Kailashnarayan Bhavarlal and Others vs Keshav Singh Harinarayan and Another

M.W. Deo, J.

This is plaintiffs'' second appeal who having succeeded in the trial Court, were nonsuited by the First Appellate Court.

It is not in dispute that Nathusing was the owner of property situated in village Kanad. Ex.P-1 is the certified copy of a registered will dated 27-2-1933 executed by Nathusingh under which Nathusingh bequeathed some property to Munnalal and one house to Daryaosingh who was son from Mainabai, mistress of Nathusingh. To the south-west of the house bequeathed to Daryaosingh, is a Khandhar which is the subject-matter of this litigation. In this second appeal learned counsel for the respondents did not dispute that it is this Khandhar which is adjacent to the house of Daryaosingh in the direction of south-west and is mentioned in the copy of the will which indeed could not be disputed in view of the averment and factual foundation in the last two lines of clause 5 of para 3 of the certified copy. As such there is no dispute about either the description or identity of this Khandhar. It may be noted here that the present appellants are the legal representatives of Daryao Singh. It may also be noted that Nathusingh died in the year 1936.

The case of the appellants in brief was that the aforesaid will was executed by Nathusingh and as such they are the owners of the Khandhar under the will of which the certified copy is Ex.P-1. Munnalal, the respondent (L.R. of deceased respondent No. 1 Keshavsingh) disputed the title of the appellants to the Khandhar as he wanted to raise walls on the Khandhar and put a roof on it and, therefore, applied to the Gram Panchayat in that connection. Munnalal thus dispossessed the appellants and refused to restore the possession despite notice dated 26-5-1971. Hence the appellants filed a suit claiming to be owners of the property and consequent possession and mesne profits in respect of the Khandhar.

In this second appeal, the appellants mainly raised four questions. First that the will has been proved. Inasmuch as the original will has been lost, Ex.P-1 could be proved as certified copy of the will according to law. Secondly, it was argued that the appellants had proved ownership of the suit Khandhar under the will. It was thirdly contended that the claim of the appellants/ plaintiffs was not barred by limitation as it was not covered by Article 64 of the Indian Limitation Act, 1963 but was governed by Article 65. It was lastly contended that the respondent Munnalal was wrongly held by the lower appellate Court to have proved his adverse possession over the suit Khandhar resulting in extinguishing the title of the appellants and therefore, the suit was wrongly dismissed.

Coming to the first contention, the learned counsel for the respondents referred to Sections 65 and 66 of the Indian Evidence Act to say that the loss of original will having not been proved, no foundation was laid for adducing secondary evidence of the will and that notice to adduce secondary evidence was not given as required by Section 66 ibid.

The point was adequately met by learned counsel for the appellants by referring to the statement of the plaintiff in his examination-in-chief where he categorically stated that the original will was with the respondent and that its copy is Ex.P-1. A subsequent sentence by the plaintiff to say that the Khandhar belongs to all the four brothers jointly but all the papers and will are with him could not, on a fair interpretation, mean that he meant the original will at this place. For, the plaintiff had categorically stated earlier that the original will was with the defendant and what he had was the copy Ex.P-1. The learned counsel further referred to the admission of Munnalal (DW1) who admitted in para 9 that Nathusingh had executed and bequeathed his property by a registered will dated 27-2-1933 and that the original will has been lost. He further admitted that Ex.P-1 is the certified copy of the same will. Let us complete the reference to admission of Munnalal by referring to his statement in para 5 where he admitted that the original will was with him but he could not say as to the length of time during which it was with him and when was it lost. In this state of admissions made by Munnalal, there is absolutely no room for a second conclusion on the question of custody of the original will. The only conclusion possible is that it was with Munnalal, the respondent, who had lost it and further Munnalal admits Ex. P-l as certified copy of the will filed by the appellants to be correct copy.

