Tripura High Court
Sri Satya Ranjan Acharjee vs (A) Smt. Pratibha Paul on 17 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
RSA 29 of 2018
1. Sri Satya Ranjan Acharjee
S/O. Lt. Sudhir Ranjan Acharjee,
2. Sri Sabinay Acharjee
S/O. Lt. Sudhir Ranjan Acharjee,
3. LRs of Lt. Sushital Acharjee,
(i) Smt. Bedashri Acharjee
W/o. Lt. Sushital Acharjeee,
(ii) Smt. Dwipinnita Acharje (Minor)
D/o. Lt. Sushital Acharjeee,
4. Smt. Khela Rani Acharjee
D/o. Lt. Sudhri Ranjan Acharjee,
5. Smt. Sandhya Rani Acharjee
D/o. Lt. Sudhir Ranjan Acharjeee,
6. Smt. Padma Rani Acharjee
D/o. Lt. Sudhir Ranjan Acharjee,
7. Smt. Sabitri Acharjee
W/o. Sri Pranabesh Acharjee,
All are residents of Vill. - Dalugaonbazar,
P.S. - Kailashahar, District - Unakoti, Tripura.
-----Appellant(s)
Versus
1(a) Smt. Pratibha Paul
W/O. Late Gouranga Ch. Paul,
1(b) Shri Narayan Paul
S/o. Late Gouranga Ch. Paul,
1(c) Smt. Anju Paul
daughter of Late Gouranga Chandra Paul,
Page 2 of 17
1(d) Smt. Mousumi Paul alias Mani
daughter of Late Gouranga Chandra Paul,
1(e) Smt. Mitali Paul alias Mitu
daughter of Late Gouranga Chandra Paul,
All resident of Dalugaon Market,
P.O.& P.S. and Sub-Division - Kailashahar,
District - Unakoti Tripura.
-----Respondent(s)
For Appellant(s) : Mr. S. M. Chakraborty, Sr. Adv.
: Ms. A. Pal, Adv.
For Respondent(s) : Mr. Somik Deb, Sr. Adv.
: Mr. Raju Datta, Adv.
Date of hearing : 15.02.2022.
Date of Pronouncement : 17.02.2022.
Whether fit for reporting : No.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is an appeal under Section 100 of the CPC, 1908 against the Judgment dated 18.05.2018 by the District Judge, Unakoti Judicial District, Kailashahar in Title Appeal No.16 of 2017 dismissing the appeal, affirming the judgment and decree by the Civil Judge (Senior Division) Unakoti, Kailashahar in T.S. No. 17 of 2016. [2] The brief fact of the plaintiff's (the appellant herein) case inter-alia is that the suit land originally belonged to the father of the plaintiffs namely Sudhir Rn. Acharjee(now deceased). The suit land is homestead ('bastu')class of land & has a drain running from east to west for the purpose of drainage on the suit land. After the death of said Sudhir Rn. Acharjee, the plaintiffs and defendant No. 2 inherited the property and their name also got mutated in the khatian No. 634 of Page 3 of 17 MoujaBirchandranagar. Subsequently, on 03-09-1997 the plaintiffs and defendant No. 2 sold 0.10 acres of land to the defendant No. 1 vide registered sale deed No. 1-1413 of 1997. Accordingly, the possession was also handed over. Eventually at one point of time the defendant No. 1 started construction on the suit land which as per the plaint, got competed in the year 2012. On 25-12-2012 the plaintiff came to know about this forceful encroachment of the suit land by the defendant No. 1 and on 03-05-2016 the defendant further occupied 0.01 acres of land on the southern side of 'A' schedule which is a drain and described in 'C' schedule of the plaint. Thereafter the plaintiffs requested the defendant to hand over the possession of the suit land but, to no result. [3] Thereafter, the appellant (the plaintiffs in TS 17 of 2016) instituted a title suit against the respondents (the defendants in TS 17 of 2016) praying for a decree declaring right, title and interest and recovery of possession of the suit land pertaining to Mouja- Birchandrnagar, Khatian (record of rights) No.634, C.S Plot Nos. 3356/3913, measuring -0.04 acres which is a part of land pertaining to the sam khatian No.634, C.S. Plot NOs. 3355, 3356/3919, 3369, 3370 and measuring -1.01 acres. The suit land is described explicitly in schedule 'B' of the plaint. There are two more schedules 'A' & 'C'. The 'A' schedule of land is the total land of the plaintiff whereas 'B' & 'C' are part of it. The 'C' schedule of land pertains to the same khatian and is a drain of one feet length and measuring 0.01 acres of land. The plaintiff sought recovery of possession of land described in 'B' & 'C' schedule also.
