Jharkhand High Court
Md. Razi vs Rameshwar Pd. Sah on 16 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 278 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.278 of 2009
(Against the Judgment and decree dated 30.04.2009 passed by the learned
District Judge, Dumka in Title Appeal No. 08 of 2008)
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1. Md. Razi, son of late Md. Abdul Mazid
2. Raushan Bibi, wife of Late Md. Khalil
3. Sk. Bablu, son of Sk. Bajool
4. Md. Abu Bakar, son of late Md. Mir Mansoor
5. Md. Raushan Ali, son of Md. Majanu @ Mr. Hyder Ali
6. Md. Kashim son of late Md. Nazir All are the residents of Mohalla-Kumharpara Dumka (T), P.S. + P.O.- Dumka (T), Sub-division & Dist.- Dumka .... .... .... Appellants Versus
1. Rameshwar Pd. Sah, son of Late Ram Briksha Sah
2. Ashok Pd. Sah, son of late Ram Briksha Sah
3. Rajkishore Prasad Sah son of late Ram Briksha Sah All are residents of village- Ratanpur, P.S. + P.O.- Dumka, Sub- division & Dist. Dumka ... .... .... Respondents
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For the Appellants : Mr. Sandeep Verma, Advocate : Ms. Chandana Kumari, Advocate For the Respondents : Mr. Prashant Pallav, Advocate : Mr. Pradyumna Poddar, Advocate
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 30.04.2009 passed by the learned District Judge, Dumka in Title Appeal No. 08 of 2008 whereby and where under, by the said judgment of concurrence, the learned first appellate court has dismissed the appeal and confirmed the judgment and decree passed by the learned trial court being the court of Sub-Judge-I, Dumka in Title Suit No.66 of 2005, 1 Second Appeal No. 278 of 2009 whereby and where under, the learned Sub-Judge-I, Dumka decreed the suit of the plaintiffs filed with a prayer :-
(i) for declaration that the plaintiffs have got title and possession over the suit land (Schedule A) since the time of purchase
(ii) for recovery and delivery of possession over the suit land be given to the plaintiffs through the process of the court
(iii) Temporary injunction be granted against the defendants.
(iv) Any other relief or reliefs, to which the plaintiffs are entitled to.
3. The case of the plaintiffs in brief is that Ram Briksha Sah- the father of the three plaintiffs purchased the suit land from Mathura Sah son of late Doman Sah, Ram Das Sah and Rambilash Sah both sons of Mahtura Sah vide registered sale deed no.3241 dated 30.09.1980 for consideration of Rs.4,000/-. After purchase of the land, Rambriksha Sah deposited Rs.10/- in the Dumka Municipality on 06.01.1981 along with map for its sanction. Rambriksha Sah applied for mutation and vide order dated 07.07.1995 passed in Mutation Case No.67/95-96, the Circle Officer, Dumka mutated the Schedule 'A' land in the name of Rambriksha Sah and rent of Rs.60/- was fixed annually. In the year 1981, there was disturbances because of five persons and a proceeding under Section 144 Cr.P.C. was initiated and the S.D.O., Dumka vacated the prohibitory order in favour of Rambriksha Sah and made the same absolute against the five persons. Again ten persons wanted to take forcible possession of the suit land from the plaintiffs and vide order dated 27.07.1989 in Criminal Misc. Case No.516 of 1989 in a proceeding under Section 144 Cr.P.C., the S.D.O., Dumka vacated the rule in favour of the first party and made the rule absolute against ten persons. The father of the plaintiffs Rambriksha Sah died in the year 2001. On 27.01.2005, the defendants wanted to take forcible possession and in 2 Second Appeal No. 278 of 2009 collusion with musclemen and the local politician, they took forcible possession of part of the suit land. The plaintiff no.1 being the karta of the family filed P.C.R. Case No.51 of 2005 which was sub-judice at the time of filing of the suit. In the said P.C.R. case, cognizance was taken and the defendants being accused persons of that case were released on bail by the orders of the court. The plaintiffs also described the construction made by Rambriksha Sah over the suit land. The defendants to create evidence of their possession over the suit land applied for electric line in their names which was objected to by the plaintiffs and after considering the objection, the electricity authority refused to provide electric connection to the defendants over the suit land. Hence, the plaintiffs filed the said suit.
4. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds and further pleaded that the suit land was recorded as khas Basauri in the name of the then landlord Mr. Gregey Rabertson. The suit land remained vacant. The suit land was never settled in any manner by the then ex-landlord of the aforesaid estate and the suit land was in khas possession of the ex- landlord. The defendants further pleaded that the purchase of land by Rambriksha Sah from Mathura Sah and his two sons was illegal, unlawful and has been a fraudulent transaction and the same cannot create a legal right in favour of the plaintiffs. So there cannot be any valid and lawful mutation either before the Municipality or before the Circle Officer, Dumka. The defendants further pleaded that no notice was ever served upon them in respect of the mutation. The defendants further 3 Second Appeal No. 278 of 2009 pleaded that on 15th June, 1972, the father of the defendants and the father of Sk. Hashim namely Sk. Illiyas constructed their house upon the Schedule 'A' land and began to reside in the same houses separately with their family members without any interruption from any corner. Hence, they have perfected their title over the suit land by remaining on the same for more than 12 years in adverse possession against the plaintiffs, their ancestors or even the ex-landlord of Dumka Estate or the State of Bihar. The defendants denied construction of the hutments over the suit land by Rambriksha Sah. The defendants denied having made any application to the aforesaid department for any electric line.
5. On the basis of the rival pleadings of the parties, the learned trial court framed the following nine issues:-
(i) Is the suit maintainable?
(ii) Whether plaintiffs have valid cause of action for the suit?
(iii) Whether suit is barred by law of limitation?
(iv) Is the suit bad for non-joinder of necessary parties?
(v) Whether plaintiffs are entitled to get a decree of declaration of their right title or interest over the suit land and recovery of possession?
(vi) Whether defendants have perfected their title over suit land through adverse possession?
(vii) Whether plaintiffs are entitled for recovery of possession of the suit land?
(viii) Whether plaintiffs are entitled for permanent injunction over suit property?
(ix) Whether plaintiffs are entitled for any other relief/s?
6. The learned trial court first took up issue nos. (v) and (vi) together and after considering the evidence in the record i.e. the four witnesses examined by the plaintiffs and the documents which have been marked Ext.1 to 9 series as also the witnesses who have been examined by the defendants being the D.W.1 to D.W.3 and the documents which have been marked Ext. A came to the conclusion that the defendants have failed to establish their title by way of adverse possession over the 4 Second Appeal No. 278 of 2009 suit land and the plaintiffs succeeded in proving their title over the suit land. The learned trial court disposed of the issue no. (iii), (iv), (vi) and
(viii) as not pressed. The learned trial court next took up issue no. (i) and
(ii) together and after considering the evidence in the record came to the conclusion that the suit is maintainable and there is cause for action for filing the suit. The learned trial lastly took up issue no. (ix) and came to the conclusion that the plaintiffs are not entitled to any other relief then the one they have prayed for in the plaint and decreed the suit on contest.
7. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.08 of 2008 in the court of District Judge, Dumka which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.
8. The learned first appellate court formulated the following three points for determination:-
(i) Whether plaintiffs/respondents have been able to prove their right title and interest through registered sale deed no.3241 dated 30.09.1980?
(ii) Whether defendants/appellants have been able to prove their title over the suit land through adverse possession?
(iii) Whether plaintiffs/respondents are entitled for relief/s claimed?
9. The learned first appellate court first took up point for determination no.(i) and after independent appreciation of the evidence in the record has observed that the documentary evidence brought on record by the plaintiffs goes to show that the suit land was originally settled by the ex-landlord Dumka estate in favour of Sakli Sahuwain, wife of Mathura Sah through registered deed no.12788 dated 05.02.1944 5 Second Appeal No. 278 of 2009 and on that basis Mathura Sah executed registered sale deed no.3241 dated 30.09.80 in favour of Ram Briksha Sah- the father of the plaintiffs. The learned first appellate court also took aid of the orders passed in the proceedings marked Ext. 6 in favour of the plaintiffs and their ancestors as well as the two proceedings filed under Section 144 Cr.P.C. and the P.C.R. Case No.51 of 2005. The learned first appellate court also considered the oral testimonies of four witnesses examined by the plaintiffs who supported the case of the plaintiffs made out in the plaint and came to the conclusion that the plaintiffs have been able to prove their title through valid purchase which was recognized by the Revenue Authority and on the other hand the defendants failed to establish that in the revisional settlement or at any point of time, suit land was recorded as Government land as pleaded by the defendants and the defendants could not adduce any evidence to show their possession over the suit land since the year 1972 and concurred with the finding of facts recorded by the learned trial court by holding that the defendants have failed to prove their title over the suit land. The learned first appellate court thereafter took up point for determination no.(ii) and considering the fact that the defendants have not adduced any evidence to show specifically on which date or month, they have entered upon the suit land and that the defendants have failed to prove their continuous peaceful possession over the suit land for the period of 12 years and also considering the plea of the defendants that the defendants admitted the ownership of the Government over the suit land, decided the point for determination no.(ii) against the defendants. Lastly, the learned first appellate court 6 Second Appeal No. 278 of 2009 took up point for determination no. (iii) and on the basis of the findings in respect of point for determination nos. (i) and (ii) came to the conclusion that the plaintiffs are entitled for declaration of their right, title and interest over the suit land as well as recovery of possession of the same and decided the point for determination no. (iii) in favour of the plaintiffs and against the defendants and confirmed and upheld the judgment and decree and dismissed the appeal on contest with costs.
