Shyam Lal S/O Shri Jawahar Mal, Vs Patasi Devi Widow of Late Shri Late Shri Mithu Lal

The instant second appeal is preferred by the appellantdefendant No.2-Shyam Lal (deceased during pendency of second appeal) after dismissal of Civil Regular Appeal No.99/1990 on 21.12.1995 by learned Additional District

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Judge, Sikar, affirming the judgment and decree dated 07.02.1990 in Civil Suit No.41/1977 titled as Mithulal (dead) through LRs Vs. Ramniranjan and Ors. passed by learned Civil Judge, Sikar.

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The plaintiff Mithulal has filed a civil suit for declaration and permanent injunction against Ram Niranjan and Shyam Lal, and during pendency of the civil suit Mithulal has expired and his legal representatives were substituted in place of Mithulal. Learned trial Court after full trial has allowed the civil suit and passed a decree of declaration and permanent injunction in favour of plaintiff. The trial Court has declared sale deed Ex.A-58 dated 29.08.1977 in respect of suit property mentioned in para No.1 of plaint and property marked as ‘abcd’ in annexed map as null and void, executed by defendant No.1 Ram Niranjan in favour of defendant No.2 Shyam Lal. The defendants were also restrained from dispossessing plaintiff and causing obstructions in peaceful enjoyment of suit property by plaintiff. The counter claim of Shyam Lal for mandatory injunction and possession was also dismissed by the Trial Court. The defendants have preferred an appeal under Section 96 of CPC before the learned District Judge and same was transferred to learned Additional District Judge but was dismissed on 21.12.1995. During pendency of appeal, one of the legal heirs of Mithu Lal, Om Prakash has expired and his name was also deleted. 3. Aggrieved from dismissal of Civil Regular Appeal, defendant No.2, who is the subsequent purchaser has filed a Civil

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Second Appeal under Section 100 of CPC and during pendency of second appeal, Shyamlal has expired and his legal heirs have been substituted in his place. Respondent No.2 Deen Dayal has also expired and his legal heirs have also been substituted in his place. Proforma respondent Ram Niranjan has also expired and his legal heirs were also substituted.

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On 27.04.2006, following substantial question of law is framed for consideration:-

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“WHETHER, the judgments and decrees of both the learned Courts below are not sustainable in as much as the cancelled permission dated 24.07.1962 has been considered in decided issue No.2 and 3?”

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Learned counsel for the appellant while relying upon grounds of appeal submitted that Mithulal (plaintiff) has filed a civil suit for declaration and injunction against the defendants claiming ancestral property of defendant No.1 as a property in his ownership. He further submitted that the plaintiff has not filed any title document with plaint and his case is based on two contradictory pleadings, first, on basis of oral gift by ancestors of defendant No.1 and other adverse and hostile possession of suit property. He submitted that the plaintiff has claimed that the ancestors of plaintiff were family barbers of late Shri Jagan Nath Ganga Bux Joshi and nearly sixty years before the filing of suit, the suit property was orally gifted to ancestor of plaintiff and with oral gift, the possession of property was also handed over. He further submitted that the plaintiff has claimed that the valuation of

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suit property at that time was less than ₹100 and same does not require any registration. He further submitted that the plaintiff on basis of oral gift and possession of suit property has claimed ownership. He further submitted that the plaintiff has procured permission to raise construction somewhere in 1962 and since then he is the hostile and declared title holder of the property but real owner of the property has not taken any step for 12 years to evict him so on basis of adverse possession, he is the owner of suit property. He further submitted that the plaintiff has challenged a sale deed executed by defendant No.1 in favour of defendant No.2 on 29.08.1977 as it adversely affected the rights of plaintiff. He also referred para No.3 of plaint and submitted that issue No.1 was framed by learned trial Court and this issue specifically pertains to ownership and title of suit property but this issue No.1 was decided against the plaintiff. He submitted that after decision on issue No.1, the claim of plaintiff is required to be dismissed as the plaintiff has failed to show that the disputed Nohra was ever gifted orally by forefathers of defendant No.1 to ancestor of plaintiff. He also submitted that the drafting of suit is defective and plaintiff has simultaneously claimed title on basis of adverse possession but no declaration whatsoever is sought by plaintiff about adverse possession. He also submitted that a civil suit has to be decided within framework of civil law and the relief which not claimed by plaintiff cannot be granted by the trial Court but here in this

