Karnataka High Court
Alla Baksh vs Mohd. Hussain on 11 September, 1995
Equivalent citations: ILR1996KAR1340, 1996(2)KARLJ336, 1996 A I H C 4105, (1996) 2 KANT LJ 336
JUDGMENT Hari Nath Tilhari, J.
1. This is plaintiff's Second Appeal from the Judgment decree dated 7.8.1983, delivered by the Civil Judge, Gulbarga, in Regular Appeal (Civil) No. 216/1981, which had also been preferred by the plaintiff -appellant, challenging the Judgment and decree dated 15.9.1981, delivered by the Munsiff, Chittapur, in Original Suit O.S. No. 74/1978, dismissing the plaintiff's first Civil (Regular) Appeal affirming the Judgment and decree of the Trial Court dismissing the plaintiff's claim in the suit for redemption of mortgage.
2. The facts of the case in brief are that the plaintiff - appellant filed the suit for redemption of the suit property alleging that his father had mortgaged the property in suit with the 1st defendant -respondent No. 1, with possession for a mortgage consideration loan amount of Rs. 500/-, sometimes in the year 1960, after executing a deed, on a stamp paper with a condition that whenever mortgage amount is paid, the 1st defendant - respondent No. 1, is to deliver the vacant possession of the suit property, as per terms of Mortgage Deed. It was provided that defendant No. 1, would pay the municipal taxes and enjoy the property and there will be no interest on the mortgage sum. Plaintiff alleged that his father died some 7 years prior to the date of the suit. The plaintiff further alleged that plaintiff made several requests and demands to the defendant - respondent No. 1, to deliver the vacant possession of the property, but, the 1st defendant did not accede to the request and thereafter, plaintiff got a notice issued for being served on defendant No. 1, to the same effect calling upon the 1st defendant - respondent No. 1, to hand over vacant possession of the suit property and to receive the mortgage amount, that is, Rs. 500/-. The Plaintiff alleged that he did neither receive any reply nor that notice was complied with. Plaintiff has further alleged that defendant No. 1, has executed a Sale Deed in favour of 2nd defendant - respondent No. 2, that Sale Deed is illegal and not binding on the plaintiff - appellant. The plaintiff with these facts and allegations filed the suit giving rise to this Appeal, for redemption and for direction to the defendants - respondents to deliver the possession of the mortgaged property and to receive the sum of Rs. 500/-.
3. That the defendants - respondents put in appearance filed the written statement and contested the plaintiff's claim. The defendants denied the plaintiff's case to the effect that the property in dispute was mortgaged by the father of the plaintiff - appellant for a sum of Rs. 500/- as loan. He denied that there was any such agreement as alleged in the plaint to return the property. The defendant No. 1, denied the receipt of the notice alleged to have been sent by the plaintiff. The defendant No. 1, asserted that there being no transaction of mortgage entered into between the plaintiff's father and the contesting 1st defendant, no question of decree for redelivery of possession of the property in suit or of receiving the sum of Rs. 500/-arises. The defendant further, alleged that the father of the plaintiff Shaik Mohiudeen, agreed to sell the property in question for a sale consideration of Rs. 1700/- in favour of the defendant - respondent No. 1. The defendants asserted in the written statement that on 29.9.1955, under the agreement to sell, a sum of Rs. 700/- was paid in advance to the plaintiff's father as earnest money and for the same, he executed a receipt dated 29.9.1955. There, it was also agreed that the balance sum of Rs. 1000/- shall be paid towards the transaction of sale of the property in dispute within one year and thereafter, plaintiff's father would executed the needed sale deed. The defendants further averred that on September 2nd, 1956, a sum of Rs. 1000/- was paid by 1st defendant - respondent No. 1, to the plaintiff's father, who has executed a document of sale on the said date, that is, 2.9.1956, in favour of the 1st defendant - respondent No. 1, but, due to illness of the plaintiff's father on that day, it could not be registered and had promised to get the Sale Deed registered after he recovered from illness. The defendants also has averred that plaintiff's father got the name of the defendant No. 1 