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1981 DIGILAW 671 (ALL)

Gopal v. Vishwanath

1981-08-13

R.M.SAHAI

body1981
JUDGMENT R.M. Sahai, J. - This is defendants second appeal arising out of a suit filed for partition and possession. Admittedly defendant no. 1 is uncle and defendants 2 and 3 are cousin brothers of respondent nos. 1 to 3. There was some dispute whether property belonged to defendants exclusively, or it was owned by Smt. Mundar Devi, the mother of defendant no. 1 and father of respondents 1 to 3. It has been found by the two courts below that the property was purchased by Smt. Munder Devi and she was the owner of it. It is further not denied that it is defendants who are in possession since long. The only dispute which remains and on which courts below differed is whether defendant acquired any rights by adverse possession. The trial court found it in favour of defendants whereas appellate court set aside the finding and held that suit was within time. The only evidence on which adverse possession. The trial court found it in favour of defendants whereas appellate court set aside the finding and held that suit was within time. The only evidence on which adverse possession was claimed was Ext. 18 and Ext. 11 dated 14-11-1962 and 6-11-1963. The first one is a carbon copy of the reply given by the defendants in an application filed by the father of respondents 1 to 3 before Municipal Board for mutation of his name along with defendants. In this reply it was claimed that they were in adverse possession. The other paper is the reply filed by defendants to the application of plaintiffs father filed for permission to sue as pauper. The appellate court held that the claim of appellant that they were in hostile possession came to knowledge of plaintiffs for the first time by the reply given on 6-11-1983 and as 12 years, had not expired when the present suit was filed on 19-3-1975 the suit was within time. It is the correctness of this finding which has been challenged by the learned counsel for appellant. Reliance has been placed on Ex. 18 and it is urged that as it was filed by plaintiffs themselves and it is dated 14-11-1962 it should be assumed that it came to knowledge of the plaintiffs either on that date or immediately thereafter and in any case 12 years before the filing of the suit. Reliance has been placed on Ex. 18 and it is urged that as it was filed by plaintiffs themselves and it is dated 14-11-1962 it should be assumed that it came to knowledge of the plaintiffs either on that date or immediately thereafter and in any case 12 years before the filing of the suit. It has categorically been found by lower appellate court that there is no evidence on record to show that when this document was served on the plaintiff. Even in this court the learned counsel for appellant could not point out any document or evidence, oral or documentary, from which it could be inferred that this reply was served on plaintiffs father and if so on which date or time. The claim of defendants is based on adverse possession The plaintiffs and defendants are co-owners. In case of co-owners the burden to establish adverse possession is on the person who claimed it. It is established by series of decisions that mere possession is not sufficient to constitute adverse possession. There must be evidence of hostile possession and the knowledge of the person against whom it is claimed. In absence of any evidence that this reply was served on the plaintiff's father it could not form the basis for recording the finding that plaintiff had knowledge of the alleged hostile possession from this date and if this document is ignored then there is no evidence on record on which the claim of the defendants can be, accepted. The lower appellate court, therefore, did not commit any error in rejecting the claim of the defendants that they were in adverse possession. 2. Learned counsel for appellant further pointed out that the lower appellate court committed an error in awarding damages at the rate of Rs. 20/- per month by its order dated 11th May, 1977 for the period subsequent to the filing of the suit. There appears to be no substance in it. The appellate Court rightly held that once the suit was decreed and it was found that defendants were in possession of the entire share to the denial of the plaintiffs' right they were entitled to damages. The apprehension of the learned counsel for appellant that the expenditure made by him, in renovation of the house, in paying taxes etc. The appellate Court rightly held that once the suit was decreed and it was found that defendants were in possession of the entire share to the denial of the plaintiffs' right they were entitled to damages. The apprehension of the learned counsel for appellant that the expenditure made by him, in renovation of the house, in paying taxes etc. shall not be adjusted, does not appear to be justified because the lower appellate court negatived the case of the appellant in respect of renovation. Moreover, if any room has been constructed as alleged by the appellants they could claim when final decree is prepared, and the payment of tax etc. can also be adjusted at that time. The prayer of learned counsel for appellant that the decree corrected by the lower appellate court on 10-5-1977 may form (sic) the decree is accepted. 3. In this result this appeal fails and is dismissed. There shall be no order as to costs.