Allahabad High Court
Gaya Prasad vs Nathu Singh And Others on 25 March, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 31.10.2018 Delivered on 25.03.2019 Court No. - 34 Case :- SECOND APPEAL No. - 3695 of 1978 Appellant :- Gaya Prasad Respondent :- Nathu Singh And Others Counsel for Appellant :- Dhruv Narain, A.K. Tewari, D.K.Verma, H.S.Nigam, K.K. Bajpai, P.K. Singh, R.B. Trivedi, Saurabh Srivastava, Suresh Chandra Verma, V. Bajpai, V.K.Gupta Counsel for Respondent :- Radha Krishna, K.N.Tripathi, Neeraj Tripathi, Ranvir Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri Suresh Chandra Verma, learned counsel for appellant and Sri B.N. Agarwal, learned counsel for respondents.
2. This is a plaintiff's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "Code") arising from judgment and decree dated 16.08.1978 passed by Sri R.C. Agarwal, IInd Additional District Judge, Etawah in Civil Appeal No. 71 of 1975. By impugned order, First Appellate Court has allowed defendant's appeal and set aside judgement and decree dated 26.08.1975 passed by Sri Brij Bhushan Singh Sisodiya, Civil Judge, Etawah.
3. Civil Judge, Etawah had decreed suit granting relief of cancellation of sale-deed dated 12.08.1969 executed by defendant-2 in favour of defendant-1 in respect of disputed property and an injunction, as prayed by plaintiff, was also granted but the same has been reversed by Lower Appellate Court (hereinafter referred to as "LAC") and suit has been dismissed.
4. Plaintiff-appellant, Gaya Prasad instituted Original Suit (hereinafter referred to as "OS") No. 21 of 1971 in the Court of Civil Judge, Etawah vide plaint dated 22.07.1971 impleading Nathu Singh as defendant-1 and Raja Ram as defendant-2 for cancellation of sale-deed dated 12.08.1969 registered on 17.10.1969 executed by Raja Ram, defendant-2 in favour of Nathu Singh-defendant-1 and seeking eviction of defendants from disputed property and delivery of possession to plaintiff.
5. Plaint case set up by plaintiff-appellant is that House No. 51 (Old No. 47) alongwith Sahan situated at Mohalla-Garhaiya, Town Auraiya, District-Etawah was in ownership and possession of plaintiff since the time of his ancestors. Some part of house was ruined and remaining constructed part, which remained intact, consisted of two rooms in which tenants of plaintiff were residing. In one of the rooms, defendant-2 was residing. He was in possession in the capacity of tenant. Plaintiff-appellant instituted Suit No. 27 of 1969 against defendant-2 in the Court of Munsiff, Etawah for eviction and recovery of rent, which was pending. During pendency of suit, defendant-2 executed sale-deed dated 12.08.1969 in favour of defendant-1 which is forged and fictitious since defendant-2 has no right to execute such sale-deed which is in ownership of plaintiff, therefore, sale-deed is liable to be cancelled.
6. Suit was contested by both defendants by filing their separate written statements.
7. Defendant-2 in the written statement dated 31.07.1972 denied title of plaintiff-appellant and that the defendant-2 was a tenant in a part of disputed house. In additional pleas, it was pleaded that disputed property was owned by Mahadevi, widow of Battan Babu, who allowed defendant-2 to reside in disputed property about 30-31 years back. It is defendant-2 who constructed two rooms and was residing. He also let out building at some point of time. Plaintiff also got permission (Izazatnama) from Mahadevi and Jagdish Narayan, who were Zamindars of disputed property. With permission of both, defendant-2 was in possession of disputed property. Defendant-2 executed sale-deed in favour of defendant-1. There is no rent deed or agreement between plaintiff and defendant-2 and if any such deed is existing, the same is forged and fictitious. Plaintiff filed Suit No. 159 of 1967 for rent and eviction in the Court of Munsiff, Etawah which was dismissed and, therefore, plaintiff has no right over the property in dispute. Defendant-2 also said that he was in possession of disputed property, openly, to the knowledge of plaintiff as owner. for the last more than 12 years and, therefore, has matured his right and title over disputed property and suit is barred by limitation.