mutated in the municipal records and 1st defendant - respondent No. 1, started paying the taxes of the properties as owner thereof. The defendants took the plea that as the possession had been handed over under the transaction of sale on 29.9.1955, when part of consideration had been received by the plaintiff's father and thereafter, the balance was also paid on 2.9.1956 and the plaintiff's father got the name of the 1st defendant mutated in the Municipal records and the 1st defendant paid the tax of the property as owner thereof. The defendant became its owner and treated himself to be the owner of the property from the date of entering into contract of sale and payment of advance and thereafter, he continued to be in possession of the suit property openly and adversely to the knowledge of the father of the plaintiff for a period of more than 12 years and as such, the plaintiff had perfected his title of property by adverse possession as well, in case, the sale deed or the deed or the unregistered documents are found to be invalid. The defendant further alleged that the defendant No. 1 treating himself to be the absolute owner of the property in dispute executed the Sale Deed of the aforesaid property in suit, in favour of 2nd defendant on 18.7.77 and thereon, 2nd defendant became the owner and was in possession of the property and stepped into the shoes of defendant No. 1. Defendant No. 2, adopted the contentions and pleas raised by defendant No. 1 and in addition thereto, 2nd defendant took the plea that he was bonafide purchaser for value and it was pleaded that plaintiff had no cause of action for the suit in question and alleged that the suit was liable to be dismissed.
4. The Trial Court framed the issues and Issue No. 6 relates to the plea of adverse possession, are as follows:
1. Does plaintiff prove that his father had mortgaged the suit property house No. 3-7-18 and 16/322 (old and new) to the defendant for Rs. 500/- in the year 1960 with a condition that the defendant should hand over the possession of the suit property whenever the amount is paid?
2. Does plaintiff prove that there was an agreement that defendant should pay the Municipal tax and that no interest should be charged on the mortgage amount?
3. Does plaintiff prove that he issued a registered notice to the defendant on 15.7.78 for redemption of the mortgaged property?
4. Does the defendant prove that plaintiff's father has sold the suit property for Rs. 1700/- as averred in para 10 of the written statement?
5. Does he further prove that plaintiff's father got the name of defendant mutated in the municipal records as owner? Does he further prove that he paid the municipal tax as owner?
6. Does defendant prove that he has perfected the title over the suit properly by adverse possession?
7. Does defendant prove that he has sold the suit property to Mohd. Hajee, S/o Mohad. Abu Bakar, under registered sate deed dt:18.7.77 and that the said person is in possession of the suit property?
8. Whether the plaintiff is entitled to the reliefs sought for?
9. What order or decree?
5. After examining the material on record and after trying the issues in question, the Trial Court held that plaintiff - appellant failed to prove that the property in suit was mortgaged by the plaintiff's father in favour of 1st defendant - respondent No. 1. Further, the Trial Court held that the defendant proved that the agreement to sell as pleaded by defendants, had been entered into and Plaintiff's father had sold the suit property for a sum of Rs. 1700/-, as alleged by the defendants and that a sum of Rs. 700/- was paid in advance and Ex.D1 was the receipt executed in respect thereof and later on plaintiff's father took the remaining amount of Rs. 1000/- during his sickness and executed the Deed Ex.D2. That the evidence on record proved that the 1st defendant has been in continuous possession of the suit property as a owner, that the possession of the defendant -respondent No. 1, was not permissive and that the defendant No. 1, had perfected his title to the property in suit by adverse possession, as he has entered into possession under the transaction exhibited by the unregistered documents of sale, Lastly, having recorded these findings, the Trial Court dismissed the plaintiff's suit for injunction.
Feeling aggrieved from the Judgment and decree of the Trial Court the plaintiff - appellant filed first Regular Civil Appeal No. 216 of 1983.
