Shri Dayal v. Harish Chandra — 1985 DIGILAW 1055 (ALL)

JUDGMENT Om Prakash, J. - This is a second appeal against the judgment and decree dated 18.02.1974 of the learned Civil judge, Mainpuri arising out of a suit filed by the Plaintiff-Respondent for recovery of possession of the suit land as described at the foot of the plaint. 2. The plaint case is that the suit land is situated in plot no 4273. The plaint was amended, Before amendment, the Plaintiff claimed possessory title over the land in suit After the amendment, the Plaintiff claimed to have acquired ownership by adverse possession. The Plaintiff claimed that he had purchased the suit land under a sale-deed in the year 1959 from one Chhote Lal who acquired the same under a Sand in the year 1949 from the Rani of Manipuri. Proceedings u/s 145 Code of Criminal Procedure Were initiated by the Plaintiff when the Defendant No. 1. made an attempt to dispossess the Plaintiff on the baiss of the sale deed date 30.05.1964 which was executed in his favour by the Defendant No. 2. The said proceedings were decided in favour of the Defendant No. 1. realizing that the proceedings u/s 145 Code of Criminal Procedure would adversely affect his right, title or interest, the Plaintiff filed the suit for recovery of possession against the Defendants. 3. The suit was resisted by the Defendant No. 1. He claimed his own title and possession over the suit land. It was admitted that the suit land is situated in plot No. 4273. The learned Munsif struck off several issues and held that the Plaintiff had become owner of suit land by virtue of adverse possession. He also held that the predecessors of the Plaintiff, namely, Chhote Lai were also the owner of the suit land. The learned Munsif, however, took the view that the Rani Mainpuri was not the owner of the land in suit and she was not entitled to execute any Sand in respect of that to Chhote Lal. The title and possession of the Defendant No. 1. and his predecessor were negatived by the learned Munsif. The dispute was then carried in appeal by the Defendant No. 1 to the appellate court. Then the learned Civil Judge held that the learned Munsif was wrong in holding that Chhote Lal was the owner of the suit land. The title and possession of the Defendant No. 1. and his predecessor were negatived by the learned Munsif. The dispute was then carried in appeal by the Defendant No. 1 to the appellate court. Then the learned Civil Judge held that the learned Munsif was wrong in holding that Chhote Lal was the owner of the suit land. He, however, affirmed the finding of the learned Munsif that the Plaintiff was the owner of the suit land by virtue of adverse possession. It was held by him that neither the Plaintiff nor the Defendant nor their predecessors had any title to the land. It was also held that the possession of the Plaintiff and of his predecessor was sufficient "to amount to ouster of all other persons except the real owner " and, therefore, the Plaintiff had perfected his title by adverse possession against the Defendant and all others except the true owner. This is how the appeal of the Defendant was dismissed. Aggrieved by the said order, the Defendant No. 1 has come up in second appeal. 4. I have heard the learned Counsel for the parties at considerable length. Learned Counsel for the Appellant contended that the suit land was lying vacant before the Defendant No. 1 started constructions thereon and, therefore, the nature of possession as claimed by the Plaintiff could not establish the adverse possession. Then it was argued that the plaint having been amended shifting the case from possessory title to adverse possession, the Plaintiff could not succeed in second appeal on account of possessory title and that the Plaintiff can succeed only when the adverse possession is successfully proved by him. It was also argued that the decision of the courts below that the Defendant No. 1 or his predecessors had no title or possession on the suit land is perverse. On the other hand, the Plaintiff Respondent reiterated his adverse possession over the suit land. It was also argued that in any case, the Plaintiff is bound to succeed against the Defendant who has no title to the suit land, on account of his prior possession or possessory title. So the points for determination are: 1. Whether the courts below rightly held that the Plaintiff acquired the ownership by adverse possession over the suit land? 2. So the points for determination are: 1. Whether the courts below rightly held that the Plaintiff acquired the ownership by adverse possession over the suit land? 2. Whether the Plaintiff was in prior possession or acquired possessory title and, if so, whether he can maintain the suit on that ground? 5. Both the courts below recorded a concurrent finding that the Plaintiff acquired adverse possession. Ordinarily a concurrent finding given by the courts below deserves to be accepted. But the finding of the learned Civil Judge on this point appears to be inconsistent or incongruent and, therefore, it is difficult to say that there is a concurrent finding of the courts below on the point of adverse possession which has to be accepted. What the learned Civil Judge has held is that the Plaintiff and his predecessor-in-title Chhote Lai both remained in possession over the suit land and " the users alleged by the Plaintiff and his predecessor-in-title appears to be sufficient to amount to ouster of other persons except the real owner and, therefore, in my opinion the Plaintiff Respondent has perfected his title by adverse possession as against the Defendant Respondent and all others except the true owner " Adverse possession can be claimed only against the true owner. To claim adverse possession one has to establish