Bombay High Court
Nandlal Sakharam vs Babu Bhika & Others on 31 July, 1996
Equivalent citations: 1998(2)BOMCR392
Author: S.B. Mhase
Bench: S.B. Mhase
ORDER S.B. Mhase, J.
1. These three appeals have been clubbed together for the purposes of disposal as the common question of law is involved in ail these appeals. Not only that, but the facts available in these three appeals are akin to each other except the few dates which will be separately stated hereinafter. However, due to the said difference, the result of appeals will not be affected and therefore, they are being decided together by a common judgment.
2. Appeal No. 17 of 82 and Appeal No. 203 of 82, so far as the (acts are concerned, are same, except the change in the names of parties. The facts in these appeals are -
The suit properties involved in these suits are the properties of Jahagirdar, viz. Nurul Jiyauddin s/o Nurtil Attkiya. The said Jahagirdar had executed lease of the suit land in favour of three persons, viz. Sakharam, Ganeshlal and Motilal permanently under the registered deed of lease dated 28th June 1945. The defendants were recorded annual tenants of the suit land in the Records of Right. Therefore, Sakharam and others including Jahagirdar served a notice to quit under section 74(2) of the Berar Land Revenue Code and then filed a suit Bearing No. 327-A of 1946 against the defendants for possession of the suit land. This suit was decreed in favour of the plaintiff's father and others. Plaintiff's father and others obtained possession of the suit land through Court on 14th September 1950. As the plaintiff's father and other co-lessees were specified tenants in lawful possession of the suit, the Deputy Commissioner of Buldana by his order dated 30th June, 1955 passed in Revenue Case No. 288/42-A/1951-52 declared plaintiff's father and other co-lessees as occupants of the suit land as per Exhibit'30 under the provisions of the M.P. Abolition of Proprietary Rights, Estates, Mahals, Alienated Lands Act, 1950 (for short, the 'Act of 1950') on payment of requisite amount of land revenue. The said order conferring occupancy rights on plaintiff's father and other co-lessees was final and binding on defendants. Afterwards on 20th December 1954 a partition took place between plaintiff's father and other co-lessees in which the suit land was allotted to the share of plaintiff's father. Thus, the defendants had no right whatsoever in the suit land. Even then the defendants denied the rights of the plaintiff and obstructed in possession of plaintiff over suit land. Thus, the plaintiff made application before the Tahsildar, but the Tahsildar did not decide the rights and hence the suit was filed for possession. Thus the facts in both the appeals are one and the same except the revenue case number which is Revenue Case No. 2/52(a) of 1954-55 in Appeal No. 203 of 1982.
3. So far as Second Appeal No. 202 of 82 is concerned, the history of facts stated above is same, except number of suit filed in 1946 which is 322-A of 1946 and the date of possession obtained by the plaintiff on the basis of the decree in the said suit, which is 9th August 1950. The number of revenue case giving grant of suit land to the plaintiff is 2/52(a) of 1954-55 in the said appeal.
4. Thus, it will be clear that in these three appeals, the plaintiffs are permanent lessees to whom after abolition of Jahagirs, lands have been granted as per the provisions of the Act of 1950. It will be further clear that the defendants in all these suits were and are the annual tenants against whom, on the basis of the decrees suits filed in the year 1946 after issuing notice to quit under section 74(2) of the Berar Land Revenue Code, decree for possession has been obtained in 1950 and 1951. All these facts, even though disputed by the defendants, have been proved by the documents on record. The defendants are claiming the properly as owner and according to them, they are owners by virtue of adverse possession. Initially, the suits filed by the plaintiffs were dismissed by the Civil Judge, Junior Division, Mehkar on 12th Oct. 1965 and the civil appeals filed against those judgments were also dismissed by the District Judge, Buldana on 31st January 1981 and, thus, the present/second appeals are by the plaintiffs who were respectively plaintiffs in Reg. C.S. Nos. 258/64, 255/64 and 253/ 64. The respondents are defendants respectively from those suits.
Both the lower courts have found that the defendants/respondents have matured their title by adverse possession. However, the learned Counsel appearing for appellants/plaintiffs Mr. R.L. Khapre contended that the plea of adverse possession raised by the respondents/defendants have not been properly constituted in the Written Statement by the respondents. He submitted that the plea of adverse possession is a mixed plea of facts and law. He submitted that as per Order VI, Rule 2 of the Code of Civil Procedure, the defendants should have pleaded a concise statement of material facts on which the defendants rely for the purpose of maturity of title by them by virtue of adverse possession. According to the learned Counsel, the pleadings in the Written Statement do not show as to when the adverse possession commenced as against the appellants/plaintiffs. The Written Statement also does not show as to when the defendants/respondents claimed hostile and notorious title to the knowledge of the appellants/plaintiffs so that they shall take immediate steps for recovery of possession of suit land. The other contention by the learned Advocate Mr. Khapre is to the effect that the proved facts on record are not sufficient to hold that the defendants/respondents have proved their adverse possession as against the appellants. According to him, the lower courts have held that the possession of the respondents was adverse to appellants since 1934 and, therefore, the title by adverse possession was perfected much earlier to the filing of suit. The said findings as recorded by the courts below are not proper, because the courts below have failed to consider effect of decree passed in civil suits filed in the year 1946 and the delivery of possession in consonance with the said decree. Not only that, but the lower courts have also failed to consider the effect of abolition of the Jahagir Inams as per the provisions of the Act of 1950 so tar as the rights of the parties to the suit are concerned. MR.. Khapre submitted that the period which was consumed by the legal proceedings cannot be counted for the purpose of counting the period of 12 years by maturity of title by adverse possession. Mr. Khapre submitted that the persons who were annual tenants of the land cannot claim ownership by adverse possession. He submitted that it is for the defendants to state and prove that from which date defendants started enjoying the property of the plaintiff with an animus to claim ownership hostile and notorious to the plaintiff so that the plaintiff had notice of the adverse claim being made by the defendants/respondents. In the absence of specific date or year from which the possession is to be reckoned as adverse, bare possession, how long may it be, would not mature into an ownership by adverse possession. Therefore, according to Mr. Khapre, claim of the respondents fails on two grounds, firstly for want of appropriate pleadings in the written statement constituting the said plea of adverse possession and secondly, for want of proof of the said facts proving adverse possession.
