V. K. AGRAWAL, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 19-7-1999 in Civil Suit No. 21-A 1994 by II Additional District Judge, Ambikapur (District Surguja), whereby the plaintiff's suit for declaration and permanent injunction was dismissed and the counter-claim of the respondents 1 and 2 for possession of the suit- property was decreed. ( 2 ) UNDISPUTABLY, Anupa Bibi was the owner of disputed land bearing Khasra No. 620 area 0. 316 hectares situate at village Juna-Lakhanpur District Surguja. A Kutcha house is constructed on a portion of the suit-land in an area of about 5 decimals, while the remaining land of the above khasra number is lying vacant. It is also not in dispute that Anupa Bibi sold the suit-lands in favour of respondent No. 1 by registered sale-deed dated 5-6-1961. The respondent No. 2 is the son of respondent No. 1 ( 3 ) THE case of the plaintiff/ appellant stated in brief is that his father, late Mazhar Ali was in occupation of the suit-land since 1951-52. He had constructed a kutcha house thereon, in the year 1951-52 and used to keep his servants and agricultural implements therein. Hehad also planted two "sheesam" trees on the said land. After the death of his father in the year 1952, the plaintiff and his brother Farjand Ali had planted trees, numbering 121, on the suit-land, The plaintiff and his brother partitioned the property in the year 1990-91. The said partition was afirmed by the revenue Court. In the said partition, the suit-land was allotted in the share of the plaintiff/appellant; and he was in exclusive possession of the suit-property. ( 4 ) THE plaintiff/appellant further averred that in the year 1969-70, the plaintiff/appellant started residing in the suit-house with his family and the open land was used by him as his 'badi' Anupa Bibi or the defendants were never in possession of the suit-property since 1951-52. They never objected to the possession of the plaintiff/appellant over the suit-property. It was averred that the plaintiff/appellant has, therefore, acquired rights thereon by adverse possession. It was further averred by the plaintiff/appellant that by the order of the Collector, Ambikapur, demarcation of the suit-land was held, and he was proposed to be evicted from the suit-property by the police.
They never objected to the possession of the plaintiff/appellant over the suit-property. It was averred that the plaintiff/appellant has, therefore, acquired rights thereon by adverse possession. It was further averred by the plaintiff/appellant that by the order of the Collector, Ambikapur, demarcation of the suit-land was held, and he was proposed to be evicted from the suit-property by the police. Hence, he filed the suit praying for declaration that he has acquired title over the suit-property by adverse possession and he also prayed that permanent injunction restraining the defendants from dispossessing him, be granted. ( 5 ) THE defendants resisted the suit as above. They denied the allegations. According to them, their vendor Anupa Bibi had handed over possession of the suit-land to defendant No. 1 after execution of sale-deed dated 5-6-1961 in his favour. It was denied that the father of the plaintiff or the plaintiff/appellant was in possession of the suit-land from the year 1951-52. The defendants averred that Anupa Bibi was in possession of the Suit-land and the defendants 1 and 2 obtained possession from her. The defendant No. 1 constructed on the suit-land a house for the use of his servants as well as for keeping cattle. He had also constructed fencing for the security of the suit- house. ( 6 ) THE case of the defendants further was that on the request of the plaintiff/appellant, the defendant No. 1 permitted him to occupy the said kutcha house. In 1994 when the plaintiff openly started asserting his right over the suit-land, the defendant/res. No. 1 filed an application before the Collector, who took necessary action against the plaintiff/appellant. The defendant averred that the plaintiff/appellant never acquired right, title or interest over the suit-property by adverse possession. The defendants 1 and 2 therefore, prayed that the suit of the plaintiff/appellant be dismissed. They also made a counter-claim praying that the possession of the suit-property be delivered to them. ( 7 ) THE learned trial Court framed several issues including the issues relating to the averments of the plaintiff/appellant that he was in possession of the suit-property since the time of his father from the year 1951-52 and thereafter; and as to whether the plaintiff/appellant had acquired right and title over the suit- property by way of adverse-possession.
