Jharkhand High Court
Abhishek Yadav vs Paspati Devi on 25 September, 2020
Equivalent citations: AIR 2021 JHARKHAND 25, AIRONLINE 2020 JHA 635
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
S.A. No. 271 of 2019
........
(Against the judgment dated 17.05.2019 and decree dated 27.05.2019 passed
by Sri Pradeep Kumar Chourasia, learned Principal District Judge, Jamtara
in Civil Appeal No. 50/2018).
........
Abhishek Yadav, Son of Late Meghnath Yadav, Resident of Paulbagan,
Mihijam, P.O. & P.S. - Mihijam, District - Jamtara.
.... Defendant / Appellant / Appellant
Versus
Paspati Devi, Wife of Late Mulchand Shah, Resident of Paulbagan,
Mihijam, P.O. & P.S. - Mihijam, District - Jamtara.
.... Plaintiff / Respondent / Respondent
............
For the Appellant : Mr. Pratyush Kumar, Advocate.
Ms. Shalini Kumari, Advocate.
For the Respondent :
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
........
Reserved On : 10/09/2020 Pronounced On : 25/09/2020
1. Heard, learned counsel for the appellant, Mr. Pratyush Kumar assisted
by Ms. Shalini Kumari.
2. The appellant / defendant has assailed the impugned judgment dated
17.05.2019 and decree dated 27.05.2019 passed by learned Principal
District Judge, Jamtara in Civil Appeal No.50/2018, affirming the
judgment dated 27.09.2018 and decree dated 09.10.2018 passed by learned
Civil Judge(Sr. Division)-I, Jamtara in Title Suit No.19/2015, whereby the
suit has been decreed in favour of the plaintiff and the court below has
declared the plaintiff as bonafide owner of the suit land having perfect
right, title and interest and legally entitled to have the possession of the
suit property. If the suit property is found in possession of the defendant,
the defendant is directed to hand over the possession of suit property to the
plaintiff within a period of two months from the date of pronouncement of
the judgment, otherwise the plaintiff will be at liberty to get possession of
the land by legal recourse.
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3. Learned counsel for the appellant has assailed both the judgments
and decree of the courts below on the ground that the courts below have
not considered the case of the defendant and not appreciated the lacuna in
the plaintiff's case.
4. Learned counsel for the appellant has submitted that from bare
reading of paragraph nos. 1 to 6 of the plaint, it appears that defendant is
in possession of the suit land since long, some time in the year 1980 and as
such, he has got title by way of adverse possession.
5. Learned counsel for the appellant has submitted that Section 27 and
Article 65 of the Limitation Act put an embargo upon the genuine owner
after considerable time to interfere with the possession of the defendant,
though by way of adverse possession, as such, trial court as well as
appellate court have not considered the judgment passed by the Apex
Court in the case of Rame Gowda (Dead) by Lrs. Vs. M. Varadappa
Naidu (Dead) by Lrs. reported in (2004) 1 SCC 769, State of Rajsthan
and others Vs. Shiv Dayal and Another reported in (2019) 8 SCC 637
and Rabinder Kaur Grewal and Others Vs. Manjit Kaur and Others
reported in (2019) 8 SCC 792, as such, impugned judgment and decree
passed by both the courts below are fit to be set aside.
6. Learned counsel for the appellant has submitted that appeal is
barred by delay of 03 days and for condonation of same, I.A.
No.3385/2020 has been filed, as such, delay may be condoned.
7. Learned counsel for the appellant has submitted that I.A.
No.3386/2020 has been filed under Order-XLI Rule-5 CPC for stay of the
execution of decree passed by courts below.
8. This court while sitting in second appeal under Section 100 CPC is
conscious of the legal proposition as held by Apex Court in the case of
Gurnam Singh (Dead) by Lrs. Vs. Lehna Singh (Dead) by Lrs. reported
in (2019) 7 SCC 641 relying upon the judgment passed by Apex Court in
the case of Kondiba Dagadu Kadam Vs. Savitkibai Sopan Gujar reported
in (1999) 3 SCC 722 = AIR 1963 16 SC 33, the re-appreciation of
evidence is not allowed and there is distinction between appeal under
Section 96 CPC and appeal under Section 100 CPC.