6. Mr. S.R. Deshpande, the learned Counsel who appeared on behalf of the respondents/defendants submitted that the suit of the plaintiffs was barred. The learned Advocate submitted that section 31 of the Limitation Act, 1963 will not permit filing of such suit. According to the learned Advocate, the limitation for filing of the suit by the plaintiff was under Article 142 of the Limitation Act, 1908 and, therefore, that period of limitation has expired prior to coming into force of the Limitation Act, 1963 and, therefore, the suit is not tenable in law. Thus, according to him, the period from 1934 as has been counted by the lower courts should be counted and thereby it be cleared that the present suit is an attempt to introduce a time-barred cause under the Limitation Act, 1963 and he submitted that Article 65 of the Limitation Act, 1963 will not apply. He further submitted that both the lower courts have rightly decided the issue of adverse possession on proper pleadings and the finding of facts. According to him, the certificate of re-grant is not a document of title. He further submitted that the theory of possession being delivered to the plaintiffs in consonance with the civil suits of 1946, is not proper and the findings recorded by the lower Appellate Court that the possession was not obtained from the respondents in consonance with the civil suits of 1946 is correct and, therefore, the continuous possession of the respondents from 1934 till the filing of present suit shows that the title of respondents by adverse possession has perfected. He submitted that the period spent in Court as a result of 1946 suits cannot be ignored.
7. With these submissions, therefore, substantial question of law which requires to be considered in the present appeal is, whether the pleadings of the respondents are sufficient enough to raise the plea of adverse possession. Secondly, what is the effect of abolition of Jahagir under the Act of 1950 so far as the rights claimed by adverse possession as against the plaintiff are concerned and particularly, whether the defendants have acquired the title of ownership by adverse possession. The facts which are admitted are that the suit property was the property of Jahagirdar Nurul Jiyauddin. There was lease deed dated 28th June 1945 giving permanent tenancy rights to Ganeshlal, Motilal and others by the said Jahagirdar. The respondents/ defendants were the annual tenants in the suit land. Notice to quit under section 74(2) of the Berar Land Revenue Code was issued to them and civil suits, as stated above, were filed in 1946 wherein the decree for possession was passed in favour of the present appellants. As a result of coming into force of the Act of 1950, the Jahagirdar Inams in favour of the original Jahagirdar and the rights were abolished and thereafter the suit lands were granted to the appellants in the year 1955 as per the provisions of the said Act. That, the partition has taken place inter-se between the permanent tenants on 20th December 1954 and the lands respectively described in each of the suits came to the share of respective plaintiffs/appellant, wherein the defendants/ respondents were respectively claiming ownership by adverse possession.
8. The facts under dispute are that the possession of the land was not given to the plaintiffs/appellants in 1950-51 as per the decrees in the civil suits of 1946 and thus, it was claimed that the respondents are continuously in possession of the property. Under there facts and circumstances, the above raised questions are to be considered by this Court.
9. So far as the plea of adverse possession is concerned, the defendants have contended that it is not true that the plaintiffs have taken possession in 1952 and that there is no cause of action. The said land is being cultivated by the defendants since their fore-fathers for more than 25 years as owner and their possession is that of owners. If the defendants cannot be decided as owners, they were owners as against the whole world 12 years prior to the suit as owners and cultivating as owners and their possession is continuous, unobstructed for 12 years and, therefore, they are owners by adverse possession.