6. The Lower Appellate Court, after having heard the Counsel for the parties, dismissed the plaintiff's appeal and confirmed the Judgment and decree of the Trial Court, The Lower Appellate Court up-held the finding of the Trial Court that transaction of mortgage as claimed by the plaintiff - appellant has not been established. It further, found that Exs.D1 and D2, admittedly were not registered documents under Ex.D2, on account of being non-registered title could not pass. That as the defendant had entered into possession in the year 1955 and had continuously been in use, occupation and enjoyment of the property since 1955, for a period of more than 12 years and that his name was also entered and mutated as owner in the Municipal records. The possession of the 1st defendant being under a transaction which was required to be entered by registered document, but had been entered without any registered deed as such its being invalid, the 1st defendant - respondent No. 1, perfected his title by adverse possession, on account of his possession being continued for more than 12 years as such. Lower Appellate Court as such, found that plaintiff - appellant has not been entitled to get the decree for recovery of the suit property from the 1st respondent - respondent No. 1 as on account of 1st defendant's adverse possession, the plaintiff's title if any had been lost Lastly, the Lower Appellate Court held that as defendant No. 1, had perfected his title of the suit property by adverse possession it does not require that the plea of bonafide transaction taken up with defendant No. 2, be examined. Having recorded these findings, the Lower Appellate Court dismissed the plaintiff's appeal. It confirmed the Trial Court's Judgment and decree dismissing the plaintiff - appellant's suit giving rise to this appeal.
Having felt aggrieved from the Judgment and decree of the Trial Court including that of the Lower Appellate Court, the plaintiff has come up with this Second Appeal.
7. I have heard Sri Parameshwara N. Hegde, holding brief for Sri S.M. Kaloor, learned Counsel for the appellant. Learned Counsel for the appellant invited my attention to the substantial Question of Law as framed by the Hon'ble Judge admitting the Second Appeal and submitted that the finding regarding adverse possession in favour of 1st defendant - respondent No. 1 was illegal. Elaborating further, the learned Counsel submitted that when defendant - respondent No. 1, was in possession of the property treating himself to be the owner of the property and not considering the plaintiff to be the owner of the property, there was no animus which is necessary in the matter of claiming hostile title. In this connection, learned Counsel for the plaintiff - appellant made a reference to a Single Judge Decision of this Court in DANAPPA REVAPPA KOLLI v. GURUPADAPPA MALLAPPA PATTANA SHETTI, , the learned Counsel for the plaintiff - respondent further submitted that the defendant - appellant was claiming title on the basis of transaction of sale of 1955-56. That no title did pass on to the defendant - appellant under that transaction, even if Ex.D2, has been described as the Sale Deed, for the reason that neither of the Deeds in question neither Ex.D1 nor Ex.D2 were registered documents. That no doubt, plaintiff has alleged that possession has been delivered to the defendant - appellant by plaintiff's father. Lastly, the learned Counsel submitted that even if the defendant had been in continuous possession for 12 years, he cannot be held to have perfected title by adverse possession on the basis of those Sale Deeds Exs.D1 and D2, as there was lack of animus. The learned Counsel for the appellant submitted that even if the transaction of sale was illegal and the defendant was in possession, but, he claimed himself to be the owner of the property, so, there has been no animus to the effect of claiming title by adverse possession against the plaintiff - respondent. Lastly, the learned Counsel for the appellant submitted that the appellant at first should have recognised the plaintiff to be the owner and then, he should have claimed the hostile title. Learned Counsel also tried to make reference to the Decision of Privy Council in CHARLES EDWARD VICTOR SENEVIRATNE COREA v. MAHATANTRIGEY ISERIS APPUHAMY, AIR 1914 PC 2433. Learned Counsel for the appellant also made reference to the Decision of the Patna High Court in the case of THAKUR SAH v. SHEO PUJAN PRASAD, . The learned Counsel for the appellant has attempted to contend the plea of adverse possession succintly in the written statement and evidence of animus has not been adduced. No other submissions has been advanced on behalf of the Counsel for the appellant.
