Gujarat High Court
Amba Gokal vs Parbat Bhuta And Anr. on 6 August, 1991
Equivalent citations: (1992)1GLR399
JUDGMENT J.N. Bhatt, J.
1. The appellant/original plaintiff has challenged the legality and validity of the judgment and decree passed by the learned Civil Judge (Senior Division), at Amreli, in Special Civil Suit No. 10 of 1974, dismissing the suit for possession of immovable property bearing old Revenue Survey No. 84 (new Revenue Survey No. 208/2), admeasuring about 2 Acres and 22 Gunthas, which is hereinafter referred to as the "disputed property" for the sake of convenience and brevity. The appellant, inter alia, contended that the agricultural land bearing old Revenue Survey No. 84 and situated, at Kolada, in Kunkavav Taluka of Amreli District, was ancestral property and was partitioned alongwith other ancestral properties between the brothers. Pursuant to the partition, the appellant and his brother, Jivraj Gokal got equal share out of the said land. The total area of the said land was 25 Acres and 16 Gunthas, out of which, according to the appellant's case, he and his brother, Jivraj, got 12 Acres 28 Gunthas, each as their shares. There is no dispute about the fact that Kolada is a village where the disputed property is situated and in old Saurashtra State, 1 Acre was considered equal to 2-1/2 (two and a half) bigha. Thus, according to the case of the appellant/original plaintiff, his brother, Jivraj, was to be in possession of the land admeasuring 12 Acres and 28 Gunthas only. It is further pleaded that the respondents have made encroachment in respect of land admeasuring 2 Acres and 22 Gunthas. The respondents who are the original defendants, purchased the disputed property from the brother of the appellant, namely, Jivraj Gokal. Therefore, it was pleaded by the appellant that the possession of 2 Acres and 22 Gunthas in the land bearing Revenue Survey No, 208/2 belonging to him was illegally taken by the respondents and they are trespassers. The appellant requested the respondents to vacate the possession of the disputed property. However, they did not vacate. Therefore, the appellant/original plaintiff filed the suit for taking possession of the disputed property and for mesne profit of the disputed property from the date of filing of the suit till the recovery of the possession from the respondents/original defendants.
2. Respondents appeared and resisted the suit by filing written statement, Ex. 11. There is no dispute about the fact that they are the purchasers of the disputed land from Jivraj Gokal, the brother of the appellant. They, inter alia, contended that the disputed property was in possession of Jivraj Gokal after partition of the property between the brothers and deceased Jivraj Gokal had sold the land received by him in the partition to them. The sale deed was executed by deceased Jivraj Gokal in favour of the respondents on 20th February, 1961, which is produced, at Ex. 45. The agricultural land bearing old Revenue Survey No. 84 was given new Revenue Survey No. 208, which was divided between the brothers and the share which came to the share of deceased Jivraj Gokal was sold away by virtue of the aforesaid sale deed. It was denied that the land bearing Survey No. 208 was equally divided between the appellant and his brother, deceased Jivraj Gokal. The respondents further contended that as the appellant was given the front portion of Survey No. 208 and it was a land with better quality, deceased Jivraj Gokal was given more land. Thus, according to their contention, the partition was made not as per the quantity of the land but as per the quality of the land. Since there was no actual revenue survey in respect of the agricultural land bearing Survey No. 208, the boundary marks were fixed in presence of disinterested persons and the appellant and his brother, deceased Jivraj Gokal. After partition, the appellant and his brother, deceased Jivraj Gokal started tilling their respective share, out of Survey No. 208. Thus, the respondents contended that deceased Jivraj was in actual possession of the disputed property since the date of partition and he had sold the disputed property to them by virtue of the sale deed. It is further contended that they are in possession of the disputed property since the date of the sale deed in their favour in 1961. The measurements and extent of agricultural land purchased by them were approximately stated as there was no regular revenue survey in respect of the agricultural lands at the time of partition and purchase. So, the property which was purchased by them was described as per the possession held by the parties at the relevant time. The respondents/original defendants raised dispute with regard to the jurisdiction and also the plea of limitation. Thus, alternatively, the respondents pleaded that they have become the owner of the disputed property by adverse possession.
3. On appreciation of the evidence on record, the trial Court was pleased to hold that the land bearing Revenue Survey No. 208/1 of village Kolada, admeasuring about 12 Acres and 28 Gunthas came to the share of the original appellant and the remaining land bearing new Revenue Survey No. 208/2 (old Survey No. 84) admeasuring 12 Acres and 28 Guntlias came to the share of the deceased brother of the appellant, Jivraj Gokal. The plea of the respondents that in the partition of the property, the appellant was given lesser land bearing S. No. 208/1 as he was given the front portion, which was of good quality, was not accepted by the trial Court. However, the trial Court found that the respondents/original defendants became owners of the disputed property by adverse possession. Therefore, the suit of the appellant/original plaintiff for possession was held to be time barred and consequently it was dismissed.