Page 4 of 17[4] For ready reference the Schedule 'A', 'B' and 'C' are reproduced herein under:
(‗A' Schedule) District- Unakoti, Sub-Division - Kailashahar, Mouja- Birchandranagar, Khatian No.634, C.S Plot NOs, -3355, 3356/3919, 3369, 3370. Total Land measuring - 1.01 acres.
(‗B' Schedule) District - Unakoti, Sub-Division- Kailashahar, Mouja- Birchandrangar, khatian No. 634, C.S Plot Nos. 3356/3919, Total Land measuring 0.04 acres ( Suit land under illegal possession of the defendant). Bouded by- North - defendant South - Plaintiffs East- Plaintiffs West - Kailashahar, Fatikroy Road.
(‗C' Schedule) District- Unakoti, Sub-Division- Kailashahar, Mouja- Birchandranagar, khatian No.634, there is a drain 1 fit length and running from East and West.
Bounded by - North - Bhuvan Singh
South - Defendant
East- Plaintiff
West- Kailashahar, Fatikroy Road
Within this boundary 0.01 acres of land. (In the sale deed bearing No. 1-1413 of 1997 it is mentioned that this drain will exist for passing water.) [5] The defendants the (respondent herein) herein filed the written statement. In the written statement so filed, it has been categorically stated by the respondents that the suit land along with other lands were originally belonged to Sudhir Ranjan Acharjee, the predecessors of the present defendant and others. After the death of Sudhir Ranjan Acharjee, the land was mutated in the name of heirs of Lt. Sudhir Ranjan Acharjee vide khatian No.634, Mouja-
Birchandranagar. The defendants have also mentioned in their written statement that on 03.09.1997, the defendants sold out 0.10 acres of Page 5 of 17 land vide Sale Deed No.1-1413 to the plaintiff and accordingly, the land was in his name vide Khatian no.1347. It has been also stated in the written statement that the plaintiff constructed a pucca building over the present suit land in the year 2012 and on 25.12.2012, the defendant came to know that the plaintiff forcefully enter into the suit land in the year 2012. On 03.05.2016, the defendant forcefully occupied 0.10 acres of land which is situated in the Southern side of the defendant's land.
[6] On the basis of the rival pleadings, the Civil Judge (Sr. Div), Unakoti Judicial District, Kailashahar hereinafter referred to as the trial judge, framed the following issues in TS 17 of 2016:
I. Whether the suit is maintainable ?
II. Whether there is any cause of action ?
III. Whether the plaintiff is in possession of the suit land since 03-09- 1997 ?
IV. Whether the plaintiff and defendant No. 2 sold 0.10 acres of land to defendant No. 1 on 03-09-1997 appertaining to khatian No. 1347 of MoujaBirchandranagar ?
V. Whether the defendant forcefully entered and took possession of 'B' schedule of land ?
VI. Whether on 03-05-2016 the defendant forcefully occupied 0.01 acres of land on the southern side of schedule 'A' and described in schedule 'C' of the plaint ? VII. Whether the plaintiff is entitled for the decree as prayed for ?