10. At the time of Admission of this appeal, the following substantial question of law were framed vide order dated 09.11.2017 :-
(1) Whether the learned courts below committed grave illegality in passing the impugned judgment as the suit in based by Limitation and the learned court was bound to decide the said issue no. (iii) in terms of Order XVI, Rule-2 C.P.C?
11. Mr. Sandeep Verma, learned counsel for the appellants submits that there is some typographical error in the substantial question of law formulated by the predecessor Judge of this Court and the word 'based' is 'barred' and the order 'XVI' be read as 'VI'.
12. This fact is not disputed by the learned counsel for the respondents.
13. Taking into consideration the facts of the case, I find substance in the submission of the learned counsel for the appellants. Accordingly, the substantial question of law formulation with the correction as suggested by the learned counsel for the appellants reads as under:-
"Whether the learned courts below committed grave illegality in passing the impugned judgment as the suit is barred by Limitation and the learned court was bound to decide the said issue no. (iii) in terms of Order VI, Rule-2 C.P.C?
14. Mr. Sandeep Verma, learned counsel for the appellants 7 Second Appeal No. 278 of 2009 relied upon the judgment of Hon'ble Supreme Court of India in the case of V. Prabhakara v. Basavaraj K. (Dead) by LRs. & Anr. reported in (2022) 1 SCC 115, wherein the Hon'ble Supreme Court of India has observed in paragraph no.20 and 21 as under:-
20. Order 6 of the Code while defining the word "pleading" makes it applicable on even terms to both a plaint and written statement. Every pleading under Order 6 Rule 2 shall contain a statement of material facts on which a party relies either for his claim or defence. Such a pleading should contain the necessary foundation for raising an appropriate issue. Under Order 8 Rule 2 a defendant shall make specific pleadings while under Rule 3 a denial should be specific. Rule 4 prohibits an evasive denial and Rule 5 speaks of consequences of not denying specifically an averment in a plaint leading to presumption of an admission.
21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings.
The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal [Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 : (2009) 5 SCC (Civ) 927] : (SCC pp. 497 & 500, paras 15 & 23) "15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul [Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735] : (AIR p. 738, para 10) '10. ... If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce 8 Second Appeal No. 278 of 2009 considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another.' ***
23. [Ed. : Para 23 corrected vide Official Corrigendum No. F.3/Ed.B.J./89/2009 dated 17-7-2009.] alo ya have it was the this is because of collision. The the appellant nine edition is a program Priya caught in couple of quick appeals are harmless preferred any such It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc. which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property "A", court cannot grant possession of property "B". In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
and submits that as the plaintiffs have not pleaded in the plaint that the suit land was originally settled by the ex-landlord Dumka estate in favour of Sakli Sahuwain, wife of Mathura Sah through registered deed no.12788 dated 05.02.1944, both the courts below erred by relying upon the portion of the evidence in this regard in the record which has been mentioned in the recital of the sale deed which has been marked Ext. 1.
15. In this respect, Mr. Verma also relied upon the judgment of Hon'ble Supreme Court of India in the case of Bachhaj Nahar v. Nilima Mandal & Anr. reported in (2008) 17 SCC 491, paragraph nos.12 and 13 of which reads as under:-
"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of 9 Second Appeal No. 278 of 2009 the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
16. Mr. Verma next relied upon the judgment of Hon'ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others reported in (2004) 10 SCC 779, paragraph no.11 and 12 of which reads as under :-
"11. Xxxxx 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 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 10 Second Appeal No. 278 of 2009 rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] .) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that:
(SCC p. 527, para 5) "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar [(1996) 1 SCC 639] that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4) "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
and submits that a plaintiff filing a title suit should be very clear about the origin of the title over the property and as in this case, the plaintiffs have failed to plead the origin of their title i.e. the suit land was originally settled by the ex-landlord Dumka estate in favour of Sakli Sahuwain, wife of Mathura Sah through registered deed no.12788 dated 05.02.1944, Hence, both the courts below erred by decreeing the suit of the plaintiffs.