10. On the basis of these pleadings the issue of adverse possession is being considered by the courts below. Adverse possession, refers to actual and exclusive possession, coupled with the intention to hold as owner, and accompanied by such an invasion of the rights of the true owner as gives the later a cause of action to sue for recovery of possession at once. Thus, the facts constituting the adverse possession must be of such nature that the property in possession of the person claiming adversely, must be the property belonging to others and a person in possession claims a right to own the said property. That means, the possession must be with an intention or with an animus to own the said property with a hostility to the true owner. Thereby it becomes necessary that the possession with the person must be of such nature that it gives caution to the true owner of the property that if he does not takes steps for obtaining possession then the person in possession claiming adversely will mature his title into ownership. The person claiming adverse possession will also have to point out as to since when i.e. at what point of time, he started claiming possession adversely to the real owner and further will have to satisfy that even though his possession was of such nature that it cautioned the real or true owner of the property to take steps for obtaining possession, he remained into possession of the property uninterruptedly, peacefully, without any obstruction from the true owner of the property. Therefore, the concise statement of material facts constituting plea of adverse possession are necessary. A bare statement without there being any material particulars pleaded in the Written Statement, if allowed to be proved, will lead the plaintiffs or true owner of the property into confusion and take him by surprise at the trial. The pleadings in the present case only point out that the defendants/respondents are in possession of suit land since their father as owner and that they were cultivating the land for a period of more than 12 years as owner as against the whole world continuously and without any obstruction. This plea does not point out as to how his entry in the land was effected and secondly, as to how that entry was adverse to the true owner. It further does not point out against which of the owner the possession was being claimed as adverse possession. An animus plea that as against the whole world his possession was adverse, cannot be said to be a plea of adverse possession. Defendants have not pleaded material facts which give sufficient notice to the true owner of the property that the defendants are claiming possession over the property adversely to the true owner of the property i.e. to the present appellants. He further does not point out the material facts which are in consonance with the fact of ownership and which constitute the ownership. It is further pertinent to note that it appears that his father initially came in possession, because according to the defendants, from their father more than 25 years, the defendants are cultivating the lands as owner. Therefore, it is a case of tacking. Under these circumstances, the time when the possession became adverse and the material facts pointing out adverse claim from a particular point of time are required to be pleaded. In the absence of such pleadings, not only the true owners/plaintiffs, but the Court is also put at loss to give finding of fact on this aspect of the matter and thereby total plea in the present matter, even though pointing towards the adverse possession, is a vague plea without containing concise statement of material facts and, therefore, it cannot be said that the proper pleas raising claim of adverse possession have been constituted. The pleas which are based on the question of facts shall, contain those material facts which constitute the said plea. In the absence of averment of material facts constituting the said plea, the evidence in respect of the material facts cannot be controlled and thereby defendants or person claiming adverse possession is at liberty to lead any evidence which may be by way of surprise to the plaintiffs. Not only that, but the relevancy of facts of the material facts cannot be decided by the trial Court while recording evidence whenever objected by the owner of the property. This gives an opportunity for the person claiming adverse possession to take the other party by surprise which ultimately affects case of true owner and, therefore, I am of the view that a plea of adverse possession is a mixed plea based on facts and law. Therefore, it was necessary for the present respondents/defendants to constitute a plea of adverse possession based on material facts and particulars on which the defendants wanted to rely to prove their claim of ownership by adverse possession. I am supported in my view by the judgment of this Court in Yesu Sadhu Nimagre & others v. Kundalika Babaji Nimgre & another, 1977 Mh.L.J. 130. Para 24 of the said judgment which is relevant for the present purpose, reads as under:---
"Now, there can be little doubt that before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised. It is a cardinal principle that a person who claims adverse possession must plead to that effect and must show on what date he came into possession, what was the nature of his possession, whether the fact of adverse possession was known to the owner and what was the period of such adverse possession. The Supreme Court and this High Court have held that whenever there is a claim for adverse possession, it must be clearly made and proved. S.M. Karim v. Bibi Sakina, and S.A. No. 113 of 1964 decided on 13th April 1973 at Nagpur Per Sapre, J. The principle of law as to what is such a possession must be "adequate in continuity in publicity, and in extent to show that it is possession adverse to the true owner. In other words, there must be a clear assertion of a hostile title".
Therefore, there is no properly constituted plea of adverse possession and ownership made by defendant/respondent.
11. The respondents have contended that the finding recorded by the lower Appellate Court is that since 1934 the respondents' possession was adverse till 1955 when the grant of the said land was made to appellants under the provisions of the Act of 1950 and they had perfected their title to the suit land and, therefore, when this suit came to be filed in the year 1964 the respondents have already become owner of the suit land and the appellants' title to was extinguished. On the basis of this observation in the lower Appellate Court's judgment, it was tried to be submitted that in view of the provisions of section 31 of the Limitation Act, the suit of the appellants is barred by limitation. In this respect, the learned Advocate for the respondents pointed out Article 142 of the Indian Limitation Act, 1908, which is to the following effect :--
Description of suit Period of Limitation Time from which period begins to run
142.
For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.
Twelve years The date of the dispossession or discontinuance.
It will be seen that as per Article 142 of the Limitation Act, 1908 where the plaintiff has been dispossessed of the property while he was in possession thereof or has discontinued the possession, the period for filing the suit is twelve years and the period will begin to run from the date of such dispossession or discontinuance. Therefore, it was contended that the suit is barred by limitation. The learned Counsel also pointed out that Article 144 of the old Act also provides the limitation of 12 years for possession of immovable property or any interest therein not otherwise specifically provided for and the time from which period begins to run is, when the possession of the defendant becomes adverse to the plaintiff. It was, therefore, submitted that when in view of the old provisions, the period of limitation has elapsed, section 31 of the Limitation Act, 1963 prohibits filling of suit. In the light of this, section 31 of the Limitation Act, 1963 will have to be considered. Section 31 of the said Act is to the following effect :---
"31. Nothing in this Act shall, -
(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act, or
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement."