8. On behalf of the respondent, appearance has been put by Sri. Ajit J. Gunjal, who has disputed the contentions made on behalf of the appellant. Sri Gunjal, submitted that plea of adverse possession had been taken at the initial stage ie in written statement. Further, he submitted that issue had been pressed on those pleadings and issues had been framed by the Trial Court and had been tried after recording the evidence. That this has been admitted fact that possession had been delivered to the defendant - respondent No. 1, by the plaintiff's father, though, plaintiff has stated that it was under a transaction of mortgage which the plaintiff has failed to prove as found by the Courts below. That plaintiff has failed to prove the transaction of mortgage is a concurrent finding of fact binding on the parties in the Second Appeal, as it is not vitiated by any error of law of substantial nature. Sri Gunjal, further, submitted that the two Courts below have also found that there has been a transaction of the property and the agreement to sell was entered into on 29th September, 1955. Under that sale transaction, the possession of the property had been delivered and Rs. 700/- was paid as advance and thereby, it was agreed that the balance amount of money will be paid within one year and then, the Sale Deed would be executed after receipt of that amount of Rs. 1000/-. That it has been found by the Courts below as a fact that a sum of Rs. 1000/- has been paid on 9.9.1959 and that when the advance sum of Rs. 700/- was paid under the transaction, the plaintiff's father had agreed to execute the Sale Deed. That the plaintiff's father also got the name of the defendant entered in the Municipal records as owner. That, the sale transaction was entered into and executed by unregistered documents Exs.D1 and D2. That the possession of the property in dispute had been delivered to the 1st defendant - respondent No. 1, by the father of he plaintiff -appellant in September, 1955 and since then, the defendant respondent No. 1 continued to be in possession continuously without interruption and openly claiming himself to be the owner of the property. The learned Counsel for the appellant submitted that when defendant - respondent No. 1 had no earlier title to the property in dispute at all and when he entered into possession of the suit property under the garb or coverage of a sate transaction which was unregistered one and on that count, it may be said to be illegal or invalid and his possession from the date of the sale transaction itself became adverse, when he started and continued his possession as owner of the property. That according to the learned Counsel for the appellant, by this act of the 1 st defendant and as well as mutation of entry in the name of the 1st defendant - respondent No. 1, in the municipal records, hostile intention had been unequivocally and openly executed. Lastly, the learned Counsel for the 1st defendant -respondent No. 1, submitted that it is well settled law that a person, who enters into possession of properly under an invalid transaction of transfer by way of sale etc. and if he has continued in possession for more than 12 years, then, even if the illegal transfer by itself may not convey the title, but, the adverse possession which commences from the date of entering into possession under the illegal transaction or the sale transaction, entered upon not in accordance with law, then the person acquires and perfects title to the property on the completion of 12 years as owner. Finally, the learned Counsel for the respondent No. 1, had made reference to certain observations relied upon by the learned Counsel for the appellant in Charles Edward Victor Seneviratne Corea v. Mahatantrigey Iseris Appuhamy, which according to him distinguishable on facts and not applicable to the present case.
9. I have applied my mind to the contentions of the learned Counsel for the parties. Article 65 of the Limitation Act reads:
"Article 65 - For possession of immovable property or any interest therein based on title - 12 years. When the possession of the defendant becomes adverse to the plaintiff."
Article 27 of the same Act reads as under:
"Article 27 - For compensation for breach of a promise to do anything at a specified time, or upon the happening of a specified contingency.- Three years.- When the time specified arrives or the contingency happens."
