Hamsa Haji vs Rabia Umma

R. Bhaskaran, J.—The defendant in a suit for recovery of possession and injunction is the appellant in the Second Appeal. The plaint schedule property is having an extent of 1 1/4 cents in R.S. 36/6 of Madayi amsom. The plaintiff''s case is the she obtained the property as per Ext. A2 assignment deed from Kuttiyassantakath Abdulla Haji. In Ext. A2 plaintiff has obtained 21 cents in R.S 36/3 of Madayi amson. It is stated in the plaint that on the eastern portion of the plaint schedule property an extent of 12 x 12 carpenter''s koles was in possession of Kuttialit and two others as per document dated 3.10.1933. That lant was acquired by Government for construcition of a road. Subsequently the defendant has obtained a document and when he made preparations for constructing RCC pillars the plaint schedule property was got measured and it was found that the plot where the defendant was preparing for construction of RCC building belongs to the plaintiff. Thereafter the defendant wasn requested to remove the shop building and hand over possession. Since he refused of do so the suit was filed.

The defendant field written statement denying the title of the plaintiff. It was stated that an extent of 12 x 12 koles was obtained by the defendant''s predecessor as early as in 1933 and a shop building was constructed therein. The building is in the possession of the defendanty by transfer and plaintiff has no right over the said building. The construcition of the building was almost over in the place wherre the old building was situated. Defendant also pleaded the even if the plaintiff has title to the property the same is lost by adverse possession and limitation. On these pleadings the trial court framed various issues including the issue on the title of the plaintiff and also the issue regarding adverse possession and limitation.

On the question of title the trial court found that though plaintiff has obtained rights over 21 cents in R.S. 36/3 there is no conclusive evidence to show that the said 21 cents is inclusive of the plaint schedule property. The said 21 cents of the plaintiff is not specifically shown in Ext. C2 plan. Since the document produced by the defendant related to R.S. 36/1 and since the Advocated Commissioner has reported that property on the three sides of the plaint schedule property is in the possession of the plaintiff the trail court came to the conclusion that plaintiff has got title ot the sisputed property also.

On the question of adverse possession the trail court found that the defendant has perfected title by adverse possession of the building for more than 30 years though she was residing very near to the building. The plaintiff has no case that defendant and his predecessors were in permissie possession under the plaintiff or that he has trespassed into the plaint schedule property immediatley piror ot ht filing of the suit.

The plaintiff field an appeal before the lower appellate court. The lower appellate court has found title with the plaintiff on the same reasoning as that of the trial court. The lower appellate court however reversed the judgment and decree of the trail court with regard to the question of adverse possession by stating that the defendant has not discharged the burden of proving adverse possession.

In this Second Appeal the following questions of law have been formulated on which notice was issued by this Court.

i) Whether in the absence of a proper identification of the property of the plaintiff and the plan of the properties of the plaintiff and defendant, the court below is right in holding that the plaintiff has got title to the plaint schedule property:

ii) In a suit of recovery of the plaint schedule property on the strenght of title, is not the burden of proving the title of the property on the plaintiff:

iii) Whether the Court below committed illegality in not considering the material evidence on record and the contentio of the defendant while allowing the appeal:

iv) Is the Court below justified in not considering the question whether the plaintiff has proved the title of the plaintiff over the plaint schedule property and is the court justified in adopting the finding of the trial court without investigating the correctness of the said finding of the trial court:

v) Is it not necessary to frame an issue whether the defendant has title and possession over the plaint schedule property and consider the same in the suit:

vi) Whether the court below committed illegality in not considering the question whether the commissioner has identified the properties of the plaintiff and defendant and marked in the plan correctly:

vii) Whether the Court below has commited illegality in not holding that the rigth of the plaintiff is barred by adverse possession and limitation:

viii) Whther the court below is justified in not ordering the value of improvements to the defendant in the case of decreeing the suit:

ix) Whether the plaintiff is entitled to injunction when the plaintiff has acquiesced in the possession of the defendant over the plaint schedule porperty:

