Prabhulal vs Kailashnarayan

The appellant (hereinafter referred to as "plaintiff") has filed the present second appeal being aggrieved by judgment and decree dated 18.09.2012 passed by Civil Judge, Class-II, Shujalpur Distt. Shajapur and judgment dated 28.11.2013 passed by Additional District Judge, Shujalpur Distt. Shajapur whereby the suit as well as the first appeal both have been dismissed.

Facts, necessary for disposal of this appeal, are as under :

Plaintiff filed a suit for declaration and permanent injunction in respect of agricultural land (hereinafter referred as suit land) bearing survey no. 1202/2, area 0.115 hectares of Village Khokra. As per the pleadings in the plaint, the plaintiff is the owner of land bearing survey No. 1201/1 alongwith 1202/1 which was purchased by his father. According to the plaintiff, at the time of aforesaid sale, his father obtained the possession of the land bearing survey no. 1202/1 alongwith 1202/2(suit land) and since then, he is in possession. The said fact was in the knowledge of the defendant no.1. The plaintiff is also paying rent to the Water Resources Department for the purpose of irrigation. In the year 1992, the defendant directed plaintiff to handover the possession to him and the plaintiff denied and since then he is cultivating the suit land. Hence, he has perfected the title by way of adverse possession. The right of defendant has been defeated to get the possession, as the plaintiff is in possession since the last 16 years.

After notice, the defendant filed written statement by denying the averments made in the plaint. He has specifically pleaded that he is the absolute owner of the suit land the plaintiff and his father were never in the possession over the suit land. The plaintiff is in possession only over the land bearing survey No. 1202/1. The defendant further pleaded that Government has constructed pond over the land adjacent to the suit land and the plaintiff took forcible possession in 2006-07. Thereafter defendant has filed application on 6. 04.2008 before the Tehsildar for obtaining possession. Plaintiff is in possession since the last 2 ½ years only.

On the basis of pleadings, trial Court framed four issues for adjudication.

क्र.

वादप्रश्न

1

क्या वादी ग्राम खोकराकाला स्थित भूमि सर्वे न. 1202/2 रकबा 0.115 है0 का विधिपूर्ण

स्वामी एवं आध्पित्यधारी है ?

2

क्या वादी के स्वामित्व एवं अध्पित्य की वादग्रस्त भूमि पर प्रतिवादी क्र. 1 अवैध रुप से

हस्तक्षेप कर रहा है ?

3

क्या वादी ने दावे का उचित मूल्यांकन कर पर्याप्त न्यायशुल्क अदा किया है ?

4

सहायता एवं व्यय ?

The plaintiff and defendant both examined their witnesses and got exhibited various documents. Learned Trial Court after examining the evidence came on record and law laid down by the Apex Court in the case of S.S. Kareem Vs. Bibi Sakeena[AIR 1965 SC 1254] has dismissed the suit. Learned trial Court has specifically recorded the findings in para 24 that ancestors of defendants remained into the possession from 1950-51 to 1978 which is evident from Exhibits D-1 to D-7. The plaintiff has failed to prove that he is in possession since 15.06.1992. Vide judgment and decree dated 18.09.2012, the suit has been dismissed.

Being aggrieved by the dismissal of the suit, the plaintiff preferred first appeal before the District Judge. Vide judgment dated 28.11.2013, First Additional District Judge has dismissed the appeal.

Being aggrieved by the dismissal of suit and first appeal, plaintiff has filed the present appeal before this Court.

Shri Piyush Shrivastava appearing for the plaintiff/appellant submitted that both the Courts below have failed to consider Exhibit P-1 to P-7 in which possession of plaintiff is recorded and the same has perfected into his title. In support of his contentions, he has placed reliance over judgment of this Court rendered in the case of Bondar Singh and others Vs. Nihal Singh and others : AIR 2003 SC 1905. He further submitted that at the instance of defendant, demarcation was carried out in which the suit land was found to be in possession of the plaintiff. After lapse of 12 years, the plaintiff has acquired the right and title by way of adverse possession, therefore both the judgments of Courts below are liable to be set aside and appeal deserves to be allowed.

Shri Joshi, learned counsel appearing for respondent submitted that scope of interference by the High Court in the second appeal where concurrent findings are recorded by the Courts below is very limited. There is no perversity. Even othersie in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Anr. : 2014(1) SCC 669, the suit claiming title by way of adverse possession is not maintainable. Hence the appeal is liable to be dismissed.

According to the plaintiff, his father purchased the land bearing survey no. 1201/1 and 1202/1and at that time, the possession of survey No. 1202/2 was also given to him. In support of his claim, he got exhibited the copy of receipt of depositing water tax in the years 1961, 1968 and 1969(Exhibits P1,P2 and P3) and apart from this, he did not file any revenue record to establish his possession. On the contrary, the defendant has got exhibited certified copy of Khasra of Years 1950 Ex. D1, 1951 Ex. D2, 1952-53 Ex. D-3, 1958 to 1961 Ex. D4, 1967 Ex. D-5, 1968-69 Ex. D-6, 1970 to 1973 Ex. D-7 and 1975 to 1978 Ex. D-8.

It is clear from the aforesaid documents that from the year 1951 to 1978, the suit land was in possession of the ancestors of defendant and there is no dispute that defendant is owner of the suit land. The law in respect of adverse possession is well settled now.