8. Defendant-1 in the written statement dated 07.12.1971 also pleaded similarly and it was specifically said that plaintiff has no right over property in dispute. He also pleaded that disputed property was sold to defendant-2 by erstwhile owner on 12.08.1969 and, therefore, he had a right to further sell disputed property to defendant-1.
9. Trial Court formulated eleven issues as under :-
"i. Whether the plaintiff is the owner of the house in suit?
ii. Whether the defendant no. 2 was the tenant of the plaintiff as alleged in the plaint?
iii. Whether the suit is barred by principle of re-judicata as alleged in para 17 of the written statement of defendant No.1 ?
iv. Whether the suit is barred by Order II Rule 2 C.P.C. as alleged in para 18 of the written statement of defendant No. 1?
v. Whether the suit is barred by the principle of estoppel as alleged in para 19 of the written statement of defendant No.1?
vi. Whether the suit is barred by Section 41 of Transfer of Property Act?
vii. Whether the defendant No. 2 has perfected his title by adverse possession?
viii. Whether the sale deed in question is liable to be cancelled?
ix. To what relief is the plaintiff entitled?
x. Whether the plaintiff is in possessionary title over the property in suit, if so, whether the suit is within time?
xi. Whether the suit is over valued as pleaded in written statement, if so, its effect?" (Emphasis Added)
10. Issue-11 relating to valuation was taken up as a preliminary issue and decided vide order dated 31.08.1974 pursuant whereto plaintiff made amendment in the suit and got valuation corrected. Issues-3 and 4 were also taken as preliminary issues and answered by Trial Court vide judgment dated 28.08.1972 holding that suit is neither barred by Order II Rule 2 nor by principle of resjudicata, hence, both issues were answered against defendants.
11. Thereafter, issues-1 and 10 were taken together which are substantial issues on merits of the matter. Plaintiff's case in the evidence was that disputed house is his ancestral property and since 1909, his ancestors and thereafter he had been letting out the same. In order to seek clarification as to how plaintiff or his forefather became owner of disputed property, a clarification was sought and in the statement made under Order 10 Rule 2 of CPC, it was stated by plaintiff that disputed house was donated by one Kamta Prasad to plaintiff's grandfather, Sri Girdhari Lal. It was also stated that old construction got ruined in early 1950's and plaintiff's father, in 1955, reconstructed two rooms. Trial Court recorded a finding that no direct evidence has been led by plaintiff to show that disputed property originally belong to Kamta Prasad and he donated the same to plaintiff's grandfather. However, looking into other evidence that plaintiff's ancestors and plaintiff were dealing with the disputed property in various manner, from time to time, he recorded a finding that plaintiff is owner or held right as possessory title over disputed property. Both issues-1 and 10 were answered in favour of plaintiff, accordingly.
12. Issue-2 was answered holding that defendant-2 was admitted to a portion of disputed house as tenant in the year 1963. Issue-7 was decided against defendant-2 holding that suit is within time and defendant-2 had not perfected his title by adverse possession. Answering issue-5, Trial Court held that suit is not barred by estoppel. Issue-6 was also answered in favour of plaintiff holding that suit is not barred by Section 41 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882"). Consequently, issue-8 was answered against defendant-1 holding that sale-deed executed by defendant-2 is void for want of competency of defendant-2, hence, sale deed is liable to be cancelled. In view thereof, suit was decreed.
13. Defendant-1, Nathu Singh, preferred Civil Appeal No. 71 of 1975. It appears that before Appellate Court, plaintiff-appellant sought to file some additional evidence i.e copy of sale deed but this evidence was not admitted by LAC and application was rejected vide order dated 29.01.1977. Similar application i.e Paper No. 35(c) was also filed which was again rejected vide order date 28.07.1977.
14. In order to decide appeal, LAC, formulated five points for determination :-
"i. Whether the plaintiff or the defendant-respondent no. 2 was the owner of the disputed house and whether the defendant-respondent no. 2 was only a tenant on behalf of the plaintiff-respondent?
ii. Whether the defendant no. 2, in the alternative, had perfected his title by adverse possession?
iii. Whether the defendant-respondent no. 2 was competent to execute the sale-deed in favour of the defendant-appellant and it was executed for consideration? If so its effect?
iv. Whether the suit is barred by estoppel?
v. Whether the defendant-appellant is a bonafide purchaser for value without notice of the plaintiff's title and if so, is the suit barred by Section 41 of the Transfer of Property Act ?"