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case, the relief of declaration is granted in favour of plaintiff only on basis of adverse possession. He also referred the legal position and submitted that claim of adverse possession can only be made against real owner and not against an unknown owner. He further submitted that the plaintiff has sought injunction against the true owner but such relief of injunction cannot be sought against true owner. He also referred para No.22 of written statement and submitted that pedigree of Sukhdev Ji is also mentioned and property falls in the share of Ratan Lal and Ram Niranjan. He also referred to the alleged permission claimed by plaintiff and submitted that this permission was cancelled by Ex. A13 and the Court has failed to take note of cancellation of permission. He further submitted that a suit for adverse possession cannot be filed by plaintiff and contradictory plea of ownership by a trespasser cannot be raised in a civil suit. He further referred the evidence of plaintiff and submitted that both the Courts below have not relied upon witnesses of plaintiff on issue No.1 but the trial Court and the Appellate Court both have erroneously relied upon same witnesses of plaintiff while deciding issue Nos.2 and 3 in favour of plaintiff. He further submitted that the findings on issue No.2 and 3 were contrary to material on record and the trial court has ignored all canons of law while deciding issue No.3 against the appellant-defendant. He further submitted that both the Courts below have misread the evidence and misconstrued the principles of law. He further submitted that

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once issue No.1 is decided against the plaintiff thereafter issue No.2 could not be decided in favour of plaintiff. He also submitted that any person who is a caretaker or a trespasser has no right whatsoever to challenge the true owner on any immovable property.

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Learned counsel for the appellant also referred a Division Bench judgment of the Calcutta High Court in case of Sudhangshu Sahoo Vs. Kalipada Sahoo : 2022(3) Civil Court Cases 84 (Calcutta) and submitted that an alternative plea of ownership and adverse possession cannot allowed to be taken and the person who traces his possession to lawful title can never become an owner by adverse possession. He further placed reliance upon judgment in case of Nazma Khatoon and Ors. Vs. Bibi Halima Khatoon : 2013(3) Civil Court Cases 640 (Jharkhand) and submitted that plea of adverse possession cannot be claimed against unknown owner and once plea of adverse possession is raised, title of opposite party is presumed to be proved. It is also held that in absence of establishment of his own title, the plaintiff must be non suited, even if title is found against them. He also referred judgment in case of Union of India and Ors. Vs. Vasavi Cooperative Housing Society Limited and Others : (2014) 2 SCC 269 and submitted that the burden lies upon plaintiff to establish his own case and he cannot take advantage of weakness of other. He also referred judgment in case of Akella Lalitha Vs. Sri Konda Hanumantha Rao

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: 2022 (3) Civil Court Cases 667 (SC) and submitted that such relief in absence of pleadings should not be granted. Learned counsel has further referred judgment in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs & Ors. :2008(3) Sivil Court Cases 294 (SC) and submitted that a person in wrongful possession is not entitled to an injunction against the rightful owner. He also referred judgment in case of Bhim Singh and Ors. Vs. Zile Singh and Ors. : 2006(3) Civil Court Cases 479 (P&H) .

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Learned counsel for appellant further referred judgment in case of Sebastiao Luis Fernandes (Dead) through Lrs & Ors. Vs. K.V.P. Shastri (Dead) through Lrs & Ors. : 2014(2) CDR 345 (SC) , State of Rajasthan and Ors. Vs. Shiv Dayal and Another : (2019) 8 SCC 637, Tara Masih (D) Thr. His Lrs & Ors. Vs. Samual (D) Thr. LRs. & Ors. : 2018(1) Civil Court Cases 34 (S.C.) and submitted that principles to decide second appeal were explained by Hon’ble Supreme Court and when there is scope of interference in present appeal, same should be allowed. At last, he placed reliance upon judgment in case of Anil Rishi Vs. Gurbaksh Singh : (2006) 5 SCC 558 and submitted that when plaintiff has brought a suit on averment that sale deed concerned was fabricated and void then the burden lies upon him and no reversal of burden can be placed upon defendant. He submitted that in the instant case, the trial Court has committed serious error by placing burden of proof on defendant-appellant. Learned counsel has

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further submitted that merely on basis of findings of issue Nos.2 and 3 that the plaintiff is in peaceful possession since 1962 and he is owner on basis of adverse possession, the trial Court and the Appellate Court have declared sale deed Ex.A-58 as null and void. He further referred the issues and submitted that issue Nos.4 to 11 were neither considered and discussed by learned Appellate Court nor independent findings were recorded by the Appellate Court. He further submitted that the entire suit is based on findings on issue No.3 but the findings were perverse, adverse and contrary to legal position.