( 7 ) THE learned trial Court framed several issues including the issues relating to the averments of the plaintiff/appellant that he was in possession of the suit-property since the time of his father from the year 1951-52 and thereafter; and as to whether the plaintiff/appellant had acquired right and title over the suit- property by way of adverse-possession. Issues relating to the question as to whether the plaintiff was in occupation of the suit-property with the permission of the respondent No. 1 was also framed. The above issues were decided against the plaintiff/appellant and in favour of the respondents 1 and 2. Accordingly, the suit of the plaintiff was dismissed and the counter-claim of the respondents 1 and 2 for possession of the suit-property was decreed. ( 8 ) THE learned counsel for the plaintiff/appellant in this appeal has submitted that the trial Court erred in dismissing the suit of the plaintiff/appellant. It has been submitted that the plaintiff/appellant has pleaded that his father had taken possession of the suit-land in 1951-52 and had constructed a 'kutcha' house thereon. After the death of the father of the plaintiff in the year 1952, the plaintiff and his brother continued to be in possession of the suit-property. Anupa Bibi, the previous owner of the suit-property as also the defendants 1 and 2, did not object to their possession till 1994; when the defendant No. 1 filed the application before the Collector. In view of his uniterrupted and continuous possession as above over the suit-property from the year 1951-52 till 1994, the plaintiff/appellant should have been held to have acquired title over the same, by adverse possession. Therefore, his suit for declaration and permanent injunction deserved to be decreed and the counter-claim of the respondents 1 and 2 was liable to be dismissed. ( 9 ) AS against the above, the learned counsel for defendants/respondents 1 and 2 submitted that the plaintiff/appellant had not raised proper pleadings that the latter had acquired a right over the suit-property, by adverse possession. It has been submitted in the avove connection that the appellant did not plead that his possession was adverse to that of the owner of the suit-property i. e. Anupa Bibi, defendant No. 1 after the latter purchased the suit-property in the year 1961.
It has been submitted in the avove connection that the appellant did not plead that his possession was adverse to that of the owner of the suit-property i. e. Anupa Bibi, defendant No. 1 after the latter purchased the suit-property in the year 1961. It has further been submitted that the respondents have led evidence - oral and documentary, including the copies of Khasra entries, etc. showing that the defendants were in possession of the suit-land. It was urged that the plaintiff was permitted by the defendant No. 1 to occupy the 'kutcha' house built over the suit-property. When the plaintiff started asserting his right over the suit-property in the year 1994, defendant no. 1 objected to it and filed an application before the Collector, who took appropriate action against the plaintiff. It has been submitted that in the circumstances, the trial Court was justified in negativing the plea of the plaintiff that he acquired right over the suit-property by adverse possession. It was, therefore, urged that the impugned-judgment and decree is wholly justified. ( 10 ) IN view of the contentions as above, the question that arises for consideration is : as to whether the plaintiff/appellant has properly pleaded and proved that he has acquired title over the suit-property by adverse possession ?' ( 11 ) IT is not in dispute that the owner of the property was Anupa Bibi. She had sold the disputed land in the year 1961 to respondent No. 1 Kutubuddin by a registered sale-deed produced by him and marked as Ex. D/1 by the trial Court. The aforesaid sale-deed (Ex. D/1) would indicate that the possession of the suit-land was handed over by Anupa Bibi to defendant No. 1 at the time of the sale. The defendants have also produced copies of the Khasra entries and Kist- Bandi Khatoni, which would indicate that they were shown in possession of the suit-land. ( 12 ) AS against the evidence as above, the plaintiff/appellant has not produced any document to indicate that he was in possession of the suit-property. The plaintiff/appellant had led oral evidence in regard to his possession over the suit-land from the time of his father. In the above context, the appellant Khurshid Ali (P. W. 1) has stated that the house over the suit-property was constructed prior to 1950.
The plaintiff/appellant had led oral evidence in regard to his possession over the suit-land from the time of his father. In the above context, the appellant Khurshid Ali (P. W. 1) has stated that the house over the suit-property was constructed prior to 1950. However, this is not consistent with his pleading; because in para-4 of the plaint, he has stated that his father constructed the house over the suit-land in the year 1951-52. It may also be noticed that the plaintiff asserts that he was in possession of the suit-property continuously after the death of his father in the year 1952. However, it appears from his statement in para-11 that he was employed as Teacher since 1954 and retired in the year 1994. He was posted at Rajpur, Sitapur, Sargawan and other places. He has admitted that these places are at a distance from Lakhanpur, where the suit-property is situate. Obviously, therefore, he could not have been residing in the suit-house after the death of his father, as he has stated in his examination-in-chief. ( 13 ) IT may also be noticed that the plaintiff/appellant has pleaded that there was a partition between him and his brother Farjan Ali in the year 1991 in which the suit-property was allotted to his share. However, the learned trial Court has scrutinised the evidence regarding the above averment and has come to the conclusion that the plaintiff/appellant and his brother Farjan Ali had effected partition between them much earlier, i. e. , in the year 1969-70. Therefore, there could not be any partition between them, in the year 1990-91 as has been averred by the plaintiff/appellant. In the above context, the learned trial Court took note of the entries in the Electoral Roll (Ex. D/6. Ex. D/7 and Ex. D/8) also. The finding as above appears to be wholly justified, and it appears that the averment in the above regard of the plaintiff/appellant regarding partition between him and his brother in the year 1990-91, stood falsified by the oral and documentary evidence placed on record. ( 14 ) IN the foregoing circumstances, the learned trial court appears to have justifiably held that the plaintiff/appellant has failed to discharge his burden of proving that he was in continuous possession of the suit-land from the time of his father from the year 1950-51.