4. Being aggrieved by the said judgment and decree, the original plaintiff has, now, come up before this Court in appeal by invoking the aids of Section 96 of the Code of Civil Procedure, 1908 ("Code" for short hereinafter), challenging its legality and validity.
5. Learned Counsel for the appellant has contended that the findings of the trial Court that the suit was barred by limitation and that the disputed property is acquired by the respondents by adverse possession, are illegal and contrary to the evidence on record. In order to appreciate these contentions, it would be necessary to refer the relevant material on record,
6. There is no dispute about the fact that the disputed property bearing Old Revenue Survey No. 84 was not surveyed by the Revenue Department until 1962. The disputed property is a part of old Survey No. 84 and the old Survey No. 84 was given new Revenue Survey No. 208 in 1962 and before that the land was partitioned between the appellant and his brother, deceased Jivraj Gokal alongwith other properties. After partition of the said Survey Number, a part of the said property which came to the share of deceased Jivraj Gokal was given new Revenue Survey No. 208/2 and the land which came to the share of the appellant/original plaintiff was given Revenue Survey No. 208/1.
7. The respondents/original defendants purchased the land possessed by deceased Jivraj Gokal by virtue of a sale deed dated 20th February, 1961, produced, at Ex. 45. According to the said sale deed, the respondents purchased a part of the land bearing Old Survey No. 84 and it was described as 'Khijadavala Big Field', admeasuring about 13 Acres and 8 Gunthas, out of total 22 Acres and 34 Gunthas of land of Old Survey No. 84. However, the survey of the lands of village Kolada, where the disputed property is situated, was carried out by the Revenue Department, on 22nd December, 1962. After the survey, the respondents found that the land purchased by them by virtue of sale deed, Ex. 45, on 20th February, 1961, was 15 Acres and 10 Gunthas instead of 13 Acres and 8 Gunthas. Therefore, a rectification in sale deed was obtained from Jivraj Gokal, which is produced at Ex. 46, dated 23rd May, 1963. Thus, the measurements mentioned in the sale deed, Ex. 45, were approximate and after the survey, the correct measurements were found and, therefore, rectification was made in the sale deed by virtue of registered deed, Ex. 46.
8. The finding of the trial Court that the defendants are in possession of the disputed property since they purchased the [and from Jivraj Gokal in 1961, and before that it was in possession of deceased Jivraj Gokal, is, fully, justified by the evidence on record. The trial Court has also held that the suit is barred by limitation. This finding of the trial Court is also fully, supported by the evidence on record.
9. The appellant/original plaintiffs filed the suit for possession of the disputed property on 16th April, 1974. The suit is based on title. For possession of any immovable property or any interest herein, based on title, the suit is required to be filed within a period of 12 years under the provisions of Article 65 of the Limitation Act, 1963 ('Act' for short hereinafter). The period of limitation prescribed is 12 years and time would begin to run from the date when the possession of the defendants became adverse to the plaintiff. This Article, therefore, provides a period of 12 years for filing a suit for possession of immovable property or any interest therein based on title. Therefore, it was incumbent upon the plaintiff to show that he was dispossessed within a period of 12 years prior to the date of filing of the suit, i.e., 16th April, 1974. The appellant/original plaintiff failed to show that he was dispossessed during the aforesaid period of 12 years. There is sufficient evidence on record to hold that the defendants were in actual possession of the disputed property for a period more than 12 years prior to the date of filing of the suit. The sale deed, Ex. 45, dated 20th February, 1961 and subsequent registered deed for rectification, Ex. 46, dated 23rd May, 1963 coupled with the oral evidence on record, clearly go to show that the suit is barred by limitation. Therefore, the finding of the trial Court that the respondent/original defendants have acquired title by adverse possession in the light of the evidence on record is, fully, justified.
10. The contention of the appellant that the respondents made encroachment after purchase of the land from Jivraj Gokal, is, rightly, disbelieved by the trial Court. The trial Court has also, rightly, held that after death of father of the appellant, the partition was effected and deceased Jivraj Gokal, the brother of the appellant, must be in possession of the land bearing Revenue Survey No. 208/2 for a period of about 20 years, is also, fully, supported by the evidence on record. The revenue survey was not made in respect of agricultural lands situated in village Kolada before 1962. Therefore, approximate measurements were mentioned in the sale deed, Ex. 45. After the survey was carried out, it was found that the land coming into the share of deceased Jivraj Gokal and purchased by the respondents in 1961, and given the new Revenue Survey No. 208/2, was admeasuring 15 Acres and 10 Gunthas instead of 13 Acres and 8 Gunthas and, accordingly, a registered rectification deed was made, on 23rd May, 1963, as per Ex. 46. The revenue survey map is produced, at Ex. 40. Deceased Jivraj Gokal, the predecessor in title of the respondents, must be in actual possession of the land bearing new Revenue Survey No. 208/2 (a part of Old Revenue Survey No. 84), marked A & B in the map, Ex. 40. Though the revenue records, at Exhs. 25 and 26, in respect of New Revenue Survey No. 208/2 mentions the area of only 12 Acres and 28 Gunthas, the land in possession of the deceased Jivraj Gokal, after partition was to the extent of 15 Acres and 10 Gunthas as per the map, Ex. 40, and other evidence on record and that too, within the knowledge of the appellant/original plaintiff. Deceased Jivraj Gokal transferred the land which was in his actual possession as per the boundary description mentioned in the sale deed, Ex. 42, stating therein that the area of Revenue Survey No. 208/2 to be admeasuring 13 Acres and 8 Gunthas, but in reality on actual revenue survey, in the next year, i.e., in 1962, vide Ex. 40, survey map, the area upto mark A & B, as shown in the map, Ex. 40, of New Revenue Survey No. 208/2 was found to be of 15 Acres 10 Gunthas. Consequently, the contention of the appellant that the respondents made encroachment after purchase of the land from Jivraj Gokal, cannot be believed and is, rightly, not believed by the trial Court. Mere misdescription of the exact extent and area in the sale deed, contrary to the revenue records, at Exs. 25 and 26, would not be sufficient in absence of actual revenue survey having not been carried prior to 1962 to show that the respondents made encroachment in respect of 2 Acres and 22 Gunthas. The plea raised by the respondents that they arc in actual or physical possession of the disputed property since the date of purchase in 1961 and they purchased the land actually found in possession of deceased Jivraj Gokal, is quite probable in view of the evidence on record.