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Aforesaid contentions were opposed by learned counsel appearing for respondent-plaintiff on the ground that plaintiff has filed a suit for declaration and permanent injunction on two grounds but plaintiff has failed to established one ground even then the suit is maintainable on another ground. She referred the judgment in case of Ravinder Kaur Grewal vs Manjit Kaur : (2019) 8 SCC 729 and submitted that once 12 years' period of adverse possession is over, even owner's right to eject possession holder is lost and the possessory owner acquires right, title and interest, possessed by the outgoing person. She further submitted that once the right, title or interest is acquired, then it can be used as a sword by the plaintiff as well as a shield against defendant within Article 65 of the Limitation Act and any person who has perfected title by way of adverse possession can file a suit for restoration of possession in case of

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dispossession. She further submitted that after Larger Bench judgment in case of Ravinder Kaur Grewal vs Manjit Kaur (supra), the appellant has no right to challenge the title of plaintiff, which plaintiff has acquired by way of adverse possession. She further submitted that plaintiff has filed Ex.5 in his evidence which is a permission obtained from municipality to raise construction and this permission clearly indicates that the plaintiff was in settled possession in year 1962 but till 1977 when the sale deed was executed no action was taken by defendants to dispossess the plaintiff from suit property. She further submitted that while considering issue Nos.2 and 3 learned trial Court has considered the objection of Ratanlal about construction raised by plaintiff and same was dealt with in para Nos.21 to 23 by learned trial Court. She further referred para No.29 to 33 and submitted that while considering issue No.3, the trial Court has considered all the objections raised by the defendants in their pleadings and also in their evidence. She further submitted that the plaint was amended to include adverse possession as a ground in plaint and same is considered by learned trial Court while deciding the issue and it indicates that the defendant is well aware about amendment made in plaint to include adverse possession as a ground to acquire title of plaintiff. She further referred para Nos.42 and 43 for the purpose and also crossexamination of DW-2 and submitted that after procuring permission to raise construction, the plaintiff has raised

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construction and the objections raised by defendants or ancestors of defendants were overruled by Municipality. She further referred Ex.2 and deliberation on issue No.10 and submitted that the municipality has directed Ratanlal and Kesar Devi to get their rights decided by Civil Court. She further submitted that defendant No.1 has sought permission to raise construction in 1965 and same was challenged and objected by Mithulal and the trial Court has considered in Para Nos.32 and 58 of judgment. She further submitted that the appellant has no right to challenge the title of plaintiff acquired by him by virtue of adverse possession. She further referred Ex.A-6A, Ex.A-29, Ex.A-14 and Ex.A-1 and submitted that the permission to raise construction was only given to plaintiff on basis of possessory title and since then the defendant has not taken any action, therefore, the defendant No.2 has no right to claim any relief from this Hon’ble Court.

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Learned counsel has further referred judgment in case of

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Sriniwas Ram Kumar Vs. Mahabir Prasad and Ors. : AIR 1951 SC 177 and submitted that alternative and inconsistent allegations can be pleaded in a suit and decree can only be based on basis of proof of the pleadings. She further referred judgment in case of Mohammade Yusuf and Others Vs. Rajkumar and Ors: (2020) 10 SCC 264

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and submitted that the plaintiff has a right to use the possossory title as a sword and a shield. She also referred judgment in case of L.N. Aswathama and Another Vs. P.

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Prakash : (2009) 13 SCC 229 and submitted that if any party has raised two inconsistent pleas and one is not proved then on basis of adverse possession another cannot be rejected. Learned counsel further referred judgment in case of Moolchand Vs. Mst. Bhanni : RLW 1981 (Raj.) 217 and submitted that a presumption of possession can be drawn on basis of adverse possession. She further referred judgment in case of Bhagwati Prasad Vs. Chandramaul : AIR 1966 SC 735 and submitted that even if a relief is not founded on basis of pleadings of the parties, even then same can be granted provided it is satisfactorily be proved from the evidence. Learned counsel further referred judgment in case of Chatti Konati Rao and Others Vs. Palle Venkata Subba Rao : (2010) 14 SCC 316 and submitted that the party must clearly establish and prove the elements of adverse possession. Learned counsel has further referred judgment in case of Laxmidevamma and Others Vs. Ranganath and Others : (2015) 4 SCC 264 and submitted that the scope of second appeal is very limited and this Hon’ble Court cannot interfere beyond the permissible limit under Section 100 of CPC. She further submitted that this Hon’ble court while considering the grounds has framed only one substantial question of law and no further claim is made by appellant to formulate additional substantial question of law, therefore, the Court cannot travel beyond scope of Section 100 of CPC. At last, she submitted that there is concurrent findings of fact about

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adverse possession and the Court cannot interfere in findings of fact recorded by the Courts below. Therefore, the appeal may be dismissed with heavy cost.

