Allahabad High Court
Prem Narain And Anr. vs Shiv Pati And Ors. on 24 September, 2004
Equivalent citations: 2005(1)ARC46, 2005(1)AWC493
JUDGMENT N.K. Mehrotra, J.
1. This is second appeal under Section 100, C.P.C. against the judgment and decree dated 19.11.1981, passed by IIIrd Additional District Judge, Faizabad allowing the Civil Appeal No. 529/79 by setting aside the judgment of Vth Additional Munsif, Faizabad dated 15.9.1979, passed in Regular Suit No. 107 of 1978, Prem Narain and Anr. v. Lalla.
2. I have heard Shri S. K. Mehrotra, learned counsel for the appellants. Respondents are represented through Shri Rakesh Kumar Srivastava, advocate but the learned counsel for the respondents did not appear to argue the appeal.
3. It appears that the plaintiffs-appellants filed suit for possession against the defendant-respondent Lalla. the predecessor in title of the respondents in this appeal with the allegations that one Meer Yusuf Ali was owner of the house bearing Municipal No. 374 situated in Mohalla Amaniganj, Faizabad. Meer Yusuf Ali transferred the house to Bashiruddin. After the death of Bashiruddin, the said house came to his wife Kadari Begum and daughter Ahmadi Biwi by inheritance. Kadari Begum transferred eastern half of the said house through a sale deed dated 7.11.1964 in favour of Shyam Dev Pandey and the remaining western half to Shri Sharafat Hussain and Riaz Hussain through another sale deed dated 25.1.1967. Sharafat Hussain and Riaz Hussain transferred this western half portion on 26.12.1968, through a sale deed in favour of the plaintiffs (the appellants). The case of the plaintiffs was that since then they were in possession of the disputed house. It is further alleged by the plaintiffs that on the portion comprising of a verandah and kothari, the defendant was shown as tenant in the municipal record, therefore, the plaintiffs filed a suit for ejectment of the defendant In the year 1974 in the court of Judge, Small Causes. This suit was dismissed on the ground that the defendant was not a tenant and he was held to be a trespasser. Therefore, the suit was filed for eviction of the defendant as trespasser.
4. The case of the defendant was that the western half of the disputed house was not sold by Meer Yusuf Ali to Bashiruddin and as such neither Bashiruddin nor his legal heirs namely Kadari Begum and her daughter could have any title over the disputed house and they could not transfer this portion in favour of Sharafat Hussain and Riaz Hussain and Sharafat Hussain and Riaz Hussain could not transfer the disputed house in favour of the plaintiffs. The defendant claimed his possession over the disputed portion of the house since the time of Meer Yusuf Ali and he set up the case that he purchased this portion of the house in an oral transaction in consideration of Rs. 80. The defendant also claimed his title through adverse possession.
5. Learned Munsif framed 10 issues, which are as follows :
"(1) Whether plaintiffs are owner of the house in suit as alleged in paras 2, 3 and 4 of the plaint?
(2) Whether the defendant is trespasser and is liable to be ejected?
(3) Whether Bashiruddin was trespasser of half eastern portion of the house in question and had no concern with the western portion?
(4) Whether plaintiffs had lost their title if any for want of possession?
(5) Whether the plaintiffs are estopped from suing the defendant as trespasser as alleged in para 19 of the W.S.?
(6) Whether Meer Yusuf Hussain transferred the house in suit to defendant for Rs. 80 and put him into possession?
(7) Whether plaintiffs are not entitled to sue as alleged in para 2 of the W.S.?
(8) Whether the suit is barred by limitation?
(9) Whether the suit is undervalued and court fee paid is insufficient?
(10) To what relief if any are the plaintiffs entitled?
6. On issue Nos. 1 and 6, the learned Munsif disbelieved the oral sale in consideration of Rs. 80 in favour of the defendant and held that the plaintiffs are the owner of the disputed house on the basis of the sale deed dated 26.12.1968 executed by Sharafat Hussain and Riaz Hussain. On issue No. 2 with regard to the nature of possession of the defendant, it was held by the trial court that the defendant has not been able to prove his title and he is trespasser in the disputed house. In issue No. 7 a plea of adverse possession as stated in paragraph 21 of the written statement was involved in which the defendant had taken the plea that his right has been perfected on the basis of adverse possession. After discussing the evidence, the learned Munsif held that the defendant has not pointed out the period from which he is in adverse possession. The defendant has failed to establish that he is in adverse possession for more than twelve years. After recording this finding, the learned Munsif has held that the defendant has not perfected his title on the basis of the adverse possession because there is no adequate evidence to prove the adverse possession of the defendant. Issue No. 8 relates to the issue of limitation and the learned Munsif has held that the defendant has not been able to establish 'the period from which he has been in adverse possession. Therefore, the suit is well within the time. With the aforesaid findings, the suit for possession was decreed.