that the hostile possession was to the knowledge and in denial of the ownership of the true owner for more than 12 years. No finding has been recorded by the learned Civil Judge that the Plaintiff and his predecessor-in-title remained in exclusive possession of the suit land to the knowledge of the true owner; rather the Civil Judge himself observed that user of the Plaintiff appeared to be sufficient to amount to ouster of all other persons except the real owner. It means that the Plaintiff did not exercise exclusive possession against the true owner. What the learned Civil Judge wanted to hold is that the possession of the Plaintiff gave rise to possessory title which was good against every one except the true owner. This finding cannot amount a finding of adverse possession but this is merely a finding of possessory title. It appears that the learned Civil Judge wrongly used the expression 'adverse possession' having been acquired by the Plaintiff. Otherwise also, there is nothing on record to support the adverse possession of the Plaintiff. This finding cannot amount a finding of adverse possession but this is merely a finding of possessory title. It appears that the learned Civil Judge wrongly used the expression 'adverse possession' having been acquired by the Plaintiff. Otherwise also, there is nothing on record to support the adverse possession of the Plaintiff. The only evidence that came before the courts below was that Shri Chhote Lal used to carry on his Tal of timber and used to dry ground-nut on the suit land. So far as the Plaintiff is concerned, the court below observed that he had mortgaged the land in suit to Industry Department of Uttar Pradesh for having taken a loan of Rs. 4000/- on 12.02.1961 and then he got a reconveyance deed dated 16.07.1971 (Ext. 5) executed in his favour from the department. The question is whether on the basis of this evidence, it can be said that the Plaintiff acquired adverse possession. Relying on the case of Lachhimi Nath Pathak and Another Vs. Bholanath Pathak and Others, AIR 1964 All 383 which was cited by the Defendant, the learned Civil Judge took the view that for determining the question of adverse possession, the court has to take into consideration the fact of each case and the circumstances under which the right of adverse possession is claimed and then considering the possession of Chhote Lal and of the Plaintiff he held that the user was sufficient to amount to ouster of all other persons except the real owner. Before deciding the question whether on the basis of the possession of Chhote Lal and the Plaintiff, the learned Civil Judge was right that the Plaintiff acquired adverse possession, it is essential to look at the case law pertaining to adverse possession. In Framji Curestji v. Goculdas Madhowji, ILR 26 Bom 338 the party claiming adverse possession proved to have erected on the land in dispute privy and sheds for cows, goats, fowls etc. and a hut for Ghariwala all, however, strictness of a flimsy and purely temporary character. It was held that such user of the land by itself was insufficient to support a title therein by adverse possession. It was observed: User of this sort under similar circumstances is common in this country and excites no particular attention. and a hut for Ghariwala all, however, strictness of a flimsy and purely temporary character. It was held that such user of the land by itself was insufficient to support a title therein by adverse possession. It was observed: User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote, or understood as denoting on the one side or the other a claim to the ownership of the land, and where this, and no more, is the case it would be wrong to hold that a claim by adverse possession has been made out. 6. The above decision was followed by a Division Bench of this Court in Asa Ram v. Ram Chandra 1938 ALJ 1227. This Court ruled down as follows: The mere tethering of cattle and storing of logs and the construction of foundations of a house begun many years back, but not visible on the surface on a piece of waste land, is no indication of possession which is intended to be adverse to the title of the proprietor of the land. 7. In Iqbal Ali v. Humayun Qadar AIR 1941 Oudh 436 the Oudh Chief Court observed: Where after the falling of a house into rains for a long time the land presents the appearance of a mere abate with a dalan bounded on all sides by the houses of the neighbors such acts of possession by the adverse possession, members of the real owner's family), as tethering of cattle, using the land as a playground, cooking food on ceremonial occasions and even planting trees cannot possibly arouse the notice of the real owner even if he be living in the same town, much less would they constitute adverse possession against him for he has been living away from the land since a long time. 8. From the above authorities, it is clear that the Plaintiff could not acquire title by adverse possession simply because his predecessor carried on Tall of timber and dried ground-nuts on the suit land and he himself mortgaged the suit land to the Industry Department without the notice of the true owner for the purpose of taking loan. 8. From the above authorities, it is clear that the Plaintiff could not acquire title by adverse possession simply because his predecessor carried on Tall of timber and dried ground-nuts on the suit land and he himself mortgaged the suit land to the Industry Department without the notice of the true owner for the purpose of taking loan. So neither from the record nor from the finding of the learned Civil Judge, it is established that the adverse possession was exercised by the Plaintiff and his predecessor-in-title against the real owner. The