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2007 DIGILAW 109 (CHH)

Chatur Singh v. Gayaram alias Gendulal

2007-02-12

D.R.DESHMUKH

body2007
JUDGMENT In this Second Appeal by the unsuccessful defendants/appellants, the following substantial question of law arises for determination: "Whether the respondent No.1 was entitled to the decree of possession on the ground that he had perfected his title by adverse possession?" 2. The following facts have not been disputed in this appeal: (A) Daulat Singh was the owner of agricultural land Kh. No. 148/2 area 0.26 acres, Kh.No.3227/3 area 0.33 acres and Kh.No.2590/1 area 0.09 acres in village Bhatgaon, Patwari Halka No. 166, Revenue Circle Bhatgaon, Tahsil Baloda Bazar (hereinafter referred to as the suit lands). Daulat Singh had executed receipts Ex.P.11 on 24.07.1960, Ex.P.12 on 04.09.1960 and Ex.P.13 on 29.09.1961 in favour of respondent No.1/plaintiff herein i.e. Gayaram and had delivered possession of the suit lands to Gayaram. Receipts Exs.P.11, 12 and 13 do not in any manner show that Daulat Singh intended to mortgage the suit lands in favour of Gayaram in lieu of a loan advanced by Gayaram. The receipts purport to be agreements to sell accompanied with delivery of possession to the vendee i.e. Gayaram. (B) In 1974-75 Gayaram moved an application before the Naib Tahsildar Bilaigarh for mutation of his name over the suit lands on the ground of adverse possession. In those proceedings Daulat Singh stated on oath that he had mortgaged the suit lands with one Natthu. Naib Tahsildar, Bilaigarh vide order Ex.P.5 dated 30.09.1975 refused to mutate the name of Gayaram passed over the suit lands and directed Gayaram to establish his title in a Civil Court. In appeal, S.D.O. Baloda Bazar affirmed vide order dated 16.05.1978 passed by the Naib Tahsildar and dismissed the appeal vide order Ex.P.10. (C) Gayaram, respondent No.1/Plaintiff herein instituted Civil Suit No. 26-A of 1979 before the Civil Judge, Class-II, Baloda Bazar against Daulat Singh and one Panduram on the ground that he had perfected his title over the suit lands by adverse possession from 1960-61 when he was put in possession of the suit lands under an agreement to sell by Daulat Singh, and therefore, Daulat Singh had no right or title subsisting over the suit lands on 25.05.1979 when he executed a registered sale deed of the suit lands in favour of one Panduram and dispossessed him. (D) Daulat Singh died on 19.05.1980 during the pendency of the suit. (D) Daulat Singh died on 19.05.1980 during the pendency of the suit. His legal representatives Sushila Bai (widow), Chatur Singh (Son) and Bahartin (daughter) were brought on record as defendants who contested the Civil Suit No. 26-A of 1979. (E) Vide judgment and decree dated 13.07.1985 passed in Civil Suit No. 26-A of 1979, it was held by the learned Civil Judge Class-II, Balodabazaar that the documents Ex.P.11, 12 and 13 could be used for collateral purpose i.e. for evidencing delivery of possession to Gayaram in lieu of an agreement to sale and possession of Gayaram was thus adverse from the date of being put in possession of the suit lands upon execution of the receipts Ex.P.11, 12 and 13 i.e. from the year 1960-61 till May 1979, and therefore, Gayaram was entitled to recovery of the possession of suit lands on the ground that he had perfected his title by adverse possession. (F) Aggrieved by the said judgment and decree, the above mentioned legal representatives of Daulat Singh preferred first appeal No.25- A/1998 before the 7th Additional District Judge, Camp Balodabazaar. During pendency of first appeal, Sushila Bai, widow of Daulat Singh, died. Since her legal representatives were already on record, her name was deleted from the cause title. Chatur Singh and Bahartin along with Panduram contested the first appeal. Vide judgment and decree passed on 28th February 1998, the First Appellate Court also affirmed the findings of fact recorded by the learned lower Court and dismissed the appeal. (G) Being aggrieved, only Chatur Singh and Panduram preferred Second Appeal on 19.01.1999 against respondent No.1/plaintiff-Gayaram and respondent No.2/defendant Bahartin Bai. Bahartin Bai had died on 22.12.1998 i.e. much before filing of the Second Appeal, leaving behind her two sons. The Second Appeal was admitted on 01.03.2000. On 21.04.2006, the respondent No.1/plaintiff Gayaram informed the Court that Bahartin Bai had expired. The respondent No.1/plaintiff filed an application I.A.No.2369 of 2006 on 29.07.2006 praying that since the respondent/defendant No.2 had died on 22.12.1998 i.e. much before the filing of Second Appeal and no application