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9. It appears from the record, that plaintiff, Paspati Devi has filed Title
Suit No.19/2015 against the defendant / appellant, Abhishek Yadav, son of
Late Meghnath Yadav with regard to declaration of her right, title &
interest over the suit property and confirmation of possession or in
alternative for recovery of possession of the suit land, which she has
purchased vide registered sale deed no.744 dated 26.04.1996 measuring
6 decimals of land of Plot no.34, which has been mentioned as 34/11 of
Khata no.128/ka of Mouza Mihijam no.15 from rightful owner of the land
namely, Madhusudan Pal and land was properly mutated vide final order
in Mutation Case No.48/1997-1998 and the rent receipts have been
brought on record as Exhibit-3 to 3/2. The sale deed has been brought on
record as Exhibit-2.
10. It appears from the record, that soon after purchase of land in the
year 1996, plaintiff has constructed a boundary wall. Meghnath Yadav,
father of the appellant / defendant had illegally occupied land in Plot No.
34, which was adjacent to the piece of land purchased by the plaintiff and
in the year 1999. When the plaintiff and her sons, went to construct a
house, Meghnath Yadav started creating trouble in construction of house,
due to which, PCR Case No.350/1999 was instituted which was sent to the
police station under Section 156(3) Cr.PC. and on the basis of which
Mihijam P.S. Case No.233/2010 was instituted. The said case was resulted
in compromise. After death of Meghnath Yadav on 28.02.2015, when the
plaintiff and her sons went to the suit property, they found that the
defendant had thrown cow dung in the suit premise. Thereafter, plaintiff
filed the suit.
11. To prove the case, plaintiff has examined five witnesses, Paspati
Devi as P.W.-1, Sharban Kumar Shah as P.W.2, Subas Chandra Das as
P.W.3, Santosh Kumar Sah as P.W.4 and Shankar Pandey as P.W.5.
12. Apart from this, plaintiff has also exhibited certain documents as
Power of attorney as Exhibit-1, sale deed as Exhibit-2, signature of Subash
Chandra Das as Exhibit-2/1, rent receipts as Exhibit-3 to 3/2 and certified
copy of final order in Mutation Case No.48/1997-98 as Exhibit-4.
13. The defendant has appeared and filed written statement challenging
the maintainability of suit as bared by law of limitation as well as principle
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of estoppal, waiver and acquiescence. The defendant has categorically
stated in paragraph-16 of the written statement that his father Meghnath
Yadav has given Rs.4,00,000/- to Paspati Devi and some amount was due
which could not be paid due to the death of Meghnath Yadav and as such,
the sale deed has not been executed in favour of Meghnath Yadav and
since 1980 the defendant is in possession of the suit land, as such, suit be
dismissed.
14. The defendant has examined altogether six witnesses, Mahendra
Yadav as D.W.-1, Gyandhari Yadav as D.W.-2, Bahadur Yadav as D.W-3,
Somen Ghosh as D.W.-4, Shankar Yadav as D.W.-5 and Abhishek Yadav
as D.W.6.
15. Apart from oral evidence, the defendant has also exhibited the
notice issued by Circle Officer Office, Jamtara, which has been brought on
record as Exhibit-A and certified copy of charge-sheet of G.R. Case
No.632/2010 of Jamtara (Mihijam) P.S. as Exhibit-B.
16. The trial court has framed altogether ten issues, which are as
follows:-
(I) Whether the suit maintainable in law?
(II) Whether there is any cause of action for the suit?
(III) Whether the suit is barred by the law of limitation?
(IV) Whether the plaintiff is entitled to declaration right, title and
interest over the properties?