Therefore, on the basis of this provision, it is submitted that the period of limitation as provided under Articles 142 and 144 of the Limitation Act, 1908, has expired before the commencement of the Act of 1963. This submission is based on the above referred observations of the finding that the respondents' possession became adverse in 1934 onwards and till 1955 their title was perfected. This observation is based on the evidence of P.W. Sakharam and the lower Appellate Court has quoted the following portion from the cross-examination of this witness :---
"In 1943-44 in all the 11 suits were filed against the defendants cultivating the suit land as mentioned by me in the respective plaints. The same persons were cultivating the land before that. I know things from 1934........ We were demanding the possession of the suit land since 1945, but the defendants refused to deliver it. They were saying that we cultivate the fields and we do not want to deliver it. The defendants were never giving produce of the land to Jahagirdar. They were paying land revenue and rent to Jahagirdar. I have not seen any receipt for giving this rent. The defendants were giving land revenue and rent to Jahagirdar even after 1945".
On the basis of this evidence, the lower Appellate Court has observed that the possession becomes adverse since 1935. In fact, the statement is only to the effect that the witness was knowing the affairs since 1934 and in 1945 the possession was demanded from the defendants. What is pertinent to be noted is that this witness has maintained that the defendants were paying land revenue and rent to Jahagirdar and they continued to pay revenue and rent to Jahagirdar even after 1945. I am at a loss to understand as to how this evidence leads to an adverse possession. On the contrary, it would be pertinent to note that there is no admission that since 1934 dispute existed between Jahagirdar and the respondents and also that the respondents were claiming as owners. On the contrary, the witness has stated that they were paying land revenue and rent to said Jahagirdar. Rent is necessary consequence of tenancy. They may not be paying rent in crop share, but the rent contemplates the payment in cash or kind and, therefore, the evidence of this witness has been perversely appreciated by the lower Appellate Court. The lower Appellate Court has tried to read this evidence in the manner what is not contained in the said evidence. This evidence does not point out adverse interest and/or hostility on the part of the respondents to claim possession as owner. Therefore, f find that there was no admission by way of accepting adverse possession by RW. Sakharam. However, the lower Appellate Court has perversely accepted the above said piece of evidence in para 25 of its judgment and has concluded that the respondents' possession from 1934 became adverse. Apart from that the lower Appellate Court has lost sight of the fact that the plaintiffs are the permanent tenant of the suit land as a result of registered deed dated 20th June, 1945. Not only that, but in 1946 Reg. C.S. No. 24-A of 1946 came to be filed which was decreed in favour of plaintiffs. Copy of the said decree is at Exhibit 22. This will show that even assuming that in 1934 the respondents claimed adversely, still in 1946 i.e. within the period of 12 years, the suit came to be filed for possession and, therefore, the net result of the decree being passed against the respondents is that whatever the adverse claim if at all by the respondents that stands negatived as a result of judicial adjudication and decree for possession. What is pertinent to note is that the suit came to be filed on the basis of termination of annual tenancy of the respondents under section 74(2) of the Berar Land Revenue Code and therefore, it appears that the respondents were in possession inducted by the original Jahagirdar by way of annual tenant and the said tenancy was terminated and the suit for possession came to be filed. Therefore, a person who has been inducted in the property as an annual tenant, would not be in a position to claim adverse possession. The entry in the land itself is permissible and referable to the lawful title. One of the effects of the said decree is that the period which has been spent in the Court cannot be calculated as a period for maturity of adverse possession. Further, what is important to be noted is that as the present plaintiffs became permanent tenant in the year 1945, it cannot be said that the possession of the respondents was adverse to the present plaintiffs from 1934. Further, it cannot be said to be adverse to Jahagirdar when the evidence is to the effect that the rent and land revenue was being paid to Jahagirdar by the respondents. Apart from this, the evidence of defendants and their witnesses which has been quoted by the lower Appellate Court in its judgment in para 19 is to the effect that the suit land was their ancestral land and that they were cultivating the suit land as owners from the time of their father. The defendant asserted that he was paying revenue to Jahagirdar and after abolition of the Jahagirdar, he was paying revenue to Patwari. The witness, however, has expressed ignorance as to how his father had got the suit land. Thus, the fact remains, on reading the evidence of the defendants that they were paying land revenue to Jahagirdar, that the ownership of Jahagirdar to the land in question was accepted, because it was in the Jahagir in favour of Jahagirdar. However, the said aspect has been improperly appreciated. The evidence of the adjoining owner of the land came to be considered not from the view point of the maturity of adverse possession as against the true owner of the property or was sufficient enough to caution the true owner of the property. Said approach was wrong, because those witnesses have only deposed about possession of respondents, but have not deposed any fact which would point out acts of ownership by respondent to the knowledge of appellant/plaintiff. Therefore, I am of the opinion that , the very finding that the possession became adverse since 1934 by the lower Appellate Court in the facts and circumstances pointed above was bad in law. On the contrary, under Article 144 of the Limitation Act, 1908, 12 years are required to be calculated from the date when the possession of the defendant becomes adverse to plaintiff. There is no pleading and evidence at least in the present case as to when the possession of the defendants/respondents became adverse to the plaintiffs/ appellants. Not only that, but the fact of discontinuance or date of dispossession of the plaintiffs is not accepted by the respondents. On the contrary, the respondents are coming with a case that they are continuously in possession of the property and, therefore, there is no dispossession or discontinuance of the appellants' possession. What is important to be taken into consideration while scrutinising the case of the tenants claiming adverse possession is that, the said tenants/defendants are under obligation to point out as to at what point of time, they started claiming possession adverse to the knowledge of the true owner. Pleading and evidence in this respect is absent and further-more, Articles 141, 142 and 144 of the Limitation Act, 1908 will have no application in the present facts and circumstances of the case, because civil suit came to be filed in the year 1946 and decree for possession came to be passed in the said suit which, according to the plaintiffs, was executed in the year 1950-51. All this discussion will show that in any circumstances the finding recorded by the lower Appellate Court that since 1934 upto 1955 possession being adverse, the plaintiffs' title has been extinguished is bad in law and I am of the view that the cause of action if at all as contemplated under Article 142 or Article 144, has never taken place so as to hold that the period of limitation provided under these two Articles has expired prior to the coming into force the Indian Limitation Act, 1963. Therefore, the contention of respondent that present suit which has been filed after the coming into force of the Act of 1963, is not tenable in law in view of the provisions of section 31 thereof, is not proper and I reject the said contention on behalf of the respondents.