To enumerate the aspects regarding proof of the will by certified copy Ex.P-1 of the registered will by secondary evidence, (i) the appellants aver and pledge their oath that the will with admitted date and fact of registration was with respondent Munnalal; (ii) the appellants in para 9 of the plaint rely on the will; (iii) the defendant/respondent admitted the will in para 2 of the written-statement; (iv) the defendant never said that he was not in possession of the will or that it was with the plaintiffs ; (v) as stated above the statement of appellant Kailashnarain (PWl) that all papers and the will were with him could only be understood to refer to Ex.P-1; (vi) there is no doubt raised about the genuineness of the will and when it was not disputed by the defendant, there was no reason why the plaintiff would not produce it if they possessed it; (vii) admissions of Munnalal (DW1) respondent in para 3 leave no room for doubt that he admits Ex. P-l to be the correct registered certified copy of the will; and (viii) his statement in para 3 and further in para 5 that the original will was with him for some time and then was lost lay down the factual foundation required by Section 65 of the Evidence Act and further no notice to prove the certified copy, as argued by the respondents, remains necessary in view of Section 66, Proviso and clause (5) of Indian Evidence Act which run as under : -

"66. Rules as to notice to produce; secondary evidence of the contents of the documents referred to in Section 65. Clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case :

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks fit to dispense with it--

-x- -x- -x- -x- -x- -x- (5) When the adverse party or his agent has admitted the loss of the document."

Reference may also usefully be made to 1952 NLJ 92 : AIR 1952 Nag. 54 in this connection.

On a conspectus of the factual and legal position stated above, it is very clear that there is no merit in the contention raised by the respondents that Ex. P-l could not be proved as secondary evidence in the case as certified copy of the registered will. It is to be seen that this objection was not raised either in the trial Court or in the first appellate Court. As contemplatd u/s 66, proviso, the Courts below appear to have thought it fit to admit the secondary evidence in the facts and circumstances of the case without notice. In such a case, as observed in Treatise on Evidence by Munir, Vol. II, 1986 Edition Page 787, such objection cannot be allowed to be raised in second appeal.

It was further contended by the learned Counsel for the respondents that Ex .P-l is copy of the copy made in the register of documents and, therefore, is not admissible in evidence. He referred to the case of Guarsobai v. Gopibai, Second Appeal No. 79 of 1974; decided on 25-2-1988. The facts of this case were altogether different. In that case the powers of registration were execrised by Jagirdars in those days and what was sought to be proved was a copy given by one of the employees of the Jagirdar and such a copy was not held to be admissible as secondary evidence. The case in hand has no relevance with the law of registration as it stood in Gwalior State in the facts of Guarsobai (supra).

The present document in controversy Ex.P-1, is squarely covered by Section 57(5), Section 58(1) and Section 60 of the Indian Registration Act. The cumulative effect of all these sections is that if secondary evidence is permissible to be adduced (and as held above it was rightly and legally adduced under Sections 65 and 66, Evidence Act) a certified copy of the registered document shall constitute valid and legal evidence to prove the will. It may be noted here that when parties took absolutely no objection till the stage of second appeal and even in second appeal the respondent does not dispute that a will was executed by Nathusingh, that Ex. P-l is the correct copy of the will and that he also claims under the same will, then such hyper-technical objections, as to the mode of proof having not been technically followed in the trial Court, cannot be allowed to be raised for the first time. As observed in Deonarain v. Kamta and Ors. AIR 1937 Nag. 43 and Lalchand v. Balaram 1957 MPLJ 430 : 1957 JLJ 540, it is the duty of the court, in the interests of justice to fill-up such small gaps when the matters are very old. This Court will also not permit such hyper-technical objections to survive by filling up the gaps and will hold, in the facts of the present case as discussed above, that there is no doubt whatsoever above the fact that Ex.P-1 is the certified copy of the will acceptable to both the parties. That fairly and squarely answers the contention raised by the respondents to first submission of appellant that though respondents admit that the Khandhar in question was subject-matter of disposition of the will by Nathusingh, Ex.P-1 was not strictly proved as certified copy of that will.