VIII. Whether the plaintiff is entitled for any other relief / reliefs ?
[7] The trial judge while deciding the issue No. I & II has observed that the defendant raised the defence of 'adverse possession'. Adverse possession is when the true owner of a property loses his/her Page 6 of 17 ownership rights owing to inaction on his/her part to remove a trespasser within a statutory period from the property. After lapse of the statutory limitation period for eviction, the true owner is barred from initiating any legal proceeding to repossess his/her property and the trespasser acquires title to that property by adverse/hostile possession. This means that the true owner is to file a suit for recovery of possesses within 12(twelve) years from the date of dispossession. The plaint speaks that the plaintiff was dispossessed on 25.12.2012 and the suit is filed on 09-06-2016 which means that the suit is not barred by limitation. Accordingly, I find that the suit is filed within time and is not barred by limitation.
[8] The suit is accordingly, maintainable in its present form and nature and is not barred by limitation. The issues are answered accordingly.
[9] While deciding the Issue No.III, the trial court has observed that the suit of the plaintiff is standing on one pillar that in the year 2012 the defendant no 1 completed construction of his shop and included the suit land within it. This is certainly a factual aspect which needs to be proved by evidence. There is no documentary evidence in this regard. Now considering the evidence which is discussed above it is found that the plaintiff could not make his such assertion probable. In fact one of the witness totally contradicted by plaintiff stating that for the last 16/17 years the defendant did no construction of his shop. [10] The vital part to be noticed is the khatian No. 634 which is in the name of the plaintiffs. As stated above the comment column of Page 7 of 17 the khatian reflects the name of the defendant No. 1 to be permissive possessor. The said khatian has reference of mutation No. 17/96, 204, 190/03, 123/04. These references gives an idea that the khatian is prepared in the year 1996 & subsequently reviewed in 2003 and 2004. The plaintiff in his cross-examination admitted that he knows that the name of the defendant No. 1 has been shown as permissive possessor in his khatian further admitting that he did not approach the revenue court for correction of it. This throws serious doubt on the stand of the plaintiff making it improbable that since 1997 up to 2012, the plaintiff was in possession of the suit land.
[11] Situated thus, I am of the opinion that the plaintiff could not establish or rather could not make it probable that they are possessing the suit land since 1997 and got dispossessed in the year 2012. The issues is answered accordingly.
[12] The trial judge after having examined all the records so placed in the plaint, has observed as herein under:
―In the result, the suit of the plaintiffs is dismissed with cost.
The plaintiffs are found to be not entitled for any decree of right, title interest along-with recovery of possession over the suit land.
With the above said observation this instant suit stands disposed of on contest.‖ [13] Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, the appellant herein preferred an appeal being case No. Title Appeal No.16 of 2017 in the court of the District Judge, Unakoti Judicial District, Kailashahar. The said court by Page 8 of 17 its judgment dated 18.05.2018 has observed with regard to the date of dispossession as under:
―In our case in hand admittedly no specific date of dispossession mentioned by the appellant-plaintiffs in the plaint rather from the evidence adduced by the plaintiffs side it appears that the witnesses deposed for last 16/17 years the present respondent no.1 did no construction in the suit land. On my perusal of the judgment passed by the trial court I find that the trial court elaborately discussed this matter in her judgment. The khatian stands in the name of respondent no.1 also indicating that the respondent no.1 is a permissive possessor and on the basis of this entry in the khatian he initiated a proceeding under section 95 of the TLR and LR Act before the Revenue Authority with his claim for correction of entry in the ROR and it was also in the knowledge of the present appellants. By the passage of time after selling the land of 10 decimal and creation of aforesaid khatian no steps taken by the present appellants prior to institution of their title suit bearing no.17 of 2016.‖ The lower appellate court by the judgment dated 18.05.2018 has dismissed the appeal preferred by the appellants.
[14] Being aggrieved by the said judgment dated 18.05.2018, the appellant herein has preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial question of law was framed by this court by the order dated 28.08.2018.