15. It considered points-1 and 2 together. LAC found that Sri Battan was son of Kamta Prasad and Mahadevi was wife of Sri Battan. PW-1 Gaya Prasad i.e. defendant-2 in his oral deposition has stated that house was initially owned by Kamta Prasad who had only disputed house and none other. Simultaneously, he tried to deny relationship of Battan with Kamta Prasad that he was son of Kamta Prasad or that Mahadevi was widow of Battan. PW-2, Chottey Lal, however, in his oral deposition admitted that Battan was son of Kamta Prasad and Mahadevi was wife of Battan. From these facts, LAC observed that Trial Court's finding that there was no evidence that disputed house belong to Kamta Prasad is perverse and reversing the said finding, it answered points-1 and 2 against plaintiff-appellant and in favour of defendants. LAC held that plaintiff failed to prove its title or ownership and admittedly defendant-2 was in possession, therefore, he had a right to transfer possession to defendant-1 and suit for dispossession of defendant filed by plaintiff could not have been decreed. Therefore, points-1 and 2 both were answered against plaintiff-appellant. As a consequence thereof, points-3 and 5 were also answered in favour of defendants that Raja Ram was in possessionary title, had a right to execute sale deed in favour of defendant-1 and suit was barred by Section 41 of Act, 1882. Coming to point-4, LAC held that since it was admitted case that defendant-1 had purchased disputed property from defendant-2 vide sale-deed dated 12.08.1969 and it was also found from evidence that defendant-1 has reconstructed boundary wall and raised further constructions, hence, suit was also barred by principle of estoppel. Consequently, appeal was allowed and judgment of Court below has been set aside.
16. This appeal was admitted by treating grounds- 6 and 8 as substantial questions of law which read as under:-
"6. Whether the possession of the defendant No.2 being permissive, he could not lay any adverse title to the same.
8. Whether the Lease Deeds Ext. 9 to 13 on record being more than 20 years old, were rightly relied upon by the Trial Court. The same have been illegally discarded as being concocted, without any evidence on record by the Lower Appellate Court."
(Emphasis Added)
17. So far as defendant-1, Nathu Singh, is concerned, he has claimed title over disputed property on the basis of sale deed dated 12.08.1969 registered on 17.10.1969 which was executed by defendant-2, Raja Ram.
18. This Court has to examine whether defendant-2 was competent to execute sale-deed having any title over disputed property. For this purpose, I have gone through written statement filed by Raja Ram, defendant-2. In paras- 1 and 17(a) of written statement, title and ownership of plaintiff-appellant has been denied and it is also said that he was never in possession over the disputed property. In paras- 3 and 7(c) of written statement, defendant-2 stated that he has never resided in disputed house in the capacity of a tenant. In para-13 of written statement taking additional pleas, defendant-2, Raja Ram has said that disputed property was owned by Ms. Mahadevi, widow of Battan Babu, about 30-31 years back. She allowed defendant-2 to reside in the disputed house. Thereafter, defendant-2 got two rooms constructed and started to reside therein. He also let out rooms from time to time. Disputed property is said to be in the ownership of Jagdish Narayan, Zamindar, (बूढ़ादाना) Budhadana and, therefore, defendant-2 got Izazatnama executed by Mahadevi and Jagdish Narayan about 23 years back and hence, got possession of disputed property by all means. Plaintiff has never executed any lease-deed or rent deed in favour of defendant-respondent-2 and if he produces any such document, the same is fictitious and this has been pleaded in para- 16 of written statement. In para-18, it is said that plaintiff has no possession over disputed property in the preceding 12 years and it is defendant-2 who is in possession of disputed property for 12 years and more, and now, defendant-respondent-1 is in possession, therefore, suit is liable to be dismissed.
19. Written statement of defendant-2 is dated 31.07.1972. Period of 30-31 years, pleaded by defendant-2 in para 30, would take it to 1941-42 and period of 23 years take it to 1949-50.