was filed by the appellants for bringing her legal representatives on record, the appeal had abated as a whole and should be dismissed. The respondent No.1/plaintiff filed an application I.A.No.2369 of 2006 on 29.07.2006 praying that since the respondent/defendant No.2 had died on 22.12.1998 i.e. much before the filing of Second Appeal and no application was filed by the appellants for bringing her legal representatives on record, the appeal had abated as a whole and should be dismissed. An application I.A.No.2553 of 2006 was filed on 10.08.2006 under Section 151 of C.P.C. by the appellants/defendants for deleting the name of Smt. Bahartin Bai-respondent No.2/defendant from the cause title on the ground that no cause of action had survived against her two sons i.e. legal representatives of Bahartin Bai. During the course of final arguments, an application I.A.No.300 of 2007 under Section 151 C.P.C. was also filed on 30.01.2007 by the appellants for permission to file an appropriate application for substitution of the name of the legal representatives of Bahartin Bai. On 21.08.2006, it was ordered that the applications I.A.Nos.2369 of 2006 and 2553 of 2006 shall be disposed of at the time of final judgment. 3. I shall now first deal with the interlocutory applications No.2553 of 2006 for permission to delete the name of respondent No.2-Bahartin and 2369 of 2006 which is an application under Order 22 Rule 4 C.P.C. filed by respondent No.1/plaintiff for dismissing the Second Appeal as abated. It was contended by Shri Bhaskar Payashi, learned counsel for the appellants that under Order 41 Rule 4 of C.P.C. one of the several appellants could obtain reversal of the whole judgment and decree where it proceeded on common grounds to all, and therefore, for not bringing the legal representatives of the deceased Bahartin Bai on record, the Second Appeal would not abate as a whole against the appellants/defendants. The argument of Shri Bhaskar Payashi, learned counsel for the appellants cannot be accepted. The provisions of Order 41 Rule 4 C.P.C. do not override the provisions of Order 22 C.P.C. Where an appeal had abated as a whole for not bringing the legal representatives of the deceased/respondent, its effect could not be avoided by resort to this rule. Order 41 Rule 4 proceeds on the assumption that the plaintiffs or the defendants who are aggrieved by a decree on any ground common to all of them are alive and anyone of the plaintiffs or the defendants may appeal against the whole decree involving grounds common to all of them. Order 41 Rule 4 proceeds on the assumption that the plaintiffs or the defendants who are aggrieved by a decree on any ground common to all of them are alive and anyone of the plaintiffs or the defendants may appeal against the whole decree involving grounds common to all of them. The very fact that the defendant Bahartin although dead, was arrayed as a respondent/defendant in this appeal goes to show that there was conflict of interest between the appellant/defendant-Chatur Singh and Bahartin. Therefore, Order 41 Rule 4 of C.P.C. has no application to the present case. 4. It is not in dispute that during the pendency of the Civil Suit, Daulat Singh had died and his legal representatives namely Sushila (widow), Chatur Singh (Son) and Bahartin (daughter) were brought on record who contested the suit. Sushila, widow of Daulat Singh also died during pendency of First Appeal and her name was deleted, since her legal representatives were already on record. Thus, Chatur Singh and Bahartin were contesting appellants in First Appeal also. It has been brought on record that Bahartin had died on 22.12.1998 i.e. much before the filing of Second Appeal on 29.01.1999. The very fact that the appellants while preferring Second Appeal had impleaded Bahartin (already died) as a respondent goes to show that their interests with the legal representative of Bahartin were in conflict. In this view of the matter, the judgment and decree passed against Bahartin Bai in First Appeal had become final. In Ramagya Prasad Gupta and others, Brahmadeo Prasad Gupta and another Vs. Murli Prasad and others1, it was held that upon death of one of the respondents and upon failure to bring legal representatives on record, the appeal would abate as a whole. The Apex Court has laid down three tests to determine whether the appeal abates as a whole in such circumstances. Murli Prasad and others1, it was held that upon death of one of the respondents and upon failure to bring legal representatives on record, the appeal would abate as a whole. The Apex Court has laid down three tests to determine whether the appeal abates as a