Section 27 of the Limitation Act provides that on the determination of the period hereby limited to any person for instituting a suit for possession of any properly, his right to such properly shall be extinguished. A perusal of the Section per se reveals that this Section applies and controls the operation of the right to the property in cases, where the period of limitation over suit for possession of the property expires and suit is not filed. It provides that right to property of person shall be extinguished when it provides, as to when the right of the person to his property shall extinguish and in what cases it shall extinguish. The earlier part of the Section reveals that if there is a cause of action for a person to file a suit for possession and the suit for possession is not filed by him either on the basis of title or on the basis of possession and later dispossession, if the period of limitation prescribed hereof expires without suit being filed, then the right, title and interest of that therein shall extinguish. This Section provides an exception to the general principle of law that limitation bars the remedy only, but, does not extinguish the right, but, so far as Section 27 is concerned, it expressly provides that when there exists a cause of action in favour of a person to file a suit for possession, then, if the suit is not filed within a period of limitation prescribed, and the period of limitation stands determined, then not only period of limitation come to an end, but, his right will also comes to an end and it is to stand extinguished. The cases, where, the possession of the defendant becomes adverse to the plaintiff, it means that title of the owner of the property would extinguish on the expiry of the period of 12 years, in cases covered by Article 65, if the suit for possession had not been filed by the plaintiff, that is, the owner of the property for possession within that period. The question is, when can the possession be said to be adverse? This has been dealt with in many cases,
10. Simply possession for 12 years may not become adverse. The possession must for 12 years be continuous possession and it must be hostile in its nature. In the present case, the facts are established that the plaintiff failed to prove his case that the mortgage was executed by his father, but, he admits that possession was transferred by his father to defendant No. 1. The defendant's case has been found by the Courts below to be proved that plaintiff's father entered into transaction of sale of the property in dispute and that transaction had been entered into in 1955 and the entire sale consideration had passed on in 1956. It has also been found that defendant - transferee entered into possession under that transaction in 1955 and entire sale consideration had also been paid to the plaintiff's father. The 1st defendant - Respondent No. 1, thereafter, admittedly, continued in possession thereafter without interruption and further, that his name was also got entered into the Municipal records as the owner of the property. The plaintiff's ie appellant's Counsel as well as the respondent defendant's Counsel admit that defendant has been claiming himself to be the owner of the property. When defendant himself has been claiming to be the owner of the property since after the sale transaction, may be that the said transaction was not entered in accordance with the law by a registered documents, but it was under an unregistered document. The possession of the defendant which had started under the unregistered transaction and under the garb thereof, the ownership had been transferred. The defendant started using to be in possession and continued in possession claiming himself to be the owner by itself, sufficient to show hostile title and possession of the 1st defendant - Respondent No. 1, cannot be said to be permissive. When, I so hold that defendant's possession under the illegal transfer was adverse from the very inception, I find support from the Decisions of the various High Courts including the High Court of Allahabad, Chief Court of Oudh, Madras Erstwhile Nagpur, as well as the Decision of the Supreme Court which are being mentioned hereinafter.
In the Case of MAHIPAL SINGH v. SARJOO PRASAD, AIR 1926 Oudh 141, Hon'ble Gokaran Nath Misra, Justice, as he then was, relying upon the Privy Council's Decision in VARADA PILLAI v. JEEVARATHNAMMAL, AIR 1919 PC 44 observed as under:
"Although the defendants originally entered into possession under an unregistered sale deed, yet the defect in their title has now been cured by their having been in such possession for over 12 years. The principle is clearly established by a decision of their Lordships of the Privy Council in VARADA PILLAI v.JEEVARATHNAMMAL (A.I.R. 1919 P.C. 44), their Lordships have held that if possession is acquired by a person under a invalid title and he continues to remain in possession for more than 12 years, although the document relating to his title may be invalid for want of registration or any other ground, yet the possession having lasted for more than 12 years, that title becomes an unassailable one."
In the case of Mt. MALUKA KUNWAR v. PATESWAR SINGH, AIR 1926 Oudh 371, Full Bench of the Chief Court of Oudh constituted by Hon'ble Judges held that:
"The Courts below are agreed that in the year 1904 Randhir Singh made an oral gift of the property in suit in favour of Mt. Maina and that Mt. Maina entered into possession of the gifted property by virtue of her title under the said gift. The gift not being in writing and registered, was invalid, but the Courts below have held that in the circumstances Mt. Maina acquired title to the property in suit by adverse possession against Randhir Singh and his heirs, the present defendants.