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Heard learned counsel for the appellant and learned counsel for the respondents-plaintiffs. Perused the judgments as referred by learned counsel for both the parties and also the record of trial Court and the Appellate Court.

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While considering this appeal following substantial question was framed for consideration:-

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“WHETHER, the judgments and decrees of both the learned Courts below are not sustainable in as much as the cancelled permission dated 24.07.1962 has been considered in decided issue No.2 and 3?”

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During course of arguments, learned counsel for the appellant placed reliance upon judgment in case of Sebastiao Luis Fernandes (Dead) through LRs & Ors.

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Vs. K.V.P. Shastri (Dead) through LRs & Ors. (supra), wherein a three Judge Bench of Hon’ble Supreme Court has held that the admission is based on substantial question of law framed by the High Court at the time of admission and while recording the cogent and valid reasons, the High Court can set aside the concurrent findings of facts while answering the substantial question of law. In case of State of Rajasthan and Ors. Vs. Shiv Dayal and Another

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(supra), Hon’ble Supreme Court has held that in case of perversity of findings by the Courts below, interference is permissible. In case of Tara Masih (D) Thr. His Lrs & Ors. Vs. Samual (D) Thr. LRs. & Ors. (supra), Hon’ble

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Supreme Court has considered the effect of non-framing of substantial question of law while deciding second appeal. The matter was remitted back to the High Court.

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Learned counsel for respondents while placing reliance upon

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the judgment in case of Laxmidevamma and Orthers Vs. Ranganath and Others (supra) has held that interference by High Court on erroneous re-appreciation of evidence with concurrent findings of the trial Court and the Appellate Court then it does not give rise to any substantial question of law.

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In light of judgments as referred hereinabove, it is apparent on record that this Court has already admitted the appeal after framing a substantial question of law. Section 100 of CPC deals with second appeal allowing any person to file an appeal against a decree passed by a Court subordinate to High Court on ground of substantial question of law and if the High Court is satisfied that the case involves a substantial question of law before it then it can hear second appeal. It means that to consider any second appeal, it is necessary to formulate a substantial question of law. Here in this case, a substantial question of law has already been framed by a Co-ordinate Bench while entertaining the second appeal. Section 100(5) of CPC provides that appeal shall be heard on the question formulated and the respondents be allowed to argue the case does not involve such question.

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In case of Jaichand (Dead) Through LRs & Ors. Vs. Sahnulal & Anr. : 2024 INSC 996 , Hon’ble Supreme Court

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while considering the judgment in cases of Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor : (1999) 2 S.C.C. 471, Kondira Dagadu Kadam vs. Savitribai Sopan Gujar reported in AIR 1999 S.C. 2213, Bhagwan Sharma vs. Bani Ghosh : AIR 1993 S.C. 398 and Hero Vinoth vs. Seshammal : (2006) 5 SCC 545 has observed that the High Court can go and determine a substantial question of law but if a question is already decided by highest Court then the High Court has to consider applicability of principle of law.

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A three Judges Bench of Hon’ble Supreme Court in case of Balasubramanian Vs. M. Arockiasamy : 2021 SCC OnLine SC 655 has held that if the findings of the Court below are perverse then it is open for the High Court to take note of the case pleaded, evidence tendered and also the findings recorded by the two Courts. The question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula.

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Learned counsel for the appellant has also referred a judgment passed by three Judges Bench of Hon’ble Supreme Court in case of Corporation of City of Bangalore Vs. Zulekha BI and Ors : (2008) 11 SCC 306 wherein after considering Sections 101 and 102 of Indian Evidence Act, it was held that where there is a disputed title to suit property the burden of proof lies upon plaintiff before the trial Court and if she did not produce any document to substantiate her

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title and the Appellate Court has drawn an erroneous interference. Thus, the same cannot be considered as proof of title to suit property and the matter is remitted back to the trial Court. In case of Anil Rishi Vs. Gurbaksh Singh (supra) while considering Sections 101, 102 and 106 of Indian Evidence Act, Hon’ble Supreme Court has held that the plaintiffs alleging that the sale deed was forged, fabricated and void and the trial Court instead of placing initial onus on plaintiff to prove allegation as made in plaint has placed initial burden on defendant to disprove the said allegation then same is unsustainable.