12. One of the important factors which requires to be considered in the present matter is the effect of the abolition of the Jahagirs and the re-grant of the lands to the appellants under the provisions of the Act of 1950. The notification under sub-sections (1) and (3) of section 3 of the said Act was issued on 27th January 1951 and as per the said notification, so far as Buldana district is concerned, 14th March 1951 is a date on which the provisions of section 3 were brought into force. Section 3 of the Act of 1950 as far as relevant for the present purpose, reads as under :---
"3. (1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purpose of the State free from all encumbrances.
(2) After the issue of a notification under sub-section (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf."
Section 4 of the Act of 1950 is in respect of the consequence of the vesting of properties in the Govt. as a result of notification under section 3 of the Act of 1950.
It is important to be noted that as a result of issuance of the said notification, all proprietary rights in estates, mahal, alienated village, alienated land, as the case may be, in the area specified in the notification vesting in the proprietor of such estate, mahal, alienated village, alienated land or any person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to State and vest in the State for the purposes of the State free from all encumbrances. Thus, as a result of this provision, all the proprietary rights of Jahagirdars in the suit land and the persons having interest in such a proprietary right through the proprietor i.e. the appellants and the respondents stand vested in the Government free from encumbrances. Sub-section (2) of section 3 of the Act of 1950 makes it clear that no right shall be acquired in and over the land to which the said notification relates except by succession-or under a grant or contract in writing made or entered into by or on behalf of the State and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf. After extinction of the rights as a result of notification being issued under section 3, if any, right is to be created, it shall be by way of agreement or grant in writing by the State Government and not in any other mode.
13. Section 4 of the Act of 1950 specifically lays down that notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in the said Act, the consequences enumerated thereunder from the date specified in the notification shall ensue, and thereby the different types of said section has extinguished rights in enumerative and inclusive manner have been stated so that there shall not be any doubt in respect of effect of vesting of those properties with the Government. The total effect which has been specified in section 4 except what has been saved, is that the rights of the Jahagirdars and the persons claiming through the Jahagirdars in Jahagir properties have been extinguished. One of the consequences which is relevant for our purpose is that the respondents were only the tenants inducted in the said property by the Jahagirdars and thus, they were the persons claiming through the Jahagirdars and hence along with the Jahagirdars whatever right, title and interest the respondents had in the said property, were extinguished. It is also important to note that the appellants were the permanent tenants over the suit land and, therefore, they were specified tenants within the meaning of definition (p) under section 2 of the Act of 1950. It is important to note that it is not the case of the respondents that they are ante-alienation tenants or tenants in antiquity and thereby are specified tenants by virtue of they being permanent as per definition (p) of section 2. It is pertinent to note that the proprietory rights of the specified tenant have been maintained by section 68 of the Act of 1950. Sub-section (2) of section 68 lays down that every person holding land as a specified tenant before the date of vesting shall on and from such date be deemed to be a lessee of such land and except where the State Government otherwise directs, he shall hold the same on payment by way of lease money annually the same amount as was payable by him as rent and on other terms and conditions on which he was holding before such date. Sub-section (3) of section 68 of the said Act lays down that the terms and conditions referred to in sub-section (2) shall be deemed to be the terms of the grant of lease and such lease shall be deemed to be a grant within the meaning of the Government Grant Act, 1895. Such a person shall be 'deemed to be, for all purposes, lessee from the State within section 55 of the Berar Land Revenue Code, 1928. Thus, it is pertinent to note that as a result of extinction of the proprietory rights of Jahagirdars, the Government became owner of the suit property and the permanent tenant and for specified tenant was treated to be the tenant of the Government. Except these rights, no other relations or interests through the Jahagirdar were preserved by the provisions of the said Act. The net result of these provisions, as I have stated above so far as the parlies to the proceedings are concerned, is that the rights of the Jahagirdars and the respondents were extinguished so far as the land is concerned and the rights of the appellants qua the said property being specified tenants were maintained and the appellants were under obligation to pay rent and continued to be the permanent tenants on the same terms and conditions as it was continued to be the permanent tenants on the same terms and conditions as it was continuing with the Jahagirdar. I am, therefore, of the view that as a result of the decree of 1946 civil suit passed against the respondents as discussed above, the respondents have lost their rights in respect of this property, but further as a result of coming into force of these provisions thereof rights were forfeited and the rights stand vested in the Government. As against this, the rights of the permanent tenant being specified tenant were continued and in place of Jahagirdar, the Government was substituted by the Act of 1950. Further, it is important to note that section 69 of the said Act deals with conferral of occupancy rights on lessees. According to said section, any person becoming a lessee under sub-section (2) of section 68 may at any time before the date of vesting or within six months therefrom or such further period as the State Government may from time to time notify, apply to the Deputy Commis-