whole in such circumstances. It held that the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which be in conflict with the decision between the appellant and the deceased respondent, and, therefore, it would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b)when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court, and (c) when the decree against the surviving respondents, if the appeal succeeds, be successfully executed. These three tests are not cumulative tests. Even if one of them is satisfied, the Court may dismiss the appeal. In Sardar Amarjit Singh Kalra by L.Rs. vs. Pramod Gupta (Smt.) by L.Rs. and others it was held by the Apex Court that whether the judgment and decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decree is also a relevant test. 5. Applying the test to the facts of present case, it would be seen at once that the judgment and decree passed in First Appeal against Bahartin Bai had become final. The appellants Chatur Singh and Panduram did not implead Bahartin Bai as a co-appellant but impleaded her as a respondent knowing that she had died much before the filing of Second Appeal. It goes to show that there was conflict of interest between legal representatives of Bahartin Bai and Chatur Singh. It is pertinent to note that after filing of Second Appeal on 29.01.1999, the appellants made no efforts to bring the legal representatives of Bahartin on record till the respondent No.1/plaintiff filed an application I.A.No. 2369 of 2006 under Order 22 Rule 4 C.P.C. on 26.07.2006 praying that since Bahartin Bai had died on 22.12.1998 and the appellants did not file application for bringing her legal representatives on record within limitation, the appeal be dismissed as a whole. It is also pertinent to note that in the reply filed by the appellants/defendants they did not contend that right to sue had survived against the remaining appellants. In this view of the matter, in the facts and circumstances of the case, I am of the considered opinion that since there was a conflict in interest of the present appellants and Bahartin Bai, a contradictory judgment and decree could not be passed in Second Appeal unless the legal representatives of Bahartin Bai were brought on record by the appellants. The application I.A.No.300/2007 filed by the appellants under Section 151 C.P.C. is liable to outright rejection since the defendants not only preferred Second Appeal against a dead respondent i.e. Bahartin Bai but also suppressed this fact for a long period of 6 years and it was only after the respondent No.1/plaintiff preferred an application on 26.07.2006 that they filed I.A.No. 2553 of 2006 under Section 151 of the C.P.C., without filing any application under Section 5 of the Limitation Act for condonation of delay or for setting aside the abatement. The decree passed by learned lower Court and affirmed in First Appeal being joint and inseverable and having become final against Bahartin Bai, a decree of reversal of that judgment and decree could not be passed in Second Appeal unless the legal representatives of Bahartin were brought on record. It is thus clear that for not bringing the legal representatives of the deceased respondent No.2/defendant Bahartin on record, the Second Appeal abated as a whole and is liable to be dismissed. 6. I shall now deal with the substantial question of law framed in the appeal. Shri Bhaskar Payashi, learned counsel for the appellants/defendants has placed reliance on Roop Singh vs. Ram Singh in support of his contention that since the respondent No.1/plaintiff had failed to establish hostile animus from the date of being put in possession of the suit lands in 1960- 61 by Daulat Singh, the possession of the respondent No.1/plaintiff Gayaram over the suit lands in pursuance of documents Ex.P.11, 12 and 13 executed by Daulat Singh being permissive possession could not crystallize into adverse possession unless hostile animus to the knowledge of the real owner was proved. 7. 7. On the other hand, Shri H.S.Patel, learned counsel for the respondent No.1/plaintiff-Gayaram contended that since Daulat Singh had put Gayaram in possession of the suit lands on execution of the receipts Ex.P.11, 12 and 13 in 1960-61 after receiving the whole consideration in pursuance of an agreement to sell, possession of Gayaram was adverse from the date of being put in possession of the suit lands. Since the fact of the suit lands being mortgaged by Daulat Singh with Gayaram was not proved and it was an admitted fact that Gayaram was in peaceful possession of the suit lands from 1960-61 till being dispossessed on 25.05.1979, the concurrent finding of fact recorded by both the Courts below that Gayaram had perfected his title over the suit lands by adverse possession was not liable to be interfered with in Second Appeal. 