10A. It is also found from the evidence on record that the appellant is conscious about his properties and boundaries thereof and would not have remained silent for such number of years had the defendants, as such, encroached upon, as alleged, in respect of 2 Acres and 22 Gunthas of land. Placing reliance on the documentary evidence on record, the trial Court has, rightly, found that deceased Jivraj Gokal, the brother of the appellant, was in possession of the disputed property since the date of partition and thereafter the said land was sold by deceased Jivraj Gokal to respondents herein. It went on within the knowledge of the appellant. The appellant never cared for getting the lands surveyed earlier and never claimed possession till 1974. Even after the revenue survey which was conducted on 22nd December, 1962, the plaintiff did not think it expedient to file suit for possession. In fact, in view of the evidence on record, the revenue survey was carried out in his presence. The suit is filed on 16th April, 1974. The sale deed, Ex. 45, is dated 20th February, 1961. The rectification deed was made, on 23rd May, 1963, as per Ex. 46. In view of the evidence on record, the trial Court has, rightly, found that the suit is barred by limitation. The respondents/original defendants have acquired title by adverse possession.
11. Adverse possession is a relative term, though it is true that possession is prima facie adverse, mere user does not amount to adverse possession and mere possession is not adverse. There must be co-existence of two distinct ingredients. Adverse possession means, possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession, provided the true owner is not under a disability or incapable of suing. Adverse possession is a possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive, and continuous, continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by the operation of the limitation of actions. Article 65 of the Act provides a period of limitation of 12 years for filing a suit for possession of immovable property or interest thereon from the date on which the possession of the defendants became adverse to the plaintiff. Possession of the respondents/original defendants in the present case became adverse to the plaintiff for a period of more than 12 years prior to the filing of the suit, i.e., as on 16th April, 1974. Therefore, the suit filed by the appellant was barred by limitation.
12. The trial Court has, rightly, found that the plaintiff failed to show that he was in possession of the disputed property any time during the period of 12 years prior to the filing of the suit. In the event of failure to file the suit within a period of limitation as prescribed under the Act, the right to such property shall be extinguished. Section 27 of the Act provides that at the determination of the period prescribed under the Act for filing a suit for possession of any property, the right of such person to such property shall be extinguished. With the result, the respondents/original defendants would acquire a title to the property by adverse possession. The trial Court, on assessment of the evidence, has, rightly, found that the suit is barred by limitation.
13. The learned Counsel for the appellant pointed out that the appellant/original plaintiff, as stated in his evidence, at Ex. 22, had preferred an application or representation to the Collector, and contended that the trial Court has not considered this aspect. It is true, the learned trial Judge has not taken into account this aspect in the judgment. Nonetheless, this aspect does not carry the plea of the appellant any further. Merely stating that an application was preferred before the Collector in absence of particulars thereof, time or period, etc., does not help the original plaintiff in any respect. Placing reliance on the said averment in the testimony of the plaintiff, at Ex. 22, it is contended that there was a dispute in respect of the disputed property. This contention cannot be sustained in absence of material particulars about the application. The appellant/original plaintiff ought to have been stated when the application was preferred before the Collector and what were the contents thereof. Therefore, non-consideration of this aspect by the trial Court does not, in any way, affect the impugned judgment and decree. The said contention does not lend any support to the plea of that appellant/original plaintiff. This submission, therefore, deserves to be rejected.
14. No other material is indicated which would warrant interference with the impugned judgment and decree. Consequently, this Court finds that there is no substance in the present appeal.
15. In the facts and circumstances of the case and the evidence on record, the appeal is required to be dismissed and accordingly it is dismissed. Having regard to the tacts and circumstances of the case, there shall be no order as to costs.