sioner for the conferral upon him of the right of an occupant, making a deposit by way of premium of an amount calculated, subject to such marginal adjustments as may be prescribed in accordance with the table given thereunder. Sub-section (2) of section 69 of the Act of 1950 lays down that on receipt of such application, the Deputy Commissioner shall, if the amount of deposit is in accordance with sub-section (1), confer the right of occupant on such lessee and thereupon such occupant shall be entitled to all rights, and be subject to all liabilities, of an occupant. The net result of sections 68 and 69 is that the person who is specified tenant is only entitled to obtain a status of occupant on certain payments to the Government. Those provisions speak about the act of conferral of the occupancy rights on payment of certain premium and thereafter the said person is liable to pay annual land revenue to the Government. These provisions have been analysed for the purpose that except the specified tenant, no other person is entitled to obtain status of occupant, thereby not only the Jahagirdars stand excluded from getting the land, but also the other persons who are not specified tenants claiming through the Jahagirdars stand excluded. Therefore, the respondents were not entitled for any grant or re-grant of the said land.
14. In the present matter, it appears that the notification came into force on 14th March 1951. However, all the appellants were put into possession of the said land in view of the Civil Court's decrees in 1946 suits prior to the said date in execution of the said decrees. Not only that, thereafter the enquiries were held and on payment of premium, the orders have been issued by the Deputy Commissioner of District Buldana on 30th June 1955 which is at Exhibit 32 in Revenue Case No. 2/52(a) of 1954-55. Therefore, the appellants have obtained status of an occupant on 30th June 1955. Prior to that their status was of the lessee of the Government since 14th March 1951 to 13th June 1955 and prior to that the appellants were the permanent tenants of the Jahagirdar. I have already analysed in the above discussion that as a result of decree being passed in Civil Suit of 1946, claim of the respondents on whatever grounds it has been made, stands extinguished and they were persons liable to be evicted on the basis of the decree. However, as a result of the abolition of the Jahagirs and the extinction of the rights of every person who was having interest in the said property through the Jahagirdar were extinguished. More specifically, I am of the view that as a result of decree and as a result of the Act of 1950, the rights of the respondents were completely extinguished. It is not the case of respondents that the respondents were claiming adverse possession as against the Government, because it is admitted position on record that the respondents were paying land revenue even to the Jahagirdar. Therefore, whatever right was being craimed, that was only as against the Jahagirdar. However, the said right also stands extinguished especially in view of the fact that at no point of time, the adverse possession could have been matured as against the Jahagirdar prior to 14th March 1951 when the Act of 1950 came into force extinguishing the right, title and interest as also the proprietory rights. In the year 1955, the decree passed in the civil suit of 1946 was enforceable and along with the present appellants, the original Jahagirdar was plaintiff No. 4 in the said decree. Therefore, that right of getting possession which was available to those plaintiffs, was extinguished. A bare possession even though assumed with the respondents after 14th March 1951, will not mature into adverse possession when the present suit came to be filed, because in 1951 as a result of application of the said Act, it is the Government which became owner of the property and, therefore, if any claim has to be made as against the Government by way of adverse possession, the period is as provided in section 112 of the Limitation Act, 1963. The said Article provides that the period of limitation is thirty years (or filing any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government including the Govt. of Jammu and Kashmir and the time begins to run when the period of limitation would begin to run under the said Act against a like suit by private person and therefore, we have to consider Article 65 of the Limitation Act, 1963 which is applicable to an individual which provides that the period of limitation would begin to run when the possession of the defendant becomes adverse to the plaintiff. Therefore, if in the year 1951, the respondents started claiming as against the Government, the period of 30 years would have been applicable as provided under Article 112. The grant came to be effected in favour of the appellants in the year 1955 and, therefore, the said adverse possession is to be considered as against the individual and therefore, the limitation would start running from 30th June 1955 at the most. What is important to be noted is, Article 65 of the Limitation Act, 1963 makes it clear that the time will start to run when the possession of the defendant becomes adverse to the plaintiff. However, the respondents are coming with a case as stated above that they are claiming adverse possession since the period of 25 years from their father. What is important for our purpose is that the respondents are not contending as to when they have started claiming adverse possession as against the present plaintiffs/appellants, because in the present matter, this Court has to consider, whether the respondents have become owner of the suit property by way of adverse possession as against plaintiff/appellant. So, if the pleadings of the respondents are taken into consideration, those pleadings point out that from the last 25 years from their father, they are claiming adverse possession. However, as pointed out above, that period shows that the Jahagirdar has obtained a decree of possession against the respondents. In view of the absence of specific pleadings claiming adverse possession as against the appellants, the only case open for the scrutiny is that as the appellants were specified tenants through Jahagirdar and whatever was adverse to Jahagirdar has to be calculated as adverse to the appellants. This will not be permissible according to me because of the two facts : (1) there was suit in the year 1946 where the decree for possession was passed; (2) Howeyer, the said decree lost its executability