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Plaintiff Mittu Lal (dead) filed a civil suit on the ground that the suit property, mentioned in para No.1 and also shown in annexed map was in the name of Jagan Nath Ganga Bux Joshi. The ancestors of plaintiff were family barber of late Shri Jagan Nath Ganga Bux Joshi and around 60 years before filing of the suit (date of filing 24.10.1977), the property was orally gifted and the value of property at that time was ₹50, and disclosed by father of plaintiff. This fact was denied by defendants in their written statement. In additional pleading, the defendant No.1 has narrated the pedigree and according to him, this property fall in share of Ratanlal. The trial Court has framed issue No.1 about claim of plaintiff on basis of gift by Jagan Nath Ganga Bux Joshi. This issue was decided against the plaintiff. The findings on this issue clearly indicate that the trial Court after considering the evidence both documentary and oral has

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drawn a conclusion that mere possession is not sufficient to presume that the suit property is gifted to forefathers of plaintiff. The findings on issue No.1 is further affirmed from the fact that finding on issue No.1 is approved by the Appellate Court. Though said finding was not challenged by defendant, and the plaintiff has not filed any cross-objection before the First Appellate Court.

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Learned trial Court has framed issue Nos.2 and 3, which reads as under:-

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“¼2½ D;k oknh us bl uksgjs es lu~ १९६७ esa ikuh dk dusD’ku fy;k rFkk 24-7-62 dks uxj ifj"kn] lhdj ls btktr rkehj gkfly dh\ ;fn gka rks bldk okn ij D;k vlj gSa\ ¼3½ D;k oknh oSdfYid:i ls eq[kyQkuk dCtk ds }kjk fooknxzLr uksgjs dk Lokeh o vf/kifr cu x;k gS\”

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After considering the evidence both documentary and oral, the trial Court has observed that the plaintiff is in peaceful possession over the suit property and same is in knowledge of defendant since 1962. The defendant No.1 has executed sale deed on 29.08.1977 and executed A-58 registered sale deed but period of 12 years is completed prior to said sale deed, and the plaintiff has become owner of suit property as he is maintaining possession, therefore, issue Nos.2 and 3 were decided in favour of plaintiff.

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On basis of issue Nos.2 and 3, issue No.4 was also decided in favour of plaintiff. The findings on issue Nos.2 and 3 were challenged by appellants-defendants before the Appellate Court and the Appellate Court has observed that the trial Court on basis of documents has drawn a conclusion that plaintiff is in peaceful and hostile possession since 1962,

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therefore, the trial Court has rightly drawn a conclusion. The findings of Appellate Court is based on findings recorded by the trial Court.

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The Appellate Court while considering jointly issues Nos.4 to 12 has held that no specific objection was raised about issue Nos.4 to 12, thus the Appellate Court has affirmed the findings.

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A perusal of plaint indicated that the plaintiff has filed a suit on basis of title and ownership. No title document is submitted by the plaintiff in his evidence and the ownership by gift is also not proved. Meaning thereby, the findings of the Court below indicate that plaintiff is not an owner of suit property. This finding was not challenged by filing crossobjection or a cross appeal. Herein also, the findings on issue No.1 has already attained finality, therefore, the plaintiff is neither a title holder nor an owner of suit property on basis of any title document or oral gift.

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In his suit, the plaintiff has made averment in para No.10 that, in case, plaintiff is not treated as owner then he is in possession of suit property for last more than 60 years and his possession is peaceful and same is in the knowledge of defendant No.1 and his family. The plaintiff has further pleaded that his possession is open and hostile, and his rights of adverse possession have matured. The plaintiff has challenged the sale deed dated 29.08.1977 executed by defendant No.1 in favour of defendant No.2.

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The plaintiff initially has challenged sale deed and sought an injunction against dispossession and for obstruction in enjoyment of suit property, which means that at the time of filing of suit, there were no averments in the plaint, filed by the plaintiff.

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During pendency of suit property, an application under Order VI Rule 17 CPC was filed to amend the plaint to the extent that the defendant has not initiated any action for dispossession of plaintiff for a period of twelve years, therefore, he may be permitted to include para No.10A in the plaint. This application was allowed on 13.10.1984 by learned trial Court. Aggrieved from said order, a revision petition is filed before this Court and the civil revision petition No.651/1984 was dismissed on 21.04.1985. By

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amending the plaint, para No . 10A (10-d) was inserted but relief clause was not amended by plaintiff.

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The pleadings indicate that after the oral gift by Jagan Nath Ganga Bux Joshi the rights of Jgan Nath Ganga Bux Joshi and his family have extinguished and the plaintiff has challenged sale deed dated 29.08.1977 on the ground that the defendant No.1 and his family has lost the right and possession over the property. After insertion of para-10A, a specific para was added to include a ground that the defendant No.1 or his father or family member or any other person is stopped from legally claiming the suit property. The entire pleadings of amended plaint indicate that the

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plaintiff has filed a suit on two contrary but parallel pleadings. Firstly, on title and ownership but was decided against the plaintiff and secondly on basis of adverse possession. The pleadings were amended when suit was pending but the grounds to challenge the sale deed dated 29.08.1977 were not specifically pleaded particularly the fact that the ground of adverse possession was initially included in para No.10 but later it was explained in para No.10A during pendency of civil suit, which indicated that the plaintiff has amended the suit and included a right on basis of adverse possession but in entire para No.10A nowhere it has mentioned that the sale deed dated 29.08.1977 is bad as the plaintiff has acquired status of ownership by virtue of adverse possession.