7. Learned 1st appellate Judge has allowed the appeal and dismissed the suit on two grounds ; firstly, the plaintiffs having failed to transfer deed by which Meer Yusuf Ali transferred the property in favour of Bashiruddin and ; secondly, one of the plaintiff witnesses has stated that the defendant has been in possession over property for about 26-27 years. On the basis of this statement, the appellate court has held that the defendant has been in adverse possession much beyond twelve years prior to the date of suit.
8. After hearing the learned counsel for the appellants. 1 find that the following two substantial questions of law are to be decided in this second appeal :
(i) Whether there being no specific time of adverse possession having been set up in written statement and there being no ingredients of adverse possession having been pleaded and proved, the adverse possession set up by the defendants could be established.
(ii) Whether there being no patent hostility being set up in the written statement or stated in the evidence by the defendant, the adverse possession could be made out.
9. Both the aforesaid substantial question of law relate to the question what is required to perfect the title on the basis of the adverse possession.
10. From the pleadings and the evidence on record, I find that in paragraph 19 of the written statement, the defendant has pleaded that earlier in S.C.C. Suit No. 31 of 1974, the plaintiffs have filed the suit for eviction after determination of the tenancy of the defendant and that suit has failed and now the plaintiffs cannot take the plea that the defendant is the trespasser. In paragraph 21 of the written statement, the defendant has taken a plea that if the defendant is not accepted to be the owner, then he being in adverse possession over the disputed house from the time of Meer Yusuf All and the time the S.C.C. suit for eviction was filed, the defendant has perfected his title by adverse possession. I also find that from the pleadings and the evidence that the defendant claims himself to be the owner of the disputed house on the ground that he had purchased this house in consideration of Rs. 80 by oral sale from Meer Yusuf Ali which is not proved by the defendant by cogent evidence. It is clear from the pleadings and the evidence that the defendant first of all has pleaded himself to be the owner and then in the alternative he has taken the plea that he is in possession from the time of Meer Yusuf Ali and admittedly he was in possession when the S.C.C. Suit No. 31 of 1974 for eviction was filed by the plaintiff against him.
11. In Balkrishna v. Satya Prakash and Ors., 2001 (19) LCD 1082, the Supreme Court has held as follows :
"The law with regard to perfecting title by adverse possession is well-settled. A person claiming title by adverse possession has to prove three 'nec-nec vi, vec clam and nee precario'. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, speaking for this Court, Hidayatullah, J. (as he then was) observed thus :
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
12. In Thakur Kishan Singh (dead) v. Arvind Kumar, (1994) 6 SCC 591, it was held by the Supreme Court that if initially the possession was permissive, the heavy burden lies on the party claiming adverse possession to establish when it became adverse.
13. In Roop Singh v. Ram Singh, 2000 (2) AWC 2.22 (SC) (NOC) : 2001 (19) LCD 232, it was held by the Supreme Court that mere possession for a long time does not result in converting permissive possession into adverse possession.
14. In Smt. Arundhanthi Mishra v. R.C. Pandey, 1996 (14) LCD 80, it was held that the pleas based on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced.
15. Here In the instant case, the defendant Lalla throughout claimed himself to be the owner of the disputed portion of the house on the basis of the oral sale. He contested the S.C.C. suit on the ground that he was not the tenant while admittedly he was recorded the tenant in the municipal record. So till the judgment in the S.C.C. suit, he had not left the plea of ownership. It is for the first time in the defence taken in the instant suit that he has taken the plea of perfection of title on the basis of the adverse possession and in the trial court, he could not prove the period from which he has renounced his claim of ownership and he started claiming his possession open and hostile to the true owner. The finding of the learned appellate court in first appeal is based on the longstanding possession of 26-27 years but in view of the aforesaid decision of the Supreme Court in Roop Singh v. Ram Singh, (supra), mere possession for a long time does not make the title of any person perfect on the basis of the adverse possession. For perfecting the title on the basis of the adverse possession, the possession must be open and hostile to the true owner. I do not find such ingredients of adverse possession in this case and therefore, the finding of perfection of title on the basis of the adverse possession in favour of the defendants-respondent is not in accordance with law.
16. In view of the above, this second appeal is allowed. The impugned judgment and order dated 19.11.1981 passed in Civil Appeal No. 529 of 1979, Lalla v. Prem Narain and Anr., is set aside and the judgment and decree of the trial court is confirmed.
17. Let a certified copy of this judgment be sent to the District Judge concerned for compliance within seven days.