as a result of the Act of 1950 abolishing the Jahagir properties and creating different statutory rights in respect of Jahagir properties, its title being vested with the Government. In the light of this, the effect of abolition and re-grant has been considered in the light of Article 165. It is pertinent to note, as pointed out above, the Old Article 142 has been relied upon by the respondents and in that light the Advocate for the appellants has pointed out this case and has relied on Nanha & others v. Risala & others, A.I.R. 1978 P. & H. 107. According to me, the facts of this case are similar to that of the present case. In that case, the plaintiffs were entered as the sole occupancy tenants in the land in dispute in the Jamabandi of 1945-46, prepared immediately after the consolidation of holdings. They were, however, shown as gair qabiz and the defendants were recorded in actual possession of the said land. In 1953, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act came into force and in view of its provisions, the plaintiffs were entered as the owners in the land in dispute, in the Jamabandi of 1953-54, but the entries in the column of cultivation remained the same. In 1962, plaintiff filed the suit for declaration that they were the owners of the land in dispute and in the alternative prayed for possession. It was held in the said case that the plaintiffs became owners of the property in 1953. Prior to 1953, they were occupancy tenants under the landowners. They during that period could not institute a suit for possession against the defendants on the basis of title. If they wanted to institute a suit for possession before 1953, they could do so on the basis of their rights as occupancy tenants and not as owners. After coming into force of the Act, the plaintiffs became owners and were vested with the right to eject the person in possession of the land on the basis of their title. In such circumstances, they would be deemed to have been dispossessed regarding their ownership rights from the date when they became owners of the property. Therefore, the period of limitation would run against them from the day when they stepped into the shoes of the earlier owners. In case the defendants had become owners of the property by adverse possession prior to coming into force of the Act, the matter would have been different. But they held the occupancy rights adversely to the plaintiffs from 1946, and consequently they did not acquire occupancy rights by adverse possession in 1953, when the plaintiffs got ownership rights. I am of the view that these facts are similar to the facts in the present case, because in 1945 appellants were specified tenants and along with the Jahagirdar suit in the year 1946 was filed and whatever rights which the respondents could have claimed, were brought to an end by the decree of 1946 and the rights of ownership were conferred on the appellants on 30th June 1955, when the Deputy Commissioner passed order for grant of said land as occupant to the appellants. I have already found that there is no evidence or material on record to hold that the respondents have become owners of the property by adverse possession prior to the coming into force of the Act of 1950 which abolished the title and interest of the earlier Jahagirdars and the persons claiming through them. Therefore, according to me, the period will start running as against the appellants from 30th June 1955 for the purposes of filing the suit and so also for calculating the adverse possession by the respondents. The suit came to be filed on 1st Oct. 1965. Therefore, I am of the view that from 30th June 1955 onwards on the date of presentation of the suit i.e. 1st Oct. 1965, there was no maturity of title by adverse possession by the respondents. Not only that, the suit filed by the appellants will be within the period of limitation as provided under Article 65.
15. The learned Advocate pointed out the observations made in paras 24 and 25 of the judgment of the lower Appellate Court and tried to submit that the appellant that in 1952-53, the appellant was in possession is not correct. Reference was made to the case filed under section 107 Cr.P.C. at Exhibit 41 which shows that the preliminary order was passed on 8th Sept. 1952 under section 107 Cr.P.C. against the respondent and that the said order shows that the dispute arose sometime before September 1952 and, therefore, according to the respondents, the appellants were dispossessed in September 1952 and, therefore, the suit filed on 1st Oct. 1964 even according to Article 65, is not within limitation. It is pertinent to note that the proceedings under section 107 Cr.P.C. were taken for the purposes of maintaining peace and tranquility and that the possession of the appellants which they obtained through Civil Court, was not obstructed by the respondents and for that purpose, to obtain necessary bonds from the respondents. The grievance which was made by the appellants was that their possession in the said land is being obstructed. Operation of the threashing floor has also been obstructed and, therefore, the action was taken. What is pertinent to note is that it was never a case of the appellants that the respondents were in possession and/or respondents have snatched possession from the appellants and the preliminary order dated 8th Sept. 1952 seeking the bonds for maintaining peace and tranquility as provided under section 107 Cr.P.C. was quashed and the respondents were dis-
charged by the Sub-Divisional Officer, because it was found by him on the basis of evidence that the incident of obstruction was not proved and the Sub-Divisional Officer was not convinced that this dispute is likely to lead to breach of peace and, therefore, does not warrant order under section 107 Cr.P.C. I have discussed this order because it was never observed in this order that the respondents are in possession of the property. Therefore, the finding arrived at by the lower Appellate Court in para 25 that the defendants had continued to be in possession of suit land and the allegation that the defendants were dispossessed of the land by taking away the wheat crop is false and thereafter linking up these observations in para 24 with the fatal observations in para 25 to the effect that at any rate, as per the evidence led by the plaintiffs, the dispute about possession over the suit land had started sometime before Sept. 1959 and. therefore, defendants must have ascertained hostile title over the suit land to the knowledge