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The trial Court after considering that since 1962, when the plaintiff has procured sanction for construction, since then he is in hostile possession on suit property. Herein, the pleadings of the parties indicated that the property belongs to Jagan Nath Ganga Bux Joshi and the pedigree in written statement reflect that the sanction of construction (ijazat tamir) was cancelled on 18.09.1962. When father of defendant No.1 has applied for ijazat tamir on 15.07.1965 then Mittu Lal has raised objection on two occasions and Mittu Lal has not revealed about oral gift in his two objections. Aggrieved from the order, Mittu Lal has not filed any appeal. The defendant has further mentioned that he has raised certain construction. Here in this case, the trial

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Court has referred certain documents and after considering said documents decided issue Nos.2 and 3 in favour of plaintiff.

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A perusal of record of trial Court indicate that 12 issues were framed on basis of pleadings of the parties and the trial Court has decided issue Nos.1, 2 and 3. On basis of findings recorded on issue Nos.2 and 3, decided issue Nos.4, 5 and 7 to 12. Issue No.6 which was decided in favour of defendant pertains to sufficient valuation of suit and payment of Court fee. The issue No.1 was decided against the plaintiff which indicated that the plaintiff is neither an owner nor title holder of the suit property. Therefore, no declaration whatsoever can be made in favour of plaintiff about the ownership of the suit property, on ground of title of plaintiff.

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Issue Nos.2 and 3 related to the fact that plaintiff has acquired ijazat tamir on 24.07.1962 and water connection in 1967, therefore, the impact on present suit and alternatively the plaintiff has become owner on basis of adverse possession. The trial Court after passing the decree has declared sale deed exhibit A-58 dated 29.08.1977 as void and ineffective and cancelled the same. A permanent injunction is also issued in favour of plaintiff and against the defendants. While considering issue No.4, the trial Court has not independently examined the execution of sale deed dated 29.08.1977 rather without going on the merits has declared the same as void and ineffective against the plaintiff.

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The suit is filed by plaintiff on 24.10.1977. The law relating to adverse possession has changed after judgment in the case of Ravinder Kaur Grewal and ors. vs Manjit Kaur and Ors. (supra), and further relied in case of Mohammade

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Yusuf and Orthers Vs. Rajkumar and Ors (supra), and Hon’ble Supreme Court has held that person who has perfected his title by adverse possession and reiterated, can use it as a sword and file a suit for declaration of title and possession. Earlier judgment in case of Gurudwara Sahib vs Gram Panchayat Village Sirthala & Anr : (2014) 1 SCC 669 is expressly overruled in case of Ravinder Kaur Grewal and ors. vs Manjit Kaur and Ors. (supra), thus owner’s right to eject a person in case of claim of adverse possession is lost and possessionary owner acquires right, title and interest possessed by outgoing person / owner.

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In case of Chatti Konati Rao and Others Vs. Palle

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Venkata Subba Rao (supra) Hon’ble Supreme Court while considering animus possidendi has observed that Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. The relevant paragraph of judgment is reproduced as under:-

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“ 15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title

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until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.”

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In case of Shankar and Ors. Vs. Surendra Singh Rawat (d)

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through LRs and Anr : 2019(1) Civil Court Cases 213 (S.C.).

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Hon’ble Supreme Court has considered a case wherein two alternative pleas of title and adverse possession were raised and after failing to establish the title on the suit property, the Hon’ble Supreme Court has held that the plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document, it is the plea of adverse possession.

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In case of Maria Margarida Sequeria Fernandes and Others

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Vs. Erasmo Jack de Sequeria (Dead) through L.Rs. : AIR 2012 SC 1727 , a three Judges’ Bench of Hon’ble Supreme Court has considered a suit for possession and title and held that a suit for possession has two parts, firstly, adjudication of title and secondly, adjudication of possession. The person in possession is required to plead sufficient details in his pleadings and particularly about the documents to support his claim in order to continue in possession.