In second appeal Mr. Hyder Hussein on behaff of the defendants - appellants argued that the title which Mt. Maina acquired by prescription should enure to the benefit of the heirs of the last male owner of the property in suit and it is agreed that the defendants are such heirs. The learned Counsel supported his argument by quoting the decision of their Lordships of the Privy Council in the case of LAJWANTI v. SAFA CHAND (A.I.R. 1924 P.C. 121). We are of opinion that the decision relied upon does not bear out the contention which the learned counsel has raised on behalf of his clients. In that case the widows all along professed to hold the property for their lives only and there was a judicial decision in respect of their interest in the property which they held and that decision was that they held the property merely for their lives. This is not the case here. The present case, it appears to us, is covered by the decision of the Privy Council in the case of Varada Pillai v. Jeevarathnammal [46 I.A. 285 (P.C.)]."
That in the just above Decision the reference is of case of Varada Pillai v. Jeevarathnammal. These two Decisions and also the Decision of the Chief Court just referred above laid down the law that when possession is taken under invalid deed of transfer from that date of the deed the possession is taken to be adverse. Similar view has been expressed by the Allahabad High Court after the amalgamation of the Allahabad High Court and the Chief Court also, in Kr. WASTQ ALI v. THE DIRECTOR OF CONSOLIDATION AGRA, , it has been laid "down in Paragraph-8 thereof, following its earlier Decision in BHARIT v. BOARD OF REVENUE, :
"If a person comes in possession under an invalid grant, the nature of his possession is adverse; and if he continues in such possession, he acquires title by adverse possession on the expiry of the statutory period."
Similar view had also been expressed by a Division Bench of the Madras High Court in the case of S.K. VENKATASUBRAMANIA AYYAR v. S. SIVAGURUNATHA CHETTIAR, "On the other hand, if the original transfer was void, then, the alienee would have been in adverse possession since the date of transfer i.e., 1900 in the case above put. The above is the effect of 44 Mad 831 (Vidya Varuthi v. Balaswami Iyer (1922) 9 A.I.R. PC 122 = 44 Madras 891 (PC), 12 Pat 251 (60 I.A. 124 = 12 Pat 251 (PC) and 46 Mad 751 (50 I.A. 295 = 46 Mad 751 (PC) and the cases there cited and later cases such as A.I.R. 1935 PC 44 (62 IA 47 = 57 All 159 (PC) which follow the above. The 12 Pat 251 group is dealing with the case of a transfer that is effective upto a time; the 46 Mad 751 group with cases void ab initio. Both groups date the adverse possession from the moment the alienee is without lawful title. That time is, in the case of a void transfer, the date of the transfer; in the case of a voidable transfer, the date of the avoidance; in the case of a transfer effective for a period (whether because of estoppel or otherwise), the date of the termination of the period."
In COLLECTOR OF BOMBAY v. MUNICIPAL CORPORATION OF THE CITY OF BOMBAY, Das, J., constituting with the three more Judges in his Judgments, observed as under:
"Both parties acted on the basis of that Resolution and the predecessor in title of the Respondent - Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution end the terms contained therein, the Respondent - Corporation and its predecessor in title spent considerable sums of money in levelling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position *of the respondent - Corporation and its predecessor in title in relation to the land in question? They were in possession of the land to which they had no legal titie at all. Therefore, the position of the respondent - Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant."
In the case of STATE OF WEST BENGAL v. THE DALHOUSIE INSTITUTE SOCIETY, , the just above mentioned Decision of the Supreme Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, had been followed with approval, the Supreme Court reiterated the law on the same lines.
In the case of SMT. CHANDRAKANTABEN J. MODI & NARENDRA JAYANTILAL MODI v. VADILAL BAPALAL MODI, , their Lordships of the Supreme Court has also taken the similar view that:
"Person entering into possession of the property claiming ownership under an illegal deed of transfer, if he continues to be in possession either by ownself or his agent for the period of more than 12 years, he acquires the title by adverse possession."
In that case, the claimant had entered into possession under the Gift Deed which was unregistered and the Court held that the title became adverse from 1946 and she perfected title on account of her continued possession till 1960 under invalid gift.