―No one witness on behalf of the present appellants deposed how and in which manner the present respondent applied force in dispossessing the present appellant and thereby the learned trial court arrived at a findings that the present appellants could not establish that the present respondent No.1 forcefully occupied the ‗B' and ‗C' schedule land of the plaint.‖ [15] It is the case of the appellant that he is the owner and in possession of the suit schedule property and since the defendant has dispossessed and raised construction in 2012, the plaintiff filed the suit. Admittedly, the defendant did not deny the said allegation and claim Page 9 of 17 adverse possession upon the property and also admitted, title of the plaintiff. The trial court on the ground of cause of action, maintainability, limitation has opined in the favour of the plaintiff. But on the point of adverse possession, since the date of dispossession is not proved, the same has been held against the plaintiff and the suit has been dismissed.
[16] The defendant also filed another suit with regard to the suit schedule property which is schedule B in earlier suit filed by the plaintiff. Schedule B has already been reproduced above. The defendant filed another suit seeking relief which is Schedule B property in the court below and the court below has dismissed the said suit since the plaintiff in suit has not made any case in support of his contention. [17] Thus, both the suits filed by the plaintiff and the defendant in respect of the suit schedule property were dismissed. It is has been reported by the counsel for the parties that their respective suits were dismissed separately on the same date but they were not clubbed. It is not known as to why both the suits were not taken up together as one suit for claimant and another suit towards counter claim by the plaintiff of the other suit.
[18] Aggrieved by the judgment of the trial court both the parties preferred appeal before the lower appellate court and the lower appellate court dismissed both the appeals confirming the judgment and decree passed by the trial court. The defendant in the first suit is also plaintiff in the other suit did not challenge the lower appellate court order and registered his case by inviting dismissal of the suit and Page 10 of 17 the appeal. However, the present RSA is filed by the plaintiff in TA 16 of 2017 and TS 17 of 2016 and the defendant therein has not preferred any RSA.
RSA has been admitted and the substantial question of law is framed which has been extracted above.
[19] Mr. S. M. chakraborty, Senior Counsel has argued that the order of the lower court is perverse since the court below has accepted the case in favour of the plaintiff with regard to maintainability, limitation and title and also the adverse possession but dismissed the suit because the date of dispossession has not been established and prayed to allow the appeal and set aside to the order of the court below and decree the suit.
[20] Mr. Somik Deb, senior counsel for the respondents has placed his reliance on Section 65 of Limitation Act,1963 and Section 6 of the Specific Relief Act,1963 and contended that the law of limitation of 12 years comes into force and the plaintiff-appellant is not entitled for any relief since the defendant were in the adverse possession. For ready reference Section 65 of Limitation Act of 1963 and Section 6 of the Specific Relief Act,1963 are extracted herein under:
Description of suit Period of limitation Time from which period begins to run
65. For possession of Twelve years. When the possession of immovable property or any the defendant becomes interest therein based on adverse to the plaintiff.
title.
Explanation.--For the
purposes of this article--
(a) where the suit is by a
remainderman, a
reversioner (other than a
landlord) or a devisee, the
possession of the
defendant shall be deemed
Page 11 of 17
to become adverse only
when the estate of the
remainderman,
reversioner or devisee, as
the case may be, falls into
possession;
(b) where the suit is by a
Hindu or Muslim
entitled to the
possession of immovable
property on the death of a
Hindu or Muslim female,
the possession of the
defendant shall be deemed
to become adverse only
when the female dies;
(c) where the suit is by a
purchaser at a sale in
execution of a decree
when the judgment-debtor
was out of possession at
the date of the sale, the
purchaser shall be deemed
to be a representative of
the judgment-debtor who
was out of possession
Section 6 of Specific Relief Act of 1963
―6. Suit by person dispossessed of immovable property.--
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.‖ [21] Mr. Somik Deb, senior counsel has relied upon the following judgments:
(i) C. Doddanarayana and Others vs. C. Jayarama Reddy reported in (2020) 4 SCC 659 where the apex court has observed in the following manner:Page 12 of 17
25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan8, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15) ―12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC
392), this court held "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC
166), this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by com- pelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even as- suming that another view is possible on a reappreci- ation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: (SCC p. 486, para 5) "5......The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."