8. Having considered rival submissions, I have perused the record of Civil Suit No. 26-A of 1979 and the impugned judgment and decree passed in Civil Appeal No. 25-A of 1998 with utmost circumspection. So far as the finding recorded by the learned Civil Judge Class- II, Baloda Bazaar in Civil Suit No. 26-A of 1979 and affirmed in Civil Appeal No. 25-A of 1998 by the 7th Additional District Judge, Raipur, camp Baloda Bazaar that Daulat Singh had, vide receipts Ex.Ps.11, 12 and 13, intended to sell the suit lands to Gayaram and in pursuance to such an agreement to sell, had received the full consideration and had delivered possession of suit lands to Gayaram, is concerned, it is a finding of fact arrived at by both the Courts below on proper appreciation of evidence and materials placed before it and should not be interfered with by re-appreciating evidence in Second Appeal. I am fortified in my view by the decision of the Apex Court rendered in Navaneethammal vs. Arjuna Chetty4 wherein it was held as under: "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. In the present case the lower appellate court fairly appreciated the evidence and confirmed the conclusion of the trial court that suit was not barred by limitation. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. In the present case the lower appellate court fairly appreciated the evidence and confirmed the conclusion of the trial court that suit was not barred by limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material". 8. The finding recorded by the learned Civil Judge Class-II, Baloda Bazar that the receipts Exs.P.11, 12 and 13 even though not admissible in evidence could be looked into for collateral purposes and for showing the nature of possession of Gayaram over the suit lands is also in conformity with law and finds supports from the judgment rendered in Bondar Singh and others v. Nihal Singh and others5 wherein it was held by the Apex Court that an unstamped and unregistered document even though not admissible in evidence could be looked into for collateral purposes to show the nature of possession of the vendee over the suit lands. 9. The only point that remains for consideration before this Court, therefore, is whether possession of a purchaser in pursuance of an agreement to sell becomes adverse to the vendor from the date of being put in possession or not. 10. Reliance was placed by the learned counsel for the appellants on Thakur Kishan Singh (dead) vs. Arvind Kumar in support of his contention that mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. However, in the case law cited, the facts were that the appellant had entered into possession over the land in dispute under a licence from the respondent for purposes of brick kiln. It was therefore held that possession initially being permissive heavy burden lay on the appellant to establish that it became adverse by cogent and convincing evidence to show hostile animus possidendi and possession adverse to the knowledge of real owner. Thus, the facts of the case law cited are clearly distinguishable and do not apply to the present case. 11. It was therefore held that possession initially being permissive heavy burden lay on the appellant to establish that it became adverse by cogent and convincing evidence to show hostile animus possidendi and possession adverse to the knowledge of real owner. Thus, the facts of the case law cited are clearly distinguishable and do not apply to the present case. 11. Shri H.S.Patel, learned counsel for respondent No.1/plaintiff placed reliance on Ramsingh s/o Rukhdoo vs. Roopsingh s/o Devisingh wherein it was held by His Lordship R.C.Lahoti, J. (as he then was) that possession pursuant to an agreement to sell the land becomes adverse from the date of the agreement. Reliance was placed on an unreported judgment of the Apex Court on Sunder singh and another vs. Narayan singh and others in Civil Appeal No. 816 of 1966 decided on 3rd April 1969 that when a person is put in possession of property pursuant to an agreement of sale, the proposition that his possession is permissive until he is able to establish by definite evidence the point of time from which the possession becomes adverse against the owners cannot be regarded as laying down the correct law. 12. Shri Bhaskar Payashi, learned counsel for the appellants/defendants pointed out that the decision in Ramsingh's case (supra 5) cited by the learned counsel for the respondent No.1/plaintiff was overruled in Roop Singh through L.Rs. v. Ram Singh through L.Rs8. 