20. The above pleadings clearly show that defendant-2 did not claim that he was transferred title of disputed property by erstwhile owners. As per his own admission, he was permitted to reside in the disputed house by Ms. Mahadevi, widow of Battan Babu, and if alleged Izazatnama is to be taken into consideration, permission was also granted by Jagdish Narayan, erstwhile Zamindar. Occupation of disputed house by defendant-respondent-2, therefore, is apparently permissive.
21. On behalf of defendants, Sri Aaley Hasan DW-1, Sri Munshi Lal DW-2, Sri Sudarshan Lal DW-3, Sri Nathu Singh DW-4, Sri Daulat Ram DW-5 and Sri Raja Ram DW-6 were examined.
22. DW-2, Munshi Lal stated that he was employed under Chaudhary Jagdish Narayan from 1932 to 1952. Disputed house was owned by Chaudhary Jagdish Narayan but Mahadevi used to reside therein till 1956. Thereafter, she went to Lucknow. He also said that "jktkjke dks VwVk QwVk edku e; tehu ds jgus dks fn;k x;k FkkA^^"
"The house along with appurtenant land was given to Raja Ram in damaged state." (English Translation by Court)
23. He also said that statement was given by DW-2 on 30.04.1975 when Chaudhary Jagdish Narayan was alive, and it is difficult to understand as to why he (Jagdish Narayan) was not produced as witness.
24. DW-6, Raja Ram himself admitted in oral deposition that house in dispute belong to Mahadevi and Jagdish Narayan who allowed him to reside therein in 1946 and he got possession of disputed house. Relevant extract of his statement reads as under:-
"fookfnr edku igys egknsoh o txnh'k ukjk;u dk FkkA mu yksxksa us lu 1946 esa eq>s jgus ds fy, txg ekWxus ij eq>s jgus dh btktr ns nhA lu~ 1946 esa edku fookfnr esa esjk dCtk gks x;kA eSus mu yksxksa dks 75:0 ns fn;k FkkA rhu lky ds ckn lu~ 1949 esa ,d btktrukek eSus muls fy[kok;k FkkA^^ "Earlier disputed house belonged to Mahadevi and Jagdish Narayan. On demand of land, they had given permission to me to reside in 1946. In 1946, I took possession of disputed house. I had given them a sum of Rs. 75/-. After three years in 1949, I got executed a permission deed." (English Translation by Court)
25. It has also come on record in oral deposition of PW-2, Chottey Lal that Battan Lal was son of Kamta Prasad and husband of Maha Devi.
26. Thus, the facts as proved, and duly admitted in the pleadings of defendant-respondent-2, as also the witnesses, are that disputed house belong to Kamta Prasad Agarwal, who had a son Battan Babu. Mahadevi, widow of Battan Babu, used to reside in the disputed house. Mahadevi permitted defendant-respondent-2 to reside in the house is also a fact, admitted by defendant-2 himself. If permission is treated not to confer status of a tenant, then at the best defendant-respondent-2 was allowed to reside in the house as a "licencee". By all means, possession is permissive and that being so, I have no hesitation in answering question-1 that possession of defendant-respondent-2 was permissive. Once possession of a person is permissive, question of title by "adverse possession" does not arise.
27. A person other than owner, if continued to have possession of an immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallize in ownership after the expiry of the prescribed period or limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law. 'Permissible possession' shall not mature a title since it cannot be treated to be an 'adverse possession'. Such possession, for howsoever length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession.
28. The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by in P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [Radhamoni Debi Vs. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case before Court in P. Lakshmi Reddy (supra) was that of co-heirs where the plea of adverse possession was set up. In this regard it was held:
"But it is well settled 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 the 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 of his own part in derogation of the other co-heir title. It is 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." (Emphasis Added)
29. In Thakur Kishan Singh Vs. Arvind Kumar, AIR 1995 SC 73, Court said:
"A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession."
(Emphasis Added)
30. In Saroop Singh Vs. Banto and others, 2005(8) SCC 330, Court held in para 30:
"30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . . ."