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In the case of Maria Margarida Sequeria Fernandes and

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Ors. Vs. Erasmo Jack De Sequeria (Dead) through L.Rs

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: (supra) Hon’ble Supreme Court while considering the rights

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of a party claiming to be in possession viz-a-viz claiming to rightful owner in possession has crystallized principles of law in following manner:-

¶175

“101. Principles of law which emerge in this case are crystallized as under:-

¶176

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

¶177

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

¶178

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

¶179

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

¶180

The· caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession”

¶181

Here in this case, the plaint clearly indicated that in para No.3, the plaintiff has averred that his forefathers were house barbers of Jagan Nath Ganga Bux Joshi and the property was gifted to his forefathers, and said fact was disclosed by grand father and father of plaintiff. The evidence of plaintiff shows that this property was gifted to father of plaintiff Dhanji, but said fact is not mentioned in the plaint. This issue No.1 is decided against the plaintiff but there is a difference between pleading and evidence available on record and it indicated that the plaintiff has filed

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a suit without any basis and the facts narrated by plaintiff is not having any legs.

¶186

Thereafter, plaintiff has mentioned that father of plaintiff expired in 1957 and in 1967 plaintiff has procured water connection. In next para, the plaintiff has mentioned that on 24.07.1962 he has procured ijazat tamir (permission to raise construction) but averment in para 7 of plaint also indicated that he could not raise construction or rooms though masonry stones were lying on the land. The plaintiff has mentioned that the father of defendant No.1 have raised objection about his permission and the Municipal Council has directed for adjudication by the Civil Court. The plaintiff in his para alternatively prays for adverse possession but in entire para No.10 nowhere mentioned that from which date or year, the possession of plaintiff over the suit property was hostile to the real owner. This is an essential ingredient for the adverse possession that the possession must be hostile to real owner and it must be in the knowledge of real owner. Later on, during pendency para No.10A is added and again a specific pleading was added that since 1962, the possession of plaintiff is hostile. The defendants have denied the fact of para No.10 in original written statement and also para No.10A in amended written statement. The pleading of defendant clearly indicate that the ijazat tamir obtained by plaintiff was cancelled on 18.09.1962 (Ex.A-13) and thereafter, despite objection by plaintiff, the permission was

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granted to patta holder for raising construction of boundary wall.

¶191

Herein, it indicate that the pleadings were not specific about hostile possession which required to be mentioned in pursuant to judgment of Hon’ble Supreme Court in case of Chatti Konati Rao and Others Vs. Palle Venkata Subba Rao (supra) and T. Anjanappa And Ors vs Somalingappa And Anr : (2006) 7 SCC 570 .

¶192

The findings recorded on issue Nos.2 and 3 indicate that from date of installation of water connection, the trial Court has presumed adverse possession but nowhere it was established that in 1965 the plaintiff has claimed title or ownership over the property and he claimed himself to be owner of property. The ijazat tamir, obtained by plaintiff is cancelled and thereafter, no ijazat tamir was granted to plaintiff. The oral and documentary evidence of both the parties is available on record and there is no need to discuss in detail as one substantial question of law is framed and case revolves around adverse possession. The evidence does not indicated that just before the filing of civil suit and for a prior period of last 12 years, from date of filing the plaint, the plaintiff has made an assertion to claim title and ownership over the property. The documents herein indicated that the plaintiff has never made an assertion about oral gift of suit property in his favour. Similarly, there is no evidence to show that from 1962 onwards, the plaintiff has made any assertion about claim of ownership over the

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suit property. It is an admitted case of plaintiff that except a lavatory, no other structure is existing on suit property and the attempt to raise boundary wall has failed, as same was resisted and stopped. The masonry stones were lying at the site is not sufficient to show hostile possession of any person. If during pendency, any status has been changed, then it give rise to a fresh suit and same cannot be counted as a fact relating to adverse possession. Once the plaintiff has started to claim adverse possession then the real owner must be aware about claim of plaintiff and he cancelled the permission in favour of plaintiff. There is no evidence on record except little oral evidence about title of forefathers of plaintiff and known to the peple in the vicinity. It indicated that there is a variance between the pleadings and the evidence.

¶197

The plaintiff has raised two alternative pleas and first plea is decided against the plaintiff and plaintiff has not able to establish his case whereas for second plea of adverse possession, the facts narrated by plaintiff are not sufficiently explained. The details in plant does not disclose the date on which the plaintiff has claimed the property as hostile owner and since then he remained in peaceful and unchallenged possession. If during pendency of civil suit or civil proceedings, whether first appeal or the second appeal, if the plaintiff has acquire any right then it gives a right to file a fresh suit but he cannot claim and mature his right during pendency of any proceeding. Herein, the defendant has also

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filed a counter claim but when this Court has admitted the second appeal and only one substantial question of law was formulated and we are bound by substantial question of law as framed by a Co-ordinate Bench. No further prayer whatsoever is made so as to frame additional substantial question of law.

