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Madhya Pradesh High Court · body

1993 DIGILAW 23 (MP)

Sana Singh v. Nandlal

1993-01-09

GULAB C.GUPTA

body1993
JUDGMENT Art. 65 of the Limitation Act applies to suits for possession based on title. It does not apply to suits for possession based on previous possession for which proper provision is Art. 64 of the said Act. The present suit, as would be clear from the plaint, is based on title. Indeed, it is mainly a suit for permanent injunction and damages and not a suit for possession. The alternative relief of possession was added by way of amendment. Plaint clearly indicates that the appellant made several efforts to obtain declaration that the sale was not real and the sale-deed was executed as a security for loan but had failed. It was, therefore, alleged that the respondent-plaintiff was the Bhumiswami of the suit-land. Plaint Paras 7 and 8 thereafter indicate that the respondent-plaintiff sowed his crop on the disputed land which was harvested by the appellant. The harvesting has been alleged to be the unlawful interference with the possession and therefore a claim for temporary injunction. The appellant-defendant in his written statement denied these facts and submitted that he was always in possession of the suit-land and continues to be so. This defence of the appellant would rule out the application of Art. 64 of the Limitation Act as there would be no case for dispossession. The learned trial Judge has also noticed this aspect of the matter and has for that reason applied Art. 65. The learned lower appellate Court has rightly held that the suit would not be governed by Art. 64 and it would if at all be governed, by Art. 65. Art. 65 applies to a suit for possession based on title and has to be filed within a period of 12 years from the date when the possession of the defendant had become adverse to the plaintiff. There is sufficient authority for the proposition that mere possession is not adverse possession. A possession to be adverse, must be hostile possession amounting to expressly or impliedly denial of title of true owner. (See S.M. Karim v. Mst. Bibi Sakilla, AIR 1964 SC 1254 , Ramsillgh v.Roopsingh, 1989 RN 349 and Bhuwani Singh Rajput v. Girwar Singh, 1987 Revenue Nirnaya 295). Then, it is also the requirement of law that such a claim should be clearly pleaded and proved. (See S.M. Karim v. Mst. Bibi Sakilla, AIR 1964 SC 1254 , Ramsillgh v.Roopsingh, 1989 RN 349 and Bhuwani Singh Rajput v. Girwar Singh, 1987 Revenue Nirnaya 295). Then, it is also the requirement of law that such a claim should be clearly pleaded and proved. If a plea has not been taken, there would neither be any occasion for the Court to frame issue upon it or allow the parties to lead evidence to prove the same. This Court has in Damodar v. Laxmall, 1989 Revenue Nirnaya Page, 9, has clarified that a plea of adverse possession must be clearly raised in the pleadings and the Court would be committing an illegality in considering the claim without it. In the instant case, there is no claim made by the appellant of title based on adverse possession. Indeed his case is that he never sold the suit land to the respondent-plaintiff and therefore continuing to be the Bhumiswami thereof. In such a case, it is natural for him not to claim fresh acquisition of title based on adverse possession. In the absence of any plea about the adverse possession, it was not within the jurisdiction of the trial Court 10 apply Art. 65 and hold that the suit has become barred. It has been clarified by this Court more than once that a mere possession is not adverse possession within the meaning of Art. 65 and the suit would not be barred only because the possession over the disputed land continues for more than 12 years. The plea of the appellant- defendant as contained in the written statement, is of mere possession and not adverse possession. Though the appellant has claimed title on the plea that the sale-dead was nominal, the said plea would not justify considering the case based on adverse possession. Adverse possession necessarily means the knowledge that some one else and not the holder was the real owner and thereafter holding the property openly by asserting title hostile to the real owner. In the absence of any such averment, the case of the appellant based on adverse possession could not be considered indeed, it has not been so considered by the learned trial Judge. Learned trial Judge has only dismissed the suit on a finding that the respondent was not shown to be in possession of the suit-land immediately before 12 years of filing of the suit. Learned trial Judge has only dismissed the suit on a finding that the respondent was not shown to be in possession of the suit-land immediately before 12 years of filing of the suit. The said judgment was clearly illegal and contrary 10 the terms of Art. 65 of the Limitation Act. The same was therefore rightly set aside by the learned lower appellate Court. This Court finds no illegality in the approach adopted by the learned lower appellate Court in the matter and is therefore pleased 10 affirm its view that the plea of adverse possession could not be considered in the absence of any averment about it in the written statement. 1989 RN 349, 1987 RN 295 and 1989 RN 9 relied Oil. Appeal partly allowed.