31. In T. Anjanappa and others Vs. Somalingappa and another 2006 (7) SCC 570, the pre-conditions for taking plea of adverse possession has been summarized as under:
"It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese 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." (Emphasis Added)
32. In P.T. Municipal Reddy & Ors. Vs. Revamma & Ors. AIR 2007 SC 1753, it was held:
"It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner." (Emphasis Added)
33. In the above case, Court discussed the law in detail and observed:
"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." (Para 5) "Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion 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."(Para 6) "Therefore, to assess a claim of adverse possession, two pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property" (Para 9) (Emphasis Added)
34. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), Court held that if the defendants are not sure who is the true owner, the question of their being in hostile possession and the question of denying title of the true owner do not arise. It also referred on this aspect its earlier decision in Des Raj and others vs. Bhagat Ram(Dead) by LRs. and others 2007(3) SCALE 371 and Govindammal v. R. Perumal Chettiar and others JT 2006(1) SC 121.
35. In Annakili Vs. A. Vedanayagam and others, AIR 2008 SC 346, Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. "Animus possidendi" is held to be a requisite ingredient of adverse possession, well known in law. Court held:
"It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."
(Emphasis Added)
36. In Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395, Court said:
". . . . for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession." (Emphasis Added)
37. In Chhote Khan & others Vs. Mal Khan & others AIR 1954 SC 575, Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers.
38. Court in P. Lakshmi Reddy (supra) quoted with approval Mitra's Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at page 159, quoting from Angell on Limitation:
"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."
39. It further held:
"Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus." (Emphasis Added)
40. In Karbalai Begum Vs. Mohd. Sayeed (1980) 4 SCC 396 in the context of a co-sharer, it was held:
"...It is well settled that mere non- participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession."
41. In Annaliese Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543, Court, in para 15, said:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." (Emphasis Added)
42. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496, Court in paras 27 and 28, held:
"27...it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law." (Emphasis Added)
43. In Roop Singh Vs. Ram Singh (2000) 3 SCC 708, it was held that if the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. Court relied on its earlier decisions in Thakur Kishan Singh (supra).
44. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC 62, in para 7 and 9, Court held:
"...It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers."
"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied." (Emphasis Added)
45. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the defendant to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1 SCC 271 with reference to a case dealing with such an issue amongst co-sharers it was observed that "Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription".
46. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
47. In Amarendra Pratap Singh Vs. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 = (2004) 10 SCC 65, considering as to what is adverse possession, Court in para 22 observed :
"What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession."(Emphasis Added)
48. However, Court further observed that if property, by virtue of some statutory provisions or otherwise, is inalienable, the plea of adverse possession may not be available and held. :
"23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of 'dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section." (Emphasis Added)
49. In L.N. Aswathama & another Vs. V.P. Prakash JT 2009 (9) 527, Court, in para 17 said:
"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
(Emphasis Added)
50. Further, in para 25 the Court said :
"25. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit."
51. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy the requirement of adverse possession, the person claiming it must prove as to how and when adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del. 19). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was stressed upon the Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. [See Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma and Others AIR 1996 SC 869].
52. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse. The reason is that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of other's title make his possession adverse so as to give himself the benefit of the statute of limitation. A person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all.
53. Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation.
54. In Ramzan & Ors. Vs. Smt. Gafooran Ors. AIR 2008 All 37, this Court has held that unless there is specific plea and proof that adverse possession has disclaimed his right and asserted title and possession to the knowledge of the true owner within the statutory period and the true owner has acquiesced to it, the adverse possessor cannot succeed to have it established that he has perfected his right by prescription. Where the adverse possessor was not sure as to who was the true owner and question of his being in hostile possession, then the question of denying title of true owner does not arise. Relevant paras 27, 29 and 30 of the said judgment read as follows:
"27. It is, therefore, explicit that unless there is specific plea and proof that adverse possessor has disclaimed his right and asserted title and possession to the knowledge of the true owner within a statutory period and the true owner has acquiesced to it, the adverse possessor cannot succeed to have it established that he has perfected his right by prescription."