of the plaintiffs sometime before 1952 and consequently, the defendants had become owner of the suit land by adverse possession on 1st Oct. 1964, are bad in law. Obstruction to the possession stated to by the appellants does not mean that the appellants were dispossessed prior to 8th September 1952 or sometime before September 1952. It is at the most, at the commencement of civil dispute between the parties afresh after the possession has been obtained by the plaintiffs/appellants and further those proceedings wilt point out that the Sub-Divisional Officer was not impressed to continue the order under section 107 Cr. P.C. for maintaining peace and tranquility as he found that there is no evidence requiring him to pass order against the respondents to ask for the bonds for maintaining the peace and tranquility. That will be the just inference of the said order of the Sub-Divisional Officer at Exhibit 41. However, the inference drawn by the lower Appellate Court that sometime prior to September 1952 the appellants were dispossessed of land, is not correct. It is only a time when the respondents started to obstructed in the cultivation and enjoyment of suit land. However, as to when the actual dispossession of appellants took place at the hands of respondents, for ascertaining these facts, the respondents have not led any evidence to the effect that sometime before Sept. 1952, the respondents dispossessed the appellant. On the contrary, the case of respondents is to the effect that they were never dispossessed from the land and the possession receipt prepared in favour of the appellants is bogus one. Therefore, the finding which came to be recorded for the purposes of calculating the period for maturity of title of adverse possession of the respondents sometime before Sept. 1952 by the tower Appellate Court is something which was never a case of the respondents for the purposes of ascertaining the adverse possession or for maturity of adverse possession. The tower Appellate Court is itself trying to make out the case of adverse possession in the absence of pleadings. In the tight of these facts, the finding of dispossession in September* 1952 therefore, amounts to making out a case by the courts below contrary to the case pleaded by the respondents and, therefore, I am of the view that the pleading of adverse possession must be very specific and must contain material facts constituting such plea. In the absence of specific plea, the Court below has tried to give a finding on the case which was never pleaded and intended by the defendants. I find at the most that Exhibit 41 will point out that the obstruction started to the possession of appellants sometime in 1952. The appellants have pleaded in the plaint itself that they were dispossessed in December 1952 and accordingly, the appellants have deposed. As against this evidence, the case of the respondents is of continuous possession. In the absence of any challenge to the statement and evidence of the appellants that the appellants we're dispossessed in 1952 and in the absence of specific case by the respondents that the appellants were dispossessed by the respondents sometime before September 1952 being pleaded and established, I hold and conclude that the appellants at the most could have been said to be dispossessed in December 1952 after getting possession as per the decrees passed in the civil suits of 1946 and if the period from December 1952 is calculated, the suit filed on 1st Oct. 1964 is within a period of limitation, as provided under Article 65 of the Limitation Act, 1963 and even if the possession is said to be adverse from December 1952, it does not mature in full title because on 1st Oct. 1964 as the period of 12 years required for maturity of adverse possession was not completed. Therefore, the findings recorded by the lower Appellate Court in paras 24 and 25 that the adverse possession commenced sometime before September 1952 and, therefore the ownership by adverse possession was complete prior to 1st Oct. 1964 when the suit came to be filed, was bad in law.
16. Apart from this, the respondents have not led any evidence on record showing that they have performed any acts which would show that the respondents were in possession of the said property with animus to enjoy the suit property as owner. The evidence which has been led by the respondents is of the adjoining holders of the property which has been considered by the lower Appellate Court in para 19. However, the said evidence of the adjoining owners of the land is only to the effect that the respondents were in possession of the land since more than 20-25 years and nobody else was in possession of the suit land. They have further stated that the crops are taken by the respondents. However, there is no evidence by these adjoining owners that the respondents asserted any ownership in respect of such land and it was so hostile and notorious so as to fasten or clinch the appellants with the knowledge of adverse title being claimed by the respondents. It is well settled principle of law that mere possession of land how-so long ever it may be, it will never mature into ownership by adverse possession unless it is proved that the possession was adverse to the real owner of the property and to the knowledge of the real owner; and the person claiming the adverse possession enjoyed the property with animus to enjoy the said property, has been established. In short, unless all the ingredients constituting adverse possession have been established, the title of the property will not mature into ownership by adverse possession. Under these circumstances, I find that the finding recorded by both the lower courts that the respondents have acquired title by adverse possession is bad in law and the evidence on record does not warrant such matter. I, therefore, hold that the appellants are owners of suit land and they are entitled to recover possession of suit lands from the respondents. Therefore, I quash and set aside the finding recorded by both the lower courts on the point of adverse possession and pass the following order :---
ORDER
(a) Appeals are allowed.
(b) The appellants/plaintiffs are owner of suit land and the defendants/ respondents are directed to hand over possession of suit land to the appellants/plaintiffs. Plaintiffs/appellants are entitled to obtain possession of suit land by filing execution proceedings.
(c) In the facts and circumstances of case, I am not inclined to grant costs of the proceedings.
17. Appeals allowed.