That next question is whether Article 64 or Article 65 of the Indian Limitation Act, 1963 will govern the present case. A plain reading of Article 64 shows that it governs cases where the plaintiff does not base his suit on title but bases it merely on possession and dispossession. In other words Article 64 applies to a case where the plaintiff bases his claim for possession on the basis of possessory title without claiming any proprietary title. It is settled law that even if a person has obtained possession of the property illegally and if such person were to be dispossessed by third person, a suit for possession could lie on the basis of earlier illegal possession within 12 years from the date of dispossession. However, a case under Article 65 of the Limitation Act is very clearly understood to mean as a case where the plaintiff basically claims that property on the basis of his proprietary title and then in addition avers that he was in possession of the same and further complains that he has been dispossessed. Now this is not a case of possessory title as mentioned in Article 64 ibid. Consequently it follows that where a plaintiff bases his claim for possession on proprietary title, then additionally mentions that he was in its possession and complains of dispossession, the basis on which he claims possession from the adversary is not mere dispossession but is primarily his proprietary title. It is, therefore, in such latter cases that the time begins to run from the date, the possession of the defendant becomes adverse to the real owner - the plaintiff.

Both parties referred to Notes 2 and 3 under Article 65 of the Limitation Act by Chitale. As stated above, the distinction is clear and, therefore, in the facts of the present case the plaintiffs/appellants having averred that they are the owners of the suit Khandhar and, therefore, entitled to its possession from the respondents, their secondary averment of dispossession will not take the case out of the ambit of Article 65 ibid. There is, therefore, no room for doubt in the facts of the present case that it is governed by Article 65 and not Article 64 of the Indian Limitation Act, 1963 which was applicable to the case in hand on the settled principle that law applicable to a case is the law in force when the lis- commenced. The Act came into force in 1963 and the suit was filed on 16-6-1971.

The next point for consideration is whether the finding of the first appellate court that the respondents had proved adverse possession for more than 12 years is perverse? The factual aspect may be briefly stated first and then law of adverse possession be applied to it.

The subject-matter of possession in the case in hand is undisputedly a Khandhar. The evidence on the point is that there is a dilapidated kind of structure. It is situated at the back of the house of the appellants. It is adjacent with contiguity to the south-west of the house of the appellants. The house of respondent Munnalal is separated by a lane situated to the west of the Khandhar. There is public road to the south of the Khandhar. The acts of possession said to be performed to prove exclusive possession of the respondents were in the shape of using the premises for the purpose mainly of easing. The other less important purposes were said to be tying cattle or depositing cowdung and other allied activities. It is to be noted that there is an attempt by respondent to lead evidence that a latrine was constructed on the premises by the respondents. The mason has not been examined. One Bapu who was examined is a carpenter who would naturally have a very small role to play in construction of the latrine which did not have a regular door. Again Bapu was a debtor of the respondents. There is no reliable consistent evidence of regular user of the premises as latrine from the side of the respondents. There is evidence on record from both sides that being open premises in the nature of dilapidated state, all and sundry use such premises for easing in a village.

The second aspect of evidence was in the shape of an application Ex. D-1 said to have been given by Karansingh, respondent No. 2 who is brother of the appellants. It was contended on behalf of apellants that this document Ex.D.1 had not been proved and cannot be read in evidence at all. What are the reasons? It is said to be an application made by Karansingh in Gram Panchayat. The original was not brought to the court nor signatures of Karansingh proved. Khagwanrao (DW-2), Up-Sarpanch did not depose as to who was the author of the document nor the fact that it was handed over by Karansingh to the Gram Panchayat. Karansingh was not examined by the respondent to prove the document. The learned lower appellate court was certainly in error in putting the shoe on the wrong foot by holding that the appellants should have put Karansingh in the witness-box to disprove the document. The learned counsel for the appellants rightly contends that it is absurd and perverse to call upon a party to disprove a document which has not been proved. The document Ex. D.1 has not been proved. Its contents, therefore, could not be read in evidence. Even otherwise Ex. D.l is said to be of the year 1970 and could not prove prior adverse possession of 12 years.

