant. Though there is a specific reference about the existence of a hut in Ex. P-3, the same is falsified in the light of existence of a pucca Mangalore-tiled house long prior to that. It is his case that the Municipality allotted site No. 262 in favour of his father-Hamja Hussain and at present, his mother is the khathedar of the said site.

D.W. -2, Khasim Sab, aged about 75 years is a resident of Chitradurga city. He has spoken about the house occupied by the 1st defendant and his family members. It is his case that the said house is in existence from 30-40 years and there are two fruit-yielding coconut trees and their approximate age is 30 years. His evidence was recorded on 21.3.1994 and if 30 years is reckoned back, one can infer that the trees were planted somewhere in the year 1964-65. He is the attestor to the sale deed executed by Gurusiddappa in favour of the 1st defendant. He knew both the plaintiff and the 1st defendant and his family members. Of course he has feigned ignorance as to whether the 1st defendant had obtained licence while putting up the residential house. Anyhow his evidence discloses there is a pucca Mangalore-tiled house having electricity and two coconut trees.

Similarly Gurappa-DW3 is a retired teacher known both to the plaintiff and the 1st defendant. He has spoken about the existence of a pucca Mangalore-tiled house in the schedule site and put up by Hamja Hussain and of late, several houses having come up in the vicinity of the schedule site. He has spoken about the existence of two fruit-yielding coconut trees and one mango tree also. He has given the schedule of the property in question. Nothing is elicited from his mouth so as to discredit his version about the house being put up by the 1st defendant''s father and the 1st defendant and his family members residing there.

D.W. 4-K. Channabasappa is a retired Government official and he knows the plaintiff as well as the 1st defendant. He has also spoken about the existence of a pucca Mangalore-tiled house from 1952 and has deposed about the approximate age of the two fruit yielding coconut trees as 30 years. He has spoken about the electricity and water connection obtained by the 1st defendant. The suggestion that the deceased 2nd defendant had planted coconut trees has been specifically denied. A combined reading of the evidence of D.W. s-1 to 4 would disclose about the existence of an old pucca Mangalore-tiled house on the schedule property with two fruit yielding coconut trees and one mango tree.

These facts have been taken into consideration by the trial court while evaluating the evidence. The first appellate court has mainly concentrated about the proof of Ex. P1-sale certificate issued by the Municipality in favour of the 2nd defendant, proof of the sale deed executed by the 2nd defendant in favour of the 3rd defendant and proof of the sale deed executed by the 3rd defendant in favour of the plaintiff. Mere proof of these documents would be insufficient. The contents of these documents glaringly contradict the reality that prevailed at the relevant point of time. It is ununderstandable as to how the 3rd defendant could mention the existence of a shed in the schedule property while executing the sale deed in favour of the plaintiff, though a pucca Mangalore-tiled house existed at that point of time and also the existence of two coconut trees and one mango tree. Even before execution of the sale deed by the 2nd defendant in favour of the 3rd defendant, there was already a pucca Mangalore-tiled house and this fact is silent in the sale deed executed by the 2nd defendant in favour of the 3rd defendant. We will have to see whether the plaintiff has effectively discharged the burden cast upon him in regard to the existence of realities in the schedule property.

The first appellate court has come to the conclusion that the 1st defendant has failed to prove the plea of adverse possession insofar as the plaintiff is concerned. The plea of adverse possession is taken not only against the plaintiff but also against his predecessors in title. The trial court has come to the conclusion that neither the 2nd defendant nor the 3rd defendant have exercised their right of ownership except by executing the sale deed. Those sale deeds, even after being proved, have become non-est in the eye of law. The version of the 3rd defendant, in his examination-in-chief and cross-examination, contradicts the version taken in the written statement.

While upturning a considered judgment of the trial court, the first appellate court is expected re-assess the whole evidence and assign its own reasons indicating as to where the trial court has gone wrong, as per the principles reiterated by the Hon''ble apex court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . The inability of the 1st defendant in proving Ex. D1 does not strengthen the case of the plaintiff. The plaintiff has to stand or fall on the strength or weakness of his own case, and cannot rely on the weaknesses, if any, of the defendant''s case. The 1st defendant has been asserting his title over the property in question and this is evident from the oral and documentary evidence placed on record. The learned judge of the first appellate court has not taken into consideration the version of the 3rd defendant found in his examination-in-chief and cross-examination vis-�-vis the stand taken in the written statement. In paragraph 39 of the impugned judgment, the learned judge of the appellate court has relied on ''permissive possession'' of the 1st defendant and has come of the conclusion that the 1st defendant has failed to adduce any evidence in regard to disproof of ''permissive possession.'' The learned judge has ignored the version of the 3rd defendant and hence, the said observation is wholly incorrect.

From the evidence placed on record, it is evident that there was already a pucca Mangalore-tiled house by the time the 3rd defendant sold the house and that there was no shed put up by him, as indicated in Ex. P-3.

The 1st defendant has taken up the plea of adverse possession on the ground of continuous possession for more than 12 years openly to the knowledge of and adversely to the interest of the plaintiff as well as the 2nd and 3rd defendant. Hence the plea of adverse possession could not have been so easily rejected by the first appellate court. What is observed by the learned judge is that the defendant has not taken the plea of adverse possession as an alternative plea and therefore the plea is diametrically opposite to the plea of acquisition of ownership on the basis of Ex. D1-sale deed executed by Gurusisddappa. The totality of the circumstances has to be considered in the present case.

Thus the totality of the stand taken by the 1st defendant will have to be considered in the light of inconsistencies found in the case of the plaintiff as well as the 3rd defendant. Therefore, the first appellate court, being the final court of facts, has not re-assessed the entire evidence in right perspective. It has adopted wrong approach to the real state of affairs. Hence decreeing the suit placing reliance on Exs. P1 and P2, is not justified. Similarly the first appellate court is not justified in holding that the 1st defendant has failed to prove the plea of adverse possession.

A defendant can take inconsistent pleas, whereas the plaintiff cannot take inconsistent pleas, but can take an alternative plea. Just because the defendant has taken the plea of adverse possession without using the words ''alternative plea,'' it cannot be said that he is debarred from taking up the plea and proving the same. The vendor of the plaintiff did not take any steps to get his name incorporated in the property register maintained by the Municipality for quite a long time and the plaintiff only chose to make an attempt to get his name incorporated. As already discussed, the plea of adverse possession has been considered by the trial court in the light of continuous possession with the 1st defendant and the same being openly to the knowledge of not only the plaintiff but also his predecessors.

Accordingly the appeal will have to be allowed and the judgment of the first appellate court has to be set aside. Consequently the judgment of the trial court will have to be restored.

In the result, the following order is passed:

The appeal filed under Section 100 , C.P.C. is allowed. The judgment dated 10.10.2002 passed by the first appellate court in R.A. 67/94 is set aside. Consequently the judgment of the trial court dated 9.6.1994 passed in O.S. 11/86 is restored. Parties to bear their own costs.