11 Second Appeal No. 278 of 2009
17. It is next submitted by Mr. Verma, the learned counsel for the appellants that since the suit was filed in the year 2005 and the defendants have perfected their title by way of adverse possession somewhere in the year 1984. So, the suit of the plaintiffs is hopelessly barred by Limitation. Hence, both the courts below erred by failing to return the finding that the suit of the plaintiffs is barred by limitation. Hence, the impugned judgment and decree passed by both the courts below being not sustainable in law be set aside and the suit of the plaintiffs be dismissed.
18. Mr. Prashant Pallav, learned counsel for the respondents on the other hand defended the impugned judgment and decree. Relying upon the judgment of Hon'ble Punjab & Haryana High Court reported in 2014 SCC OnLine P&H 11723, it is submitted by Mr. Pallav that there is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facts probantia (the facts by means of which they are proved, i.e. particulars or evidence) and further submits that it is settled law that pleadings must contain only facta probanda and not facta probantia. Mr. Pallav further submits that the material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings but the facts or facts by means of which facts probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings and such facts are not the facts in the suit but only relevant facts required to be proved at the trial in order to establish the fact in issue.
19. It is then submitted by Mr. Pallav that the title in respect of 12 Second Appeal No. 278 of 2009 the suit property did not accrue to the plaintiffs or their ancestors through the settlement made in the suit land by the ex-landlord Dumka estate in favour of Sakli Sahuwain, wife of Mathura Sah through registered deed no.12788 dated 05.02.1944 but the title in respect of the suit land accrued in favour of the plaintiffs only by execution of the sale deed by Mathura Sah and his two sons in favour of the father of the three plaintiffs vide sale deed no.3241 dated 30.09.1980 and this title of the plaintiffs is supported by the mutation of the land in favour of the father of the plaintiffs vide order dated 07.07.1995 passed in Mutation Case No.67/95-96. It is next submitted by Mr. Pallav that thus in fact, the issue in the suit is that of acquisition of title of the plaintiffs and only because the defendants took the plea that the father of the plaintiffs had no ownership of the suit land, hence, the fact that the suit was originally settled by the ex-landlord Dumka estate in favour of Sakli Sahuwain, wife of Mathura Sah by the concerned registered sale deed has become a relevant fact. Hence, both the courts below has not committed any error by relying upon the same which was mentioned in the recital of the sale deed which has been marked Ext. 1 and Ext. 1 was admitted in evidence and the entire contents of the Ext. 1 were relevant facts as rightly being considered by both the courts below. Mr. Pallav next relied upon the judgment of Hon'ble Supreme Court of India in the case of Narendra and Others vs. Ajabrao S/o Narayan Katare (dead) Through LRs. reported in (2018) 11 SCC 564, paragraph no.18, 19 and 23 of which reads as under :-
"18. Second, the High Court failed to see that a plea of adverse possession is essentially a plea based on facts and once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding 13 Second Appeal No. 278 of 2009 is binding on the second appellate court. It is more so as it did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here.
23. In T. Anjanappa v. Somalingappa [T. Anjanappa v. Somalingappa, (2006) 7 SCC 570] , this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners' title."
and submits that since the plea of adverse possession of the defendants-appellants is essentially the plea based on facts and as both the courts below on appreciating the evidence in the record has returned a finding, such the finding is binding on the second appellate court as there is no substantial question of law involved in the said concurrent finding of facts returned by both the courts below. More so, when such finding cannot be said to be a wholly perverse finding to such an extent that no judicial person could ever record such finding nor such finding is against any settled principle of law or the pleadings or evidence.