We have now to consider the aforesaid state of evidence in view of the law of adverse possession. The jurisprudential concept of possession is made-up of two ingredients;(i) the corpus; and (ii) the animus. Corpus means the actual physical control over the property denoting physical possession. The animus denotes the intention and exercise of right to possess the property as owner to the exclusion of others. These two ingredients put together go to constitute legal possession. Learned counsel for the appellants cited a long list of cases starting from ILR Bom. 138 followed by Lala Asa Ram and Another Vs. Lala Ram Chander, to contend that mere user of certain premises for easing or throwing rubbish etc. over the land or using it for some ceremony or putting a thatched shed for running a school on open site or constructing shed for stocking logs of wood or constructing urinal providing bamboo fencing etc., are not such acts as would constitute exclusive possession over the property with the idea in the mind to possess such property as owner thereof and consequently will not constitute adverse possession as understood in law.

It was argued that the case of ILR Bom. 338 was considered in the case of Pandit Raghubar Prasad. AIR 1941 Nag. 311 and it was held in the case of Raghubar Prasad that the user of a Chabutra for tethering cattle and depositing cowdung etc., should be taken as acts of adverse possession. A careful reading of the case of Raghubar Prasad will show that the finding of adverse possession really did not turn on the nature of user but appears to have turned on the significant fact that the Chabutra was contiguous with the house of the defendant who had unquestionably constructed a shed over it for tethering cattle. Thus the contiguity of the Chabutra with the house really mattered in the animus of the user as possession as of right. In the facts of our case the position is just reverse. The. Khandhar in question is contiguous with the house of the appellants while the house of the respondent who claims adverse possession is separted from the Khandhar by a lane. Consequently the application of ILR Bom. 338 in the Nagpur case was on different facts while the principle appears to hold good even now. As stated above, the case of Pt. Raghubar Prasad (supra) tends to help the appellants as against the respondents in view of the fact of contiguity.

Judging the evidence on record and particularly in view of loud pleadings of adverse possession in the written-statement, it is really difficult to hold that the respondents could be legally held to be in possesion of the premises by virtue of the use for easing and then attempting to improve the dilapidated premises in the shape of a make-shift latrine. The pleadings are not proved by cogent and convincing evidence of exclusive possession of respondent No. 1 over the Khandhar.

The learned lower appellate court arrived at an illegal finding of holding that the respondent was in possession for more than 12 years because it did not apply its mind to the aforesaid basic two constituents of legal possession. It further erred in taking user of land as exclusive possession and totally failed to consider the animus.

Coming to the question of adverse possession, it is settled law that mere possession howsoever long in duration will not constitute adverse possession as contemplated by Article 65 ibid. In order to constitute adverse possession it must be factual possession with ingredients of corpus and animus as discussed above and further such possession should exclude the original owner and that should be done with the intention of declaring a little hostile to the original owner. In other words the person claiming adverse possession should not merely exclusively possess the property but should so possess it in exercise of his own, readable, declared claim to own t he property. What is evidence on record from the side of the respondent on whom lies the burden to prove adverse possession in support of it? This question is being put particularly with reference to the second part. There is nothing on record to show that there was occasion or were occasions for the respondent to demonstrate that he was excluding possession of the appellants to their knowledge with the intention of. claiming hostile title of the Khandhar. The learned lower appellate court lost sight of this important legal aspect of adverse possession and, therefore, arrived at a conclusion which is without any legal foundation of adverse possession and consequently it cannot be said to be a finding in the eye of law.

As a last leg of his argument it was said by the learned counsel for the respondents that the finding of fact arrived at by the lower appellate court should not be disturbed in second appeal u/s 100, Civil Procedure Code. The law on the point is settled. If the finding is perverse or cannot be called a finding in the eye of law then this court can certainly reverse the conclusion of the lower appellate court arrived at without legal finding.

For all the aforesaid reasons the judgment and decree of the lower appellate court reversing that of the trial court to hold that the respondents had proved adverse possession and that the suit of the appellants was barred by time are patently perverse and cannot be allowed to stand in the face of correct understanding of Articles 64 and 65 of the Indian Limitation Act as also the concept and application of principles of adverse possession as discussed above.

The appeal is, therefore, allowed. The judgment and decree of the lower appellate court are reversed and those of the trial court are restored. The appellants shall have costs of this appeal from the respondents who will bear their own. Counsel''s fee as per schedule.