simple finding of the learned Civil Judge that the user of Chhote Lal and the Plaintiff appeared to be sufficient to amount to ouster of all other persons except the real owner, cannot perfect the title of the Plaintiff by adverse possession, even though he has held so. 9. Then the question is whether the Plaintiff was in prior possession of or whether he acquired possessory title over the suit land? Both the courts below currently found that the Defendant and his predecessor-in-title were never in possession of the suit land. This finding has to be accepted being a finding of fact. Moreover, this finding is fully supported by the record. Enough evidence has come that the Plaintiff and his predecessor-in-title Choate Lai remained in possession over the suit land. The Plaintiff himself had mortgaged the suit land inter alia to Industry Department of the U.P. State Government on 12.02.1961 and then got the reconveyance deed executed on 16.07.1971 (Ext. 5). This evidence fully established the prior possession of the Plaintiff or his possessory title. Then the question is whether the Plaintiff can maintain the suit on the basis of his possessory title. The submission of the learned Counsel for Appellant is that initially the suit was filed by the Plaintiff on the basis of possessory title, but then the plaint was amended and claim was shifted from possessory title to adverse possession, and. therefore, the Plaintiff can succeed only when the adverse possession is established. I do not see any force in this submission. There is well settled law when a bigger relief is claimed, small relief can always be granted. On the same analogy when a bigger claim is set up, the smaller claim can always be considered. The Plaintiff claimed the relief of possession on the basis of the adverse possession. I do not see any force in this submission. There is well settled law when a bigger relief is claimed, small relief can always be granted. On the same analogy when a bigger claim is set up, the smaller claim can always be considered. The Plaintiff claimed the relief of possession on the basis of the adverse possession. Even if the Plaintiff fails to establish adverse possession, the relief of possession can be granted on the basis of possessory title, which falls short of adverse possession. The Plaintiff has filed a suit for possession and that can be maintained on the basis of possessory title if not on the basis of possession. There being a concurrent finding of fact of the courts below that both the Plaintiff and the Defendant did not acquire title to the suit land and the Plaintiff having successfully proved his prior possession or possessory title, the suit for possession is bound to succeed against the Defendant, who has failed to prove a better title than the possessory title of the Plaintiff. In my opinion, long possession by itself is sufficient to enable the Plaintiff to ask for possession against the Defendant, who does not prove his own title. In other words, possessory title is good against every body except the true owner. The only requirement of such a suit would be that the Plaintiff should be able to prove his own exclusive possession over the property and the suit must be brought within 12 years from his dispossession from the same, as envisaged by Article 64 of the Limitation Act. In Somnath Burman Vs. Dr. S.P. Raju and Another, AIR 1970 SC 846 the Supreme Court ruled down that Section 9 of Specific Relief Act 1877 (Now Section 6 under the new Act, 1963) is in no way inconsistent with the possession that as against a wrong doer, prior possession of the Plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after that act of dispossession complained of and that the wrong doer cannot successfully resist the suit by showing that the title and right to possession are in a third person. Therefore, a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the Defendant from interfering with his possession. Therefore, a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the Defendant from interfering with his possession. It is there fore, clear that a suit for possession can be maintained on the basis of possessory title even after the expiry of the period of six months. In Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, AIR 1968 SC 1165 the Supreme Court clarified that the correct position is that if Section 9 of the Specific Relief Act is utilise the Plaintiff need not prove title and the title of the Defendant does not avail him. When however, the period of six months has passed, questions of title can be raised by the Defendant and if he does so the Plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit u/s 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the Defendant can prove one. So a suit for possession is not barred even if riled beyond six months but within 12 years and in such a suit based on possessory title, the Plaintiff is not entitled to prove any title, unless one is proved by the Defendant. The Defendant No. 1 ha ving failed to prove any title, the Plaintiff's suit for possession will surely succeed on the basis of possessory title which is fully supported by the record. So the judgment and decree of the learned Civil Judge deserve to be confirmed subject to the modification that not on the basis of adverse possession but on the basis of the possessory title, the Plaintiff is entitled to the decree of possession in respect of the suit land. 10. The appeal is, therefore, dismissed accordingly with costs. The judgment and decree of the learned Civil Judge dated 18.02.1974 are confirmed subject to the modification that the suit of the Plaintiff for possession is liable to be decreed on account of possessory title and not on the basis of the adverse possession.