"29. As pointed out above, where the defendants are not sure who is the true owner and question of their being in hostile possession then the question of denying title of true owner does not arise. At the most, the defendants have claimed and which is found to be correct by the trial court that they have been in possession of the disputed property since the inception of the sale deeds in their favour. They came in possession, according to their showing, as owner of the property in question. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no stretch of imagination, it can be said that they claimed their title adverse to the true owner."
"30. Viewed as above, on the facts of the present case, the possession of the contesting defendants is not of the variety and degree which is required for adverse possession to materialise." (Emphasis Added)
55. In A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. Relevant para 5 of judgment reads as follows:
"5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissible possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs."
(Emphasis Added)
56. In Goswami Shri Mahalaxmi Vahuji Vs. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025, Court held that a party cannot be allowed to set up a case wholly inconsistent with that pleaded in its written statement. Relevant para 8 of the said judgment reads as follows:
"8. We may now proceed to examine the material on record for finding out 'the true character of the suit properties viz. whether they are properties of a public trust arising from their dedication of those properties in favour of the deity Shree Gokulnathji or whether the deity as well as the suit properties are the private properties of Goswami Maharaj. In her written statement as noticed, earlier, the Ist defendant took up the specific plea that the idol of Shree Gokulnathji is the private property of the Maharaj the Vallabh Cult does not permit any dedication in favour of an idol and in fact there was no dedication in favour of that idol. She emphatically denied that the suit properties were the properties of the deity Gokulnathji but in this Court evidently because of the enormity of evidence adduced by the plaintiffs, a totally new plea was taken namely that several items of the suit properties had been dedicated to Gokulnathji but the deity being the family deity of the Maharaj, the resulting trust is only a private trust. In other words the plea taken in the written statement is that the suit properties were the private properties of the Maharaj and that there was no trust, private or public. But the case argued before this Court is a wholly different one viz., the suit properties were partly the properties of a private trust and partly the private properties of the Maharaj. The Ist defendant cannot be permitted to take up a case which is wholly inconsistent with that pleaded. This belated attempt to bypass the evidence adduced appears to be more a manor than a genuine explanation of the documentary evidence adduced. It is amply proved that ever since Mathuranathji took over the management of the shrine, two sets of account books have been maintained, one relating to the income and expenses of the shrine and the other relating to that of the Maharaj. These account books and other documents show that presents and gifts used to. be made to the deity as well as to the Maharaj. The two were quite separate and distinct. Maharaj himself has been making gifts to the deity. He has been, at times utilising the funds belonging to. the deity and thereafter reimbursing the same. The account books which have been produced clearly go to show that the deity and the Maharaj were treated as two different and distinct legal entities. The evidence afforded "by the account books is tell-tale. In the trial court it was contended on behalf of the Ist defendant that none of the account books produced relate exclusively to the affairs of the temple. They all record the transactions of the Maharaj, whether pertaining to his personal dealings or dealings in connection with the deity. This is an obviously untenable contention. That contention was given up in the High Court. In the High Court it was urged that two sets of account books were kept, one relating to the income and expenditure of the deity and the other of the Maharai so that the Maharai could easily find out-his financial commitments relating to the affairs of the deity. But in this Court Mr. Narasaraju, learned Counsel for the appellant realising the untenability of the contention advanced in the courts below presented for our consideration a totally new case and that is that Gokulnathji undoubtedly is a legal personality; in the past the properties had been dedicated in favour of that deity; those properties are the properties of a private trust of which the Maharaj was the trustee. On the basis of this newly evolved theory he wanted to explain away the effect of the evidence afforded by the account books and the documents. We are unable to accept this new plea. It runs counter to the case pleaded in the written statement. This is not a purely legal contention. The Ist defendant must have known whether there was any dedication in favour of Shri Gokulnathji and whether any portion of the suit properties were the properties of a private trust. She and her adviser's must have known at all relevant times the true nature of the accounts maintained. Mr. Narasaraju is not right in his contention that the plea taken by him in this Court is a purely legal plea. It essentially relates to questions of fact. Hence we informed Mr. Narasaraju that we will not entertain the plea in question." (Emphasis Added)
57. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken. Whenever the plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute.
58. In P. Periasami Vs. P. Periathambi & Ors., 1995 (6) SCC 523, it was said:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
59. In Mohan Lal v. Mirza Abdul Gaffar (1996) 1SCC 639, Court said:
"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."