( 14 ) IN the foregoing circumstances, the learned trial court appears to have justifiably held that the plaintiff/appellant has failed to discharge his burden of proving that he was in continuous possession of the suit-land from the time of his father from the year 1950-51. ( 15 ) IT also appears that the appellant retired in the year 1994. The respondent No. 1 Kutubuddin (D. W. 1) has stated that as the appellant was facing difficulty regarding the residential accommodation, he had permitted the plaintiff to reside in the kutcha house constructed by the defendants. It would also appear from the statement of kutubddin (D. W. 1) that later in the year 1994, when the plaintiff/appellant started constructing pucca compound-wall, he objected to the same and preferred an application before the collector. It would thus appear that the possession over the suit-property of the plaintiff/appellant was with the permission of the defendants/respondents. Such a possession could not amount to adverse-possession. ( 16 ) IT may further be noted that the pleadings of the plaintiff/appellant nowhere indicate that his possession was adverse from the inception or become so subsequently at any point of time. In the absence of such pleadings, the length of possession by itself would not amount to adverse possession and would not result in vesting any title over the suit-property in the plaintiff/appellant. In the above context, reference may be made to S. M. Karim v. Mst. Bibi Sakina ( AIR 1964 SC 1254 ) wherein it has been said :-"adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. "reference.
A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. "reference. in the above context, may also be made to Vishnunarayan Badrinaryan v. Anantnarayan Motilal ( 1992 MPLJ 544 ) wherein it has been held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. It is for the party asserting acquisition of right by adverse possession to establish his plea that their possession was adverse to the owner to his knowledge and with his acquiescence. Permissive possession cannot amount to adverse-possession. ( 17 ) LEARNED counsel for the respondents also referred to Parwatabai v. Sonabai ( AIR 1997 SC 381 ) and Kalyan Singh Jetthi Bai 1995 MPLJ 35, wherein it has been observed that mere possession howsoever long, cannot be termed as adverse to prescribe title; unless there is animus and hostility on the part of the person in possession which is made known to the real owner. ( 18 ) IN the instant case, the plaintiff/appellant has not raised sufficient pleadings to show that there was animus and hostility on his part regarding the possession over the suit-property. Learned counsel for the plaintiff/appellant has in the above context submitted that the pleadings of the plaintiff though do not specify that his possession over the suit-property was adverse, but the pleadings read as a whold would indicate that he had held the suit-land and was in its uninterrupted possession, which would go to show that he was in adverse possession thereof. However, in view of the material and evidence placed on record, the above contention cannot be accepted. The finding of the trial Court, that the defendants were in possession of the suit-land and they had permitted the plaintiff/appellant to reside in the kutcha house constructed thereon, is based on proper appreciation of evidence.
However, in view of the material and evidence placed on record, the above contention cannot be accepted. The finding of the trial Court, that the defendants were in possession of the suit-land and they had permitted the plaintiff/appellant to reside in the kutcha house constructed thereon, is based on proper appreciation of evidence. It also appears that since the plaintiff/appellant started asserting his right over the suit-property, for the first time, in the year 1994, the defendants objected to the same and moved an application before the collector seeking redressal. The defendants/respondents have also placed sufficient evidence on record including khasra entries to show that they were in possession of the suit-property. Therefore, the plaintiff/appellant cannot be said to be in open, continuous and uniterrupted hostile possession of the suit-property from the year 1950-51 till 1994 as was urged on his behalf. ( 19 ) THUS the plaintiff/appellant has neither raised adequate and proper pleadings, nor adduced relevant and material evidence to show that his possession over the suit-property was adverse in nature. Accordingly, the suit of the plaintiff/appellant deserved to be and was rightly dismissed and the counter-claim of the respondents 1 and 2 for possession of the suit-property was rightly decreed. ( 20 ) ACCORDINGLY, this appeal has no merit. The impugned-judgment and decree does not call for any interference. The same is affirmed. The appeal is dismissed. Cost of this appeal shall, however, be borne by the parties as incurred. Appeal dismissed .