It is argued by the counsel of appellant that the lower appellate court has ignored material evidence in the form of admission by the plaintiff while upsetting the finding of the trial court. Though various qeustions of law are formulated in the second appeal the main questions of law pressed at the time of hearing are question Nos. 1, 2, 3 and 7. Both counsel were heard on these questions elaborately. Learned counsel fo appellant submitted that when the trial court has found that therer is no conclusiv evidence to show that the 21 cents in R.S. 36/3 obtained by the plaintiff under Ext. A2 includes the disputed property having an extent of 1 1/4 cents the trial court should have dismissed the suit since the plaintiff had failed to establish title with respect ot the disputed property. As the suit was dismissed by the trial court the defendant had no necessity to file any appeal with respect ot the finding on title. Even otherwise the defendant is entitled to urge in the appeal field by the plaintiff that the finding regarding title by the trial court is incorrect under Order 41 Rule 22 and Rule 33 Code of Civil Procedure. Learned counsel also relied on the decision reported in Dhangir v. Madan Mohan, 1988 Sc 54. The lower appellate court also considered the question of title and it found that the plaintiff has got title on verbatim reproduction of the reasoning of the trial court. The main reasoning for finding that the plaintiff has title is that the document produced by the defendant is in respect of R.S. 36/1 and the plaint schedule property is situated in R.S. 36/3 According to the counsel for appellant the survey number in the document of title of the defendant is admittedly a mistake and even the plaintiff has admitted in evidence that the property for which the defendant executed the lease deed is not in existence and that is in R.S. 36/3 though the survey number is mentioned as 36/1. It is also admitted that the property mentioned in R.S 36/1 is noe furlong away. Therefore the case of the plaintiff is also the property of the defendant is adjacent to the plaintiff''s property and that was acquired by the Government. Since the admission of the plaintiff si the R.S 36/1 is one furllong away and not adjacent to the plaint property the survey number shown in the document can only be a mistake. In view of the above admission it was incumbent upon the trial court as well as the lowre appellate court to find out the exact 21 exact 21 cents covered by Ext. A2 and see whether the plaintiff has established title over the property. The weakness in the case of the defendant will not enable the plaintiff to get a decree. In the absence of a finding on the basis of evidence the courts below were not justified in finding title whith the plaintiff in the disputed property.

The finding on the question of adverse possessnion and limitatio by the lower appellate court cannot also be sustained for the reason that the possession by the defendant and his predecessor in interest of the builing for over 30 years was not in dispute. The plaintiff has no case that the defendant has been in possession under the plaintiff as a licensee or lessee or that he has trespassed into the property before the filing of the suit. The plaintiff has clearly admitted in court that the plaintiff has been out of possession of the building for 30 years prior to the filing of the suit. In such circumstance to constitute adverse possession it is sufficient that the possession mut be open without any attempt of concealment. It is necessary that the possession, must be so effective as to bring it to the specific knowledge of the owner. Since the plaint schedule property consists of a shop building and the building has been in existence for 30 years as admitted by the plaintiff and the plaintiff was not in possession of the property even if plaintiff had title it should be deemed to have been lost by adverse possession and limitation as the plaintiff has no case that plaintiff or her predecessor in interest at any time entrusted the building to the defendant or his predecessor in interest. The possession of the defendant and his predecessors in interest for the last 30 years was not under the plaintiff and they were in possession on independent right. Thereford it is a real case where the title if any of the plaintiff is lost by adverse possession and limitation. In the decision reported in AIR 1981 707 (SC) , the Supreme court has held as follows:

"All that the law requires is that possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may by insisted on, where an ouster of title is pleaded but that is not the case here"".

Learned counsel for sespondent streneously contended that the defendant has not established adverse possessio and limitatio and relied on the decision reported in Gaya Parshad Dikshit Vs. Dr. Nirmal Chander and Another, There the question considered was whether the possession of a licensee after termination of licence canbe said to be adverse possession to prescribe title against the owner of the property. It is clear from the reading of the judgment that licensee admitted the title of the owner of the property and it was found that after admitting title even after the period of licence is over he can not claim adverse possession unless he asserts hostile title. The case on hadn is entirley different and the facts of the case of the Supreme Court are not applicable to the facts of the present case. Therefore the dicision of the Supreme Court relied on by respondent will not help the plaintiff.

In view of the above finding I find that the questions of law raised by the appleant as question Nos. 1, 2, 3 and 7 do arise for considerationn and are substantial questions of law to warrant interference in Second Appeal. Second Appeal is allowed and the judgment and decree of the lower appellate court are set aside and the suit is dismissed. There will be no order as to costs in the Second Appeal