(ii) Hemaji Waghaji Jat vs. Bhikhabhai Khengarghai Harijan reported in (2009) 16 SCC 517 where the apex court has observed in the following manner:
Page 13 of 17
17. The facts of R. Chandevarappa & Others v. State of Karnataka & Others (1995) 6 SCC 309 are similar to the case at hand. In this case, this court observed as under:-
"11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
18. In D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 this court observed as under:-
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
19. In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC 271, paras 21-22, this Court observed as under:
"21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
22. ....We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."
20. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:- Page 14 of 17
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that ―11...plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.‖
(iii) Poona Ram vs. Moti Ram reported in (2019) 11 SCC 309 where the apex court has observed in the following manner:
―19. The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same.
20. Having regard to the position of law and facts of the case, we are of the considered opinion that the High Court was not justified in interfering with the judgment of the First Appellate Court, which has come down very heavily on the procedure adopted by the trial Judge in deciding the matter, more particularly when no fault can be found Page 15 of 17 on facts with the judgment of the First Appellate Court.
Generally, it is not open to the High Court to interfere with the findings of fact recorded by the First Appellate Court when such findings are based on the evidence on record, and are not perverse or against the material on record.‖ [22] Senior counsel for the respondent further argued on the point of limitation as the suit is barred by the limitation, in view of the adverse possession the delay in filing the suit is hit by limitation and the suit is liable to be dismissed. On the point of limitation the plaintiff is not entitled for any relief for filing of the suit and same is not maintainable and prayed to dismiss the RSA but whereas the trial court and the lower appellate court on the point of limitation has already held in favour of the plaintiff and the suit is also maintainable and answered accepting the argument on the point of limitation since the same is not challenged, the said argument on the point of limitation is not considered.
[23] Admittedly it is not in dispute with regard to the title, limitation and maintainability of the suit in favour of the plaintiff- appellant. The only point which where the case of the plaintiff has been negative is that the plaintiff could not prove his date of dispossession. The case of adverse dispossession was also not denied by the defendant. The defendant also accepted the title in favour of the plaintiff. Having agreed upon the title and the adverse possession which is undisputed by the defendant cannot be held that the plaintiff is not entitled for the relief sought for. Once the court comes to a conclusion and when the defendant has not opposed the right title and interest of the boundary land, the plaintiff is entitled for protection of his Page 16 of 17 immovable property. Once the conclusion is in favour of the plaintiff, he is entitled for all consequential reliefs. It is the case of the plaintiff that the plaintiff and the defendant know each other for quite some time and it was open land. The defendant having interest in the adjacent property has raised construction and in the process land of plaintiff has been occupied by defendant.
[24] Till the construction was raised the property was vacant and the same was in possession of the plaintiff and by raising the construction in part of the land of plaintiff by the defendant, the defendant has dispossessed the plaintiff with regard to the schedule B Property. Since the defendant also has not established his case with regard to adverse possession of the property and has failed to come over the judgment of the apex court in Karnataka Board of Wakf vs Govt. of India reported in (2004) 10 SCC 779 where the court has observed in the following manner:
―11...Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC
567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession Page 17 of 17 has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.‖ [25] Since the defendant has failed in proving the adverse possession in the light of the conditions framed by the apex court in Karnataka Board of Wakf (supra)this court has no hesitation to say that the suit needs to be decreed in favour of the plaintiff with all consequential reliefs.
Accordingly, the appeal is allowed.
The order passed by the trial court dated 30.08.2017 and the order passed by the lower appellate court dated 18.05.2018 are set aside.
Accordingly, the suit is decreed with costs.
The registry is directed to prepare the decree accordingly.
JUDGE Dipak