The plaintiff is claiming decree of title on the basis of adverse possession. The issue of adverse possession came up for consideration before the apex Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Anr. : 2014(1) SCC 669 and it has been held that even if the plaintiff is found to be in permissive possession, he cannot seek a declaration to the effect that such adverse possession has matured into ownership. He can use the same as a defence in a proceeding, initiated by the defendant. The operative part of the aforesaid order is reproduced below:

"7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as a defendant that it can use this adverse possession as a shield/ defence."

The aforesaid judgment has been further followed in the a recent judgment of Apex court in case of State of Uttarakhand & Another Vs. Mandir Sri Laxman Sidh Maharaj : (2017) 9 SCC 579. Relevant portion of the aforesaid judgment is reproduced below:

"By no stretch of imagination, in our view, such a declaration of ownership over the suit property and right of easement over a well could be granted by the Trial Court in plaintiff's favour because even the plaintiff did not claim title in the suit property on the strength of "adverse possession".Neither there were any pleadings nor any issue much less evidence to prove the adverse possession on land and for grant of any easementry right over the well. The Courts below should have seen that no declaration of ownership rights over the suit property could be granted to the plaintiff on the strength of "adverse possession" (see Gurdwara Sahib vs. Gram Panchayat Village Sirthala & Anr., (2014) 1 SCC 669. The Courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief. This principle is fully applied to the facts of this case against the plaintiff. "

The Apex Court in a recent judgment passed in the case of Ram Nagina Rai & Another Vs. Deo Kumar Rai & Another (Civil Appeal No.7266/2013, decided on 21. 08.2018) has held that a person pleading adverse possession has no equity in his favour. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. There is a lot of difference between simple possession and adverse possession. Every possession is not an adverse possession. The party will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be. The party who raises the plea of adverse possession, the burden is on them to prove that the bar under Article 65 of the Schedule of the Limitation Act, 1963 viz. 12 years. The person who bases the title of adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. Relevant portion of the aforesaid judgement is reproduced below:

"6. Since the contesting Defendants have raised a plea of adverse possession, the burden is on them to prove affirmatively that the bar of limitation prescribed Under Article 65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. The limitation of 12 years begins when the possession of the Defendants would become adverse to that of the Plaintiffs. Thus, it is incumbent on the Plaintiffs to file a suit for possession within 12 years from when the possession of the Defendants becomes adverse to. The Plaintiffs. Article 65 presupposes that the limitation starts only if the Defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another's title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other's title, make his possession adverse so as to give himself the benefit of the statute of limitation.

In the matter on hand, though the Defendants have pleaded that they are the owners of the property, it seems that during the course of the trial, they have given up this contention, inasmuch as they have only concentrated on the contention that they have perfected the title by adverse possession. All through, as is evident from the material evidence on record and their contentions, the Defendants have tried to show that they have been in continuous possession of the property for more than 60 years. But there is no iota of evidence to show as to when the Defendants' possession in fact became adverse to the interest of the Plaintiff. Except for the change of khatian sometime in the year 1970 by the Defendants and the payment of taxes for being in possession of property, no material is produced by the Defendants to show whether the possession was really hostile to the actual owner. There is absolutely nothing on record to show that there was a hostile assertion by the Defendants. We do not find that the Defendants had hostile animus at any point of time, from the facts and circumstances of this case. The Defendants denied the title of the Plaintiffs over the suit property only when the suit came to be filed, inasmuch as the Defendants have taken such a contention for the first time in their written statements.

The non-use of the property by the owner even for a long time may affect the title of the owner under certain circumstances. The acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. There is a lot of difference between simple possession and adverse possession. Every possession is not adverse possession. The Defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.

Until the Defendants' possession becomes adverse to that of the real owner, the Defendants continue in permissive possession of the property. Only if the Defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed Under Article 65 of the Limitation Act, from the point of time the possession by the Defendants becomes adverse to the Plaintiffs, the real owner loses his title over the property. The Defendants are not only required to prove that they have been in possession of the suit property continuously and uninterruptedly, but also need to prove, by cogent and convincing evidence, that there is hostile animus and possession adverse to the knowledge of the real owner.

Thus, it is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of the adverse user must be communicated atleast impliedly to the actual owner of the property. His hostile attitude should be open to the knowledge of the real owner. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner.

Applying the test of nee vi, nee clam, nee precario i.e., 'without force, without secrecy, without permission' as an established test for finding adverse possession, we find that the Defendants have not proved their possession to be adverse to that of the real owner inasmuch as they entered into possession as licensees to begin with and there. is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner. 'Animus possidendi' is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, the Defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

It is an established position of law that insofar as Articles 64 and 65 of the Limitation Act are concerned, once a party proves its title, the onus of proof would be on the other party to prove the claim of title by adverse possession. In this case, it is an admitted fact that the ownership of the said suit property rests with the Plaintiffs. "

In view of the latest verdict by the Apex Court, now the law in respect of adverse possession is well settled. In the present case, the plaintiff's case before the trail court was only that he is in possession over the suit land since the period of his ancestors. The plaintiff has failed to establish that he is in adverse possession over the suit land for a period of 12 years.

Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722 , has held as under:

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal.The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."

In view of the above, this appeal does not involve any question of law much less substantial question of law and the same is hereby dismissed.

No order as to costs.