20. It is further submitted by Mr. Pallav that it is a settled principle of law that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirements of acquisition of title by adverse possession is that such possessions are in denial of the title of the true owners. It is next submitted by Mr. Pallav that as it is the case of the defendants that the 14 Second Appeal No. 278 of 2009 Government is the real owner of the property, firstly, the title of adverse possession cannot be passed in favour of the defendants in the absence of the real owner being the State being impleaded as a party to the suit. It is further submitted by Mr. Pallav that the plaintiffs in the suit does not pray for a decree in rem rather it is a decree in personam. Under such circumstances, the suit is to be decreed in favour of the person who is having a better title and that does not debar a person who is having still better title than the succeeding party in a suit, to institute a fresh suit if such party is still having a better title than the successful party of the earlier suit and as the preponderance of probabilities tilted in favour of the plaintiffs, both the courts below have rightly decided the suit in favour of the plaintiffs by declaring the right, title and interest of the plaintiffs over the suit land and also for recovery of possession of the suit land. Mr. Pallav then submitted that the cause for action for the plaintiffs to file the suit accrued only on 27.01.2005 when the possession of the plaintiffs over the suit land was disturbed by the defendants and the suit was filed on 06.07.2005. So by no stretch of imagination, it can be said that the suit is barred by limitation. It is then submitted by Mr. Pallav that the fact remains undisputed that the defendants being very much aware about the settled principle of law did not press the issue no. (iii) - which is the issue of limitation, before the learned trial court and the issue of limitation was also not agitated by the defendants- who were the appellants before the learned first appellate court, in the first appeal. Having not done so, for the first time, it is not open for the defendants to raise the issue of limitation in this second appeal. Hence, it is submitted 15 Second Appeal No. 278 of 2009 by Mr. Pallav that this appeal being without any merit be dismissed.
21. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge moreover Animus possidendi under hostile colour of title is also required; as has been observed by the Hon'ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:-
"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, S.A.No.16 of 1998 (R) 9 knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession." (Emphasis supplied)
22. It is also a settled principle of law that 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 16 Second Appeal No. 278 of 2009 factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed as has been held by the Hon'ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others (2004) 10 SCC 779, paragraph no.11 of which has already been quoted in the foregoing paragraphs in the judgment.
23. Since both the courts below for valid reasons did not accept the plea of the defendants that they have perfected their right by way of adverse possession over the suit land because of their failure to bring on record any evidence to suggest that as to on which date they came in possession of the suit land and in what manner they possessed the suit land. Further the defendants themselves were not sure as to who was the real owner of the suit land and if as it appears from their pleadings that the State is the owner of the suit land then it remain incongruous as to what made them not to implead the State as a party to the suit and certainly, if it is the case of the defendants that State is the real owner of the suit land then the right of adverse possession of the defendants cannot be recognized in the absence of the State as a party to the suit.
24. The plaintiffs have pleaded specifically that the cause for action of the suit arose on 27.01.2005 when the possession of the plaintiffs was interfered with by the defendants and the suit was filed on 06.07.2005 i.e. within six months from the cause of action. So by no stretch of imagination, it can be said that the suit is barred by limitation. Otherwise also, the defendants having not pressed the issue of limitation before the learned trial court as is evident from the judgment of the 17 Second Appeal No. 278 of 2009 learned trial court nor they agitated the same before the learned first appellate court certainly, the concurrent finding of fact recorded by both the courts below in favour of the plaintiffs, the same is not opened to be agitated for the first time in the second appeal.
25. So far as the contention on the applicability of Order VI Rule-2 of Code of Civil Procedure in concerned, it is a settled principle of law that the words "material facts" as appearing in Rule 2 of Order VI of Code of Civil Procedure means all facts upon which the plaintiff's cause of action or the defendant's defence depends, which in other word means, all those facts which must be proved in order to establish the existence of the cause of action or the defence. Particulars on the other hand are details of the case setup by the party.
26. It is also a settled principle of law that facts in anticipation of the opponents answer are not to be pleaded. A party should not plead facts which have not become material at the stage of filing the pleadings. So in this case, the plaintiffs have filed the suit for declaration of right, title and interest basing upon the sale deed executed by Mathura Sah and his two sons only because the defence of the defendants that the vendors of the plaintiffs were not owners of the land sold by them. The fact that the suit land was settled by ex-landlord in favour of Sakli Sahuwain, wife of Mathura Sah becomes a relevant fact.
27. Under such circumstances, this Court is of the considered view that no error has been committed by the courts below by relying upon the recital of the sale deed marked Ext. 1.
28. In view of the discussions made above, the sole substantial 18 Second Appeal No. 278 of 2009 question of law as framed by the predecessor Judge vide order dated 09.11.2017 being whether the learned courts below committed grave illegality in passing the impugned judgment as the suit is barred by Limitation and the learned court was bound to decide the said issue no.
(iii) in terms of Order VI, Rule-2 C.P.C. is answered in the negative.
29. In view of the discussions made above, this Court is of the considered view that this appeal being without any merit is dismissed on contest but under the circumstances without any costs.
30. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th November, 2022 AFR/ Sonu-Gunjan/-
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