(V) Whether the plaintiff is entitled to recovery of possession of
the properties in suit?
(VI) Whether the plaintiff is entitled to permanent injunction
restraining the defendant from interfering and disturbing the
possession of the plaintiff over the suit land?
(VII) Whether the suit is bad of non- joinder for necessary party?
(VIII) Whether defendant's father Meghnath Yadav, since deceased
has constructed mud built house with the permission of this
landlord Madhusudan Pal?
(IX) Whether on 22.10.1998, Amin had submitted report before
C.O., Jamtara stating that Meghnath Yadav has been living on
plot no.34/11 by constructing mud built house?
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(X) To what other relief or reliefs the plaintiff is entitled to?
17. Appellate court has also framed two issues :-
(i) Whether the plaintiff / respondent is entitled for declaration
of right, title and interest over the suit property or not?
(ii) Whether the plaintiff / respondent is entitled to recovery of
possession of the suit property or not?
18. The learned trial court after due consideration of the material,
decreed the suit in favour of the plaintiff, which was affirmed by the
learned appellate court and against the said judgments / concurrent
findings by the courts below on facts, the appellant has preferred the
present second appeal with limitation petition i.e. I.A. No. 3385/2020 as
well as petition for grant to stay of execution case i.e. I.A. No. 3386/2020.
19. Learned counsel for the appellant has submitted that appellant and
his father Meghnath Yadav is in possession of the land since 1980, though
the plaintiff has purchased the land vide Registered Sale Deed no. 774
dated 26.04.1996 and got mutation order in Mutation Case No.48/1997-
98, which has been marked as Exhibit-4, as such, the possession of the
said land by the appellant cannot be discarded.
20. Learned counsel for the appellant has further submitted that Section
27 of the Limitation Act, operates to extinguish of right to property of a
person, who does not sue for its possession within time allowed by law.
The right extinguish is the right which the lawful owner and against whom
a claim for adverse possession is made.
21. Learned counsel for the appellant has thus submitted that both the
courts below have wrongly considered the fact of the case and gave a
wrong finding, which is contrary to the mandatory provisions of law, as
such, second appeal is maintainable.
22. Learned counsel for the appellant has further submitted that the
documents, which has been filed on behalf of the appellant / defendant i.e.
notice of the Circle Officer Office Jamtara and the certified copy of
charge-sheet submitted against Meghnath Yadav in Mihijam P.S. Case
No.233/2010, G.R. No.632/2010 has not been appreciated by the learned
courts below in correct perspective, as such, the impugned judgment may
be set aside.
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23. After hearing learned counsel for the appellant on length, this Court
considered the entire material brought on record and perused the same.
The trial court has framed ten issues. It appears that defendant has not
come up with a clear case either of an agreement of sale between Paspati
Devi and Meghnath Yadav, father of the defendant/ appellant, or any case
under Specific Performance of Contract has been filed by Meghnath
Yadav or his son Abhishek Yadav. The present appellant, rather without
specifically stated the date with regard to claim of adverse possession, a
plea has been taken by the present appellant without any material brought
on record. The courts below have considered the issue with regard to the
right, title and interest of the plaintiff and declared the same in favour of
the plaintiff. The land has been mutated in the name of the plaintiff. Rent
is being paid to the Government by the plaintiff and to controvert this, no
plea has been taken nor any document has been brought on record by the
defendant, rather a notice issued by the Circle Officer, which has been
brought on record has been made basis to claim possession over the land
and prayed for declaration of title on the basis of adverse possession.
24. This Court is conscious with regard to the concept of adverse
possession as laid down by the Hon'ble Apex Court in the case of
Tribhuvanshankar v. Amrutlal reported in (2014) 2 SCC 788. Paragraph
nos. 36 to 43 of the aforesaid judgment is re-produced herein below:-
36. In Karnataka Board of Wakf v. Govt. of India [Karnataka Board of
Wakf v. Govt. of India, (2004) 10 SCC 779] it has been opined that:
(SCC p. 785, para 11)
"11. ... 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."