¶202

Here in this case, the material on record clearly indicated that two inconsistent pleas were raised and sufficient details were not included in the plaint. The trial Court while considering the issue of adverse possession has heavily relied upon a permission to raise construction, which was already cancelled and no construction is raised at the suit property. Moreover placed reliance upon a water connection, is important in case of a tenant or a possession holder, thus any document about water connection does not give any right to claim adverse possession. Normally, a possession holder is provided water connection due to basic human need and same does not give a right to claim title against the real owner. The plaintiff is required to prove that he has openly challenged the title of defendant No.1 and members of his family, after his challenge, the defendant No.1 has not taken any action for 12 years and during this period of 12 years, he remained in peaceful possession and continuous in possession, till date of filing of suit.

¶203

The pleadings in plaint itself is not clear and the case of plaintiff is based on a construction permission and if a permission has been cancelled and still a plaintiff can base

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his case of possession but same has to be specific thus the construction permission does not give any right to the plaintiff, to base case of adverse possession.

¶208

The law over the point is well settled that the duty lies upon the person who claims his right. The duty lies upon the plaintiff to establish that the sale deed executed by defendant No.1 in favour of defendant No.2 is without any authority. The defendant No.1 who claimed himself to be descendant of Jagan Nath Ganga Bux Joshi and the admission of plaintiff indicates that the property belongs to Jagan Nath Ganga Bux Joshi. The admission of plaintiff also indicate that the father of defendant No.1 has challenged the ijazat tamir granted by Municipal Council and it indicated that the property in question belongs to father of defendant No.1.

¶209

Herein this case, no specific ground is mentioned to challenge the sale deed dated 29.08.1977. The issue of title claimed by plaintiff is decided against the plaintiff, but in case of adverse possession, no specific declaration is sought by plaintiff. The plaintiff has claimed injunction on basis of adverse possession and he has not proved any independent right to challenge sale deed dated 29.08.1977 and unless the possessory title has been declared in favour of plaintiff, he has no right to challenge sale-deed in favour of defendant No.2. The trial Court has erroneously decided issue Nos.2 and 3, therefore, the findings on issues Nos.2 and 3 are perverse and contrary to the record and legal position.

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Having considered the judgments as referred by learned counsel for both the parties, I am of considered view that the findings of issue Nos.2 and 3 were recorded contrary to the record and the trial Court has committed serious error while placing reliance upon a permission dated 24.07.1962 and also not granted after notice to defendant No.1 or his father or other real owner. Therefore, the permission dated 24.07.1962 if remain as it is even then it does not give any right against defendant No.1 unless same is within knowledge of defendant No.1. Otherwise also, after knowledge, said permission for construction is cancelled and the trial Court still relied upon the cancelled permission, which indicate that without considering the essential ingredient required to prove adverse possession, the trial Court has decided issue No.3 in favour of plaintiff. Thus, the findings on issue Nos.2 and 3 are perverse. Accordingly, the substantial question of law framed by this Court is decided in favour of appellant and answered affirmatively.

¶214

The entire judgment of trial Court is based on findings recorded on issue No.2 and 3, but when findings on issue No.2 and 3 are perverse and the question framed by this Court is answered affirmatively, then findings on issue No.4 required to be set aside.

¶215

Having considered the findings of Appellate Court, the discussion of Appellate Court is just ad-verbum following the findings recorded by the trial Court and it has not considered the case independently. Moreover the findings were recorded

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only on basis of issue Nos.2 and 3, therefore, same is also not sustainable.

¶220

The findings on issue No.5 and 7 to 12 were not seriously challenged before the Appellate Court. Moreover, no specific substantial question of law is framed about any other ground at the time of admission by this Court. Therefore, the findings on other issues requires no interference.

¶221

In view of aforesaid, the instant second appeal preferred by the appellant (defendant No.2) (Deceased) by LRs., is hereby allowed and judgment and decree dated 07.02.1990 in Civil Suit No.41/1977 affirmed in Civil Regular Appeal No.99/1990 on 21.12.1995 by learned Additional District Judge, Sikar, are hereby set aside and the civil suit preferred by the respondent-plaintiff, is hereby dismissed.

¶222

No order as to costs.

¶223

Misc. application(s), if any, also stand disposed of.

¶224

(ASHOK KUMAR JAIN),J

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MR/194

Shyam Lal S/O Shri Jawahar Mal, v. Patasi Devi Widow of Late Shri Late Shri Mithu Lal

Case brief

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Shyam Lal S/O Shri Jawahar Mal, v. Patasi Devi Widow of Late Shri Late Shri Mithu Lal

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