60. In Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said:
"The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
61. In Vishwanath Bapurao Sabale (supra), Court in respect to a claim of title based on the pleading of adverse possession, said as under:
"for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession." (Emphasis Added)
62. What should have been pleaded and what a person claiming adverse possession has to show has been laid down by categorically in Karnataka Board of Wakf (supra):
"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 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. ..... Physical fact of exclusive possession and the animus possdendi 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 rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." (Emphasis Added)
63. Earlier also, a three-Judges Bench in Parsinnin Vs. Sukhi (1993) 4 SCC 375, laid down the following three requisites for satisfying the claim based on adverse possession:
"5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. .... Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be "nee vi nee clam nee precario" i.e. 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."
64. The above exposition of law leads no manner of doubt that a permissive possession is not an adverse possession and, therefore, cannot mature into title after expiry of any length of period. Further, once a title of plaintiff is denied by defendant, plea of adverse possession against such plaintiff is impermissible. Hence, question-1 is answered against defendant-respondent-2 that his possession was permissive and hence it could not have matured in a title.
65. Now coming to question-2, I find that Exhibits-9, 10 and 11 are three documents, written in Urdu and no translation thereof has been provided to the Court. Exhibit-12 is a document executed on 16.11.1965 and it was exhibited on 24.10.1975. Exhibit-13 is a document executed on 31.07.1955 and it was exhibited on 24.10.1974.
66. On the day, when these documents were exhibited both were less than 20 years, therefore, presumption under Section 90 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") as amended in U.P. was not available. Section 90 of Act, 1872 as amended by Section 2 of U.P. Act, No. 24 of 1954 w.e.f. 30.11.1954, reads as under:
"90. Presumption as to documents twenty years old-(1) Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.
Explanation.-Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested."
67. In order to bring in presumption under Section 90(1), following conditions, therefore, must be observed or existed:
(1) The document must have been in existence for 20 years or more;
(2) It must have come from proper custody when produced in Court;
(3) The document must be, in appearance, free from suspicion;
(4) It should purported to be in handwriting of the person and should not be anonymous.
68. However 'presumption' under Section 90 is not obligatory on the part of Court. The word 'may' used in both sub-sections leave it to Court, to draw such presumption or not. Obviously, if Court decline to raise presumption, it must be for valid reasons. The words 'may presume' have been defined in Section 4 of Act, 1872 and read as under:
"4. "May presume"-Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it." (Emphasis Added)
69. Where Court instead of presuming the document to have been formally proved, required proof and declined to treat the document as proved, unless it has been proved in accordance with the procedure prescribed in law, such discretion exercised by Court, by itself, is neither illegal nor incompetent.
70. Section 90 is founded on necessity and convenience. In normal circumstances, it is extremely difficult, and sometimes, may not be possible to lead evidence, to prove handwriting, signature or execution of old documents, after lapse of a long time, i.e., 30 years (vide Section 90), (but 20 years as applicable in U.P.). It is to obviate such impossibilities and difficulties which may arise in proving an old document, the above provision has been made part of the statute.
71. An incidental question arose that from which date 20 years period shall be computed; "whether it is the date on which evidence was considered or the date on which document was produced in the Court or the date on which other party admits or deny the documents".
72. This question was considered in Minu Sirkar Vs. Rhedoy Nath Roy, 4 C.L.R. 135. It was held that the period of 30 years shall be reckoned, not from the date on which the deed is filed in Court, but, from the date on which it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof.
73. A learned Single Judge of this Court in Chiraunji Lal Vs. Kallo and others, 25 Ind Cas 412 observed that the mere fact that document is 30 years old, at the time when case was tried and the evidence was recorded, will not justify presumption under Section 90. The presumption is in the discretion of Court. If evidence brought by plaintiff to prove the document is found uncreditworthy, the mere factum that it is 30 years old at the time when case was tried and evidence was recorded, would not justify to presume the document to be genuine. Though it is a short judgment but it appears that in respect of reckoning period the view taken by Trial Court was not upset by this Court.