Thereafter, the learned Judges observed thus: (Karnataka Board of
Wakf case [Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC
779] , SCC p. 785, para 11)
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"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."
37. It is to be borne in mind that adverse possession, as a right, does not
come in aid solely on the base that the owner loses his right to reclaim
the property because of his wilful neglect but also on account of the
possessor's constant positive intent to remain in possession. It has been
held in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59] .
38. Regard being had to the aforesaid concept of adverse possession, it
is necessary to understand the basic policy underlying the statutes of
limitation. The Acts of Limitation fundamentally are principles relating
to "repose" or of "peace". In Halsbury's Laws of England, 4th Edn.,
Vol. 28, Para 605 it has been stated thus:
"605. Policy of the Limitation Acts.--The courts have
expressed at least three differing reasons supporting the
existence of statutes of limitation, namely: (1) that long dormant
claims have more of cruelty than justice in them, (2) that a
defendant might have lost the evidence to disprove a stale claim,
and (3) that persons with good causes of actions should pursue
them with reasonable diligence."
These principles have been accepted by this Court keeping in
view the statutory provisions of the Indian Limitation Act.
39. The fundamental policy behind limitation is that if a person does not
pursue his remedy within the specified time-frame, the right to sue gets
extinguished. In the present case the pivotal point is whether a good
cause, because a litigant cannot deprive the benefit acquired by another
in equity by his own inaction and negligence, as assumed by the
plaintiff, has been lost forever as he has not been able to prove the
relationship of landlord and tenant in a suit for eviction which includes
delivery of possession.
40. Keeping in view the aforesaid principles it is required to be
scrutinised whether the time spent in adjudication of the present suit and
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the appeal arrests the running of time for the purpose of adverse
possession.
41. In this regard, we may profitably refer to the decision in Sultan
Jehan Begum v. Gul Mohd. [AIR 1973 MP 72] wherein following
principles have been culled out: (AIR p. 74, para 12)
"(1) When a person entitled to possession does not bring a suit
against the person in adverse possession within the time prescribed by
law his right to possession is extinguished. From this it only follows
that if the former brings a suit against the latter within the prescribed
period of limitation his right will not be extinguished.
(2) If a decree for possession is passed in that suit in his favour he
will be entitled to possession irrespective of the time spent in the suit
and the execution and other proceedings.
(3) The very institution of the suit arrests the period of adverse
possession of the defendant and when a decree for possession is passed
against the defendant the plaintiff's right to be put in possession relates
back to the date of the suit.
(4) Section 28 of the Limitation Act merely declares when the right
of the person out of possession is extinguished. It is not correct to say
that that section confers title on the person who has been in adverse
possession for a certain period. There is no law which provides for
'conferral of title' as such on a person who has been in adverse
possession for whatever length of time.
(5) When it is said that the person in adverse possession 'has
perfected his title', it only means this. Since the person who had the
right of possession but allowed his right to be extinguished by his
inaction, he cannot obtain the possession from the person in adverse
possession, and, as its necessary corollary the person who is in adverse
possession will be entitled to hold his possession against the other not in
possession, on the well-settled rule of law that possession of one person
cannot be disturbed by any person except one who has a better title."
42. In Sultan Khan v. State of M.P. [1991 MPLJ 81] a proceeding was
initiated for eviction of the plaintiff under Section 248 of the M.P. Land
Revenue Code, 1959. Facing eviction the plaintiff filed a suit for
declaration of his right, title and interest on the bedrock of adverse
possession. His claim was that he had been in uninterrupted possession
for more than 30 years. Repelling the contention the learned Judge
observed thus: (MPLJ p. 84, para 4)
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"4. ... It must, therefore, be accepted that filing of the suit
for recovery of possession, by itself, is sufficient to arrest the
period of adverse possession and a decree for possession could
be passed irrespective of the time taken in deciding the suit. If
this principle is applied to the proceedings under Section 248 of
the Code, it must be held that in case a person has not perfected
his title by adverse possession before start of the proceedings, he
cannot perfect his title during the pendency of the proceedings.