11. This Decision - , also establishes the principle that possession, of a person having no title in the property under invalid Deed of Transfer, his possession from the date of his entering into possession under that invalid deed becomes prima facie adverse to that of the owner. When he continues in possession for a period of more than 12 years, title by adverse possession accrues in favour of that person as owner. This being the settled position of law by their Lordships of the Privy Council and the Supreme Court, in my opinion, the Courts below did not commit any error in holding that 1st defendant - respondent No. 1, perfected title by adverse possession. When the defendant claimed ownership on the basis of a invalid Deed of Transfer, the title against the real owner of the property, in my opinion, was sufficient exhibition of hostile title. The learned Counsel for the plaintiff - appellant relied on the case of Privy Council in Charles Edward Victor Seneviratne Corea v. Mahatantrigey Iseris Appuhamy, AIR 1914 PC 2433. In my opinion, that case is of no help to the present appellant. A co-heir in that case entered into possession of that property and remained in uninterrupted possession and the question whether he perfected title by adverse possession against an another co-heir. The Lordships of the Privy Council opined as to the possession being adverse, the defendant entering into possession and having a legal title to enter could not vest himself of that title by pretending that he had no title at all. Further, their Lordships of the Privy Council observed that his title must have enured benefit to the coparcenary. The possession of one can never be considered adverse if it can be referred to law or title. Their Lordships of the Privy Council also observed that over title by adverse possession against co-heir, the claimant must prove ouster of the co-heir separately and Unless the ouster of the co-heir is not proved, the co-heir cannot get title or adverse possession against co-heir, because, possession of a co-heir is also for the co-heir. One co-sharer represents the interest of another co-sharer. So, in this case ouster of the co-heir was also got to be established. In this view of the matter, this Decision also does not apply to the present case.
The case Thakur San v. Sheo Pujan Prasad, relied on by the learned Counsel for the appellant, in my opinion, is also not applicable to the facts of the present case, as there is nothing in the present case either in the plaint or in evidence to show as to when the possession of the plaintiff became adverse if at all. A mere statement in the plaint that plaintiff has acquired title by adverse possession is not enough to raise such a plea.
12. In the present case, as per pleadings contained in paragraphs 10 to 13 of the written statement, it has been indicated how and from what date, the possession of the 1st defendant - respondent No. 1, became adverse and hostile and it has been stated that it became hostile and adverse from the date the defendant entered into possession under an invalid Deed of Transfer, that is, from the date 29.10.1955 and that the defendant continued in possession of the property. So, in this case, as to the facts do indicated, Patna High Court's Decision is also of no avail to the teamed Counsel for the appellant. As I have indicated, possession has been put into by a person, who had no title of the property under an invalid deed of Transfer is prima facie evident and indicative of hostile title and hostile intention of the person, who entered into possession. In my opinion, the animus has been indicated by persons claim to be owners of the property under the invalid deed of title and therefore, the Decision in Danappa Revappa Kolli v. Gurupadappa Mallappa Pattanashetti, is also of not help and assistance to the appellant, as the Decision is distinguishable on facts as well. In the present, case the question for consideration before the Court was as to what would bo the nature of possession of a person, who had no title of the property and who has entered into possession of the property under an invalid Deed of Transfer and there is any such question that if such a person continues in possession for a period more than prescribed limitation for suit, whether such person would acquire title by adverse possession? and that has not been the question before the learned Single Judge Decision in Danappa Revappa Kolli's case which cannot be taken to be an authority for the purpose of question involved in this case.
13. As it is well settled that the Decisions of the Privy Council and the Supreme Court mentioned above that possession of a person under an invalid Deed of Transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid Deed and that on completion of continuous possession for the requisite period of 12 years or more, such person acquires title by adverse possession. In my opinion, the Courts below did not commit any error of law or of jurisdiction in dismissing the Plaintiff's claim and in holding that defendant acquired title by adverse possession, particularly when the case pleaded by the plaintiff has not been established at all.
Thus considered in my opinion, Second Appeal is devoid of any merits and as such, deserves to be dismissed and it is hereby dismissed. The Judgments and decrees of the Courts below are confirmed. No order as to costs.