74. In Hari Ram Vs. Mutsaddi and others, 1917 Indian Cases 80, Hon'ble Mr. Justice Broadway of Punjab Chief Court relied on Minu Sirkar Vs. Rhedoy Nath Roy (supra) and held, "this period shall reckon from the date from which its genuineness or otherwise becomes subject of proof". Therein, suit was instituted on 03.07.1915 while defendants filed their pleas contesting suit on 09.08.1915. The Court held that it is the later date which shall reckon to count period for the purpose of attracting Section 90 of Act, 1872.
75. In Ladha Singh and others Vs. Musammat Hukum Devi and another, 1923 (75) Indian Cases 57, a Division Bench of Lahore High Court considered this very issue. It also relied on Minu Sirkar (supra), and held, that period is to be reckoned, not from the date on which document is put in Court, but, from the date from which, after document has been tendered in evidence, its genuineness becomes the subject of proof. These authorities were followed in G. Konda Reddi and Anr. v. P. Pichireddi and Ors., AIR 1925 Mad 184.
76. In Surendra Krishna Roy v. Mirza Maham-mad Syed Ali Matwali, AIR 1936 PC 15, Court said:
"In the High Court it was pointed out that the kabuliat of 1892 (exhibit 4A) was itself at the time of the trial in 1927 over thirty years old, and that under Section 90 of the Indian Evidence Act the presumption could be made that it was executed by Korban Ali as it purports to be. At one time it was argued that Section 90 would not apply to this document by reason that it was filed in Court by the plaintiffs on November 11, 1918. Their Lordships are, however, of opinion that under Section 90 of the Indian Evidence Act the period of thirty years is to be reckoned, not from the date upon which the deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. This was decided in the case of Minu Sirkar v. Rhedoy Nath Roy (1879) 5 C. L.R. 135." (Emphasis Added)
77. This Court also considered the question, when the period of 20 years/30 years, as the case may be, shall reckon in Babu Nandan Vs. Board of Revenue, AIR 1972 All 406. Relying on Surendra Krishna Roy (supra) this Court said that material time for admissibility of a document is the date on which it is tendered in evidence and not on the date when it is filed in the Court. I am bound to follow the view taken by Privy Council in Surendra Krishna Roy (supra) and this Court in Babu Nandan (supra).
78. In the present case computing from any angle, I find that Exhibits- 12 and 13 are the documents within 20 years and, therefore, Section 90 has no application. Question-2 is answered in favour of appellant.
79. Interestingly, success of appellant in two substantial questions of law answering in his favour, per se, may not result in deciding the appeal in one or the other way and, therefore, it requires something more to be placed on record.
80. From the judgment of LAC, I find that it has decided points- 1 and 2 framed by it in favour of defendant-respondent-2 on the ground that defendant-respondent-2 being in possession of disputed property has a right to continue in possession against the whole world except "True Owner". Here against plaintiff, principle under Section 110 of Act, 1872 has been followed since plaintiff's case that plaintiff was owner of disputed property has not been found proved, therefore, suit for eviction of defendants and cancellation of sale-deed executed by defendant -2 in fovour of defendant-1 filed by plaintiff has been dismissed for the reason that plaintiff having not been found either owner of property in dispute nor in possession, therefore, neither he has been found to be a person having title on the basis of any title deed etc., or to have a possessory title. A person in possession cannot be evicted forcibly but proceeding of law has to be followed. This is what has been done by Court below. For these reasons, I do not find that judgment of LAC can be objected.
81. Sri S.C. Verma, learned counsel for appellant also sought to argue that a new substantial question of law with regard to the fact "whether plaintiff has proved its title over property in dispute or not may be framed and decided but in my view, at the stage of hearing of appeal, finally, such a question cannot be added as a substantial question of law. Moreso, when this is a question of fact, in absence of any issue raised with regard to perversity of the findings recorded by LAC on the question of title, this question cannot be said to be the substantial question of law. Hence, I do not find that it can be allowed to be raised at this stage, in the manner as it is sought to be.
82. In view thereof, I find no reason to set aside judgment of LAC whereby suit for eviction, delivery of possession and cancellation of sale-deed has been dismissed. Appeal lacks merit and is accordingly dismissed.
83. No costs.
Order Date :- 25.03.2019 Siddhant Sahu