Adverse possession of the person in possession must be deemed
to have been arrested by initiation of these proceedings."
43. We have referred to the aforesaid pronouncements since they have
been approved by this Court in Babu Khan v. Nazim Khan [(2001) 5
SCC 375 : AIR 2001 SC 1740] wherein after referring to the aforesaid
two decisions and the decision in Ragho Prasad v. Pratap Narain
Agarwal [1969 All LJ 975] , the two-Judge Bench ruled thus: (Babu
Khan case [(2001) 5 SCC 375 : AIR 2001 SC 1740] , SCC p. 384, para
12)
"12. ... The legal position that emerges out of the decisions
extracted above is that once a suit for recovery of possession
against the defendant who is in adverse possession is filed, the
period of limitation for perfecting title by adverse possession
comes to a grinding halt. We are in respectable agreement with
the said statement of law. In the present case, as soon as the
predecessor-in-interest of the applicant filed an application
under Section 91 of the Act for restoration of possession of the
land against the defendant in adverse possession, the defendant's
adverse possession ceased to continue thereafter in view of the
legal position that such adverse possession does not continue to
run after filing of the suit. We are, therefore, of the view that the
suit brought by the plaintiffs for recovery of possession of the
land was not barred by limitation."
25. The Hon'ble Apex Court has further held in the case of Hemaji
Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan reported in (2009) 16
SCC 517. Paragraph nos. 14 to 23 are being reproduced herebelow:-
14. In Secy. of State for India In Council v. Debendra Lal Khan [(1933-
34) 61 IA 78 : AIR 1934 PC 23] it was observed that the ordinary
classical requirement of adverse possession is that it should be nec vi,
nec clam, nec precario and the possession required must be adequate in
continuity, in publicity and in extent to show that it is possession
10
adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC
314] , while following the ratio of Debendra Lal Khan case [(1933-34)
61 IA 78 : AIR 1934 PC 23] , observed as under: (P. Lakshmi Reddy
case [AIR 1957 SC 314] , AIR p. 318, para 4)
"4. ... But it is well-settled that in order to establish adverse
possession of one co-heir as against another it is not enough to
show that one out of them is in sole possession and enjoyment of
the profits, of the properties. Ouster of the non-possessing co-
heir by the co-heir in possession who claims his possession to be
adverse, should be made out. The possession of one co-heir is
considered, in law, as possession of all the co-heirs. When one
co-heir is found to be in possession of the properties it is
presumed to be on the basis of joint title. The co-heir in
possession cannot render his possession adverse to the other co-
heir not in possession merely by any secret hostile animus on his
own part in derogation of the other co-heir's title. It is a settled
rule of law that as between co-heirs there must be evidence of
open assertion of hostile title, coupled with exclusive possession
and enjoyment by one of them to the knowledge of the other so
as to constitute ouster."
The Court further observed thus: (P. Lakshmi Reddy case [AIR 1957 SC
314] , AIR p. 318, para 4)
"4. ... the burden of making out ouster is on the person claiming to
displace the lawful title of a co-heir by his adverse possession."
16. In S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Hidayatullah, J.
speaking for the Court observed as under: (AIR p. 1256, para 5) "5. ... 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. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
17. The facts of R. Chandevarappa v. State of Karnataka [(1995) 6 SCC 309] are similar to the case at hand. In this case, this Court observed as 11 under: (SCC p. 314, para 11) "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 v. State of Karnataka [(1997) 7 SCC 567 :
(1998) 2 CLJ 414] this [Ed.: The extract quoted herein below is taken from the observations of the learned Single Judge of the High Court in an order involved in D.N. Venkatarayappa case, (1997) 7 SCC 567.] Court observed as under: (SCC p. 571b-c, para 3) "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 v. Jagadish Kalita [(2004) 1 SCC 271] this Court observed as under: (SCC p. 277, paras 21-22) "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 12 therein."
20. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] at para 11, this Court observed as under: (SCC p. 785) "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: (SCC p. 785, para 11) "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."
21. In Saroop Singh v. Banto [(2005) 8 SCC 330] this Court observed:
(SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite 13 animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita [(2004) 1 SCC 271] .)"
22. This principle has been reiterated later in M. Durai v. Muthu [(2007) 3 SCC 114] . This Court observed as under: (SCC p. 116, para 7) "7. ... in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570] . The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that: (SCC p. 577, para 20) "20. ... The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
26. The Hon'ble Apex Court in the case of P.T. Munichikkanna Reddy Vs. Revamma reported in (2007) 6 SCC 59. Paragraph nos. 5,6 & 7 of the aforesaid judgment are re-produced hereinbelow:-
5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.
(See Downing v. Bird [100 So 2d 57 (Fla 1958)]; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] Monnot v. Murphy [207 NY 240 : 100 NE 742 14 (1913)] City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)].
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
7. To understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co. [1963 AC 510 : (1962) 2 WLR 1020 :
(1962) 2 All ER 288] can be considered where House of Lords referring to Taylor v. Twinberrow [(1930) 2 KB 16 : 1930 All ER Rep 342] termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: (Fairweather case [1963 AC 510 : (1962) 2 WLR 1020 : (1962) 2 All ER 288] All ER pp. 291 G-292 C) "In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Court in Taylor v. Twinberrow [(1930) 2 KB 16 : 1930 All ER Rep 342] in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of twelve years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is 'merely negative' and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession [see loc. cit. p. 23]. I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.15
If this principle is applied, as it must be, to the appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's term or his rights against or his obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate 'commensurate with' the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which are no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."
Also see Privy Council's decision in Chung Ping Kwan v. Lam Island Development Co. Ltd. [1997 AC 38 : (1996) 3 WLR 448 (PC)] in this regard.
27. Under the aforesaid circumstances, in view of the factual matrix of the case, this Court is conscious of this fact that there is no pleading on behalf of the appellant / appellant / defendant with regard to his possession and requirement of law as laid down by Apex Court in the case of Tribhuvanshankar Vs. Amrutlal reported in (2014) 2 SCC 788. The principle laid down in the said judgment are not in favour the appellant / appellant / defendant nor any evidence has been brought on record to establish that since 1980, the defendant/appellant is in possession of the land, rather the document i.e. Exhibit-4 and Exhibits - 3 to 3/2 are sufficient to hold the possession of the plaintiff / respondent on the suit property, as there is admission on behalf of the defendant that Madhusudan Pal was owner of plot no.34 and sale deed was never executed in his favour by Madhusudan Pal through his power of attorney. On the otherside, the signature of Subash Chandra Das has been marked 16 as Exhibit-2/1 and power of attorney has been marked as Exhibit-1 and the sale deed has been marked as Exhibit-2 on behalf of respondent / respondent / plaintiff. Further admission has been made by the defendant in paragraph-19 of the written statement that plaintiff has purchased suit property from Madhusudan Pal and land has been mutated in favour of the plaintiff.
28. Since there is no ground for interference in the impugned judgment and decree of concurrent finding passed by both the courts below and the courts below have not passed any contrary order to the mandatory provisions of law or contrary to the law or based on inadmissible evidence, this Court under Section 100 C.P.C. is not inclined to interfere in the same. Accordingly, the Second Appeal, being devoid of any merit, is hereby dismissed.
29. Since the appeal has already been dismissed on merits, there is no reason to issue notice for condonation of delay.
30. Accordingly, the limitation petition filed by appellant vide I.A. No. 3385/2020 is hereby dismissed.
31. Since the appeal has already been dismissed, the stay petition i.e. I.A. No. 3386/2020 is accordingly also dismissed.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 25/09/2020 / NAFR Sunil-Jay/-