13. I have perused the case law cited wherein the defendant had entered into the possession of the premises as a batai that is to say, as a tenant, and therefore, it was held that his possession was permissive and there was no pleading or proof as to when it became adverse and hostile to the real owner. It was further held that if the defendant got permissive possession over the suit land as a lessee or under the batai agreement it was for him to establish hostile animus possidendi and possession adverse to knowledge of the real owner by cogent and convincing evidence because mere possession for a long time could not result in converting permissive possession into adverse possession. In the present case, the facts and circumstances are absolutely different. In the present case, the facts and circumstances are absolutely different. Both the Courts below have on a proper appreciation of relevant documents and evidence, held that Daulat Singh had put Gayaram in possession of the suit lands in the year 1960-61, on receiving full consideration in pursuance to an agreement to sell which was embodied in the documents Exs.P.11, 12 and It is not disputed that from the date of being put in possession of the suit land in 1960-61, Gayaram continued in possession and enjoyment of the suit lands till 25.05.1979 when pursuant to a sale deed executed by Daulat Singh in favour of Panduram, he was ousted from possession. During this long period of 19 years, Daulat Singh, at no point of time, made any effort to regain possession and remained inactive. 14. In Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others, it was held by the Apex Court as under: "The law does not intend to confer any premium on the wrong doing of a person in wrongful possession, it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of `dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property". 15. I am of the considered view that if Daulat Singh had put Gayaram in possession of the suit lands in pursuance to an agreement to sell after receiving full consideration and thereafter Gayaram continued in peaceful, open and uninterrupted possession of the suit lands for a period of 12 years or more, his possession became adverse to the owner of the suit lands from the date of being put in possession of the suit lands under an agreement to sell. Due to inaction on the part of Daulat Singh for a period of 12 years, Gayaram perfected his title over the suit lands by adverse possession. Having paid the entire consideration of the suit lands to Daulat Singh and having been put in possession of the suit lands by him, it can safely be presumed that Gayaram was asserting his ownership over the suit lands and had set up a hostile animus possidendi over the suit lands. 16. In Vasantiben Prahladji Nayak and others v. Somnath Muljibhai Nayak and others10, it was held that to establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention, long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In Karnataka Board of Wakf v. Government of India and others11, the law relating to proof of acquisition of title by adverse possession has been succinctly dealt with by the Apex Court as under: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nee vi, nee clam, nee precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should prove: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." 18. Learned counsel for the appellants/defendants had also cited Ganesh Prasad v. Narendralal Natthulal Guptal in support of his contention that where a person entered into possession as a prospective purchaser or in part performance of an agreement to sell such possession was permissive or under a licence from the owner, and was not adverse and could not ripen into title. However, the case law cited is also distinguishable as the plaintiff in this case had entered into the possession of the suit land in lieu of a loan advanced by him coupled with the agreement to sell. Therefore, it was held that possession of the plaintiff was permissive in lieu of the loan advanced by him to the defendant. However, the case law cited is also distinguishable as the plaintiff in this case had entered into the possession of the suit land in lieu of a loan advanced by him coupled with the agreement to sell. Therefore, it was held that possession of the plaintiff was permissive in lieu of the loan advanced by him to the defendant. In the present case, it is not established that Daulat Singh had taken any loan from Gayaram and had mortgaged the suit lands in favour of Gayaram. On the contrary, it is clearly seen that Daulat Singh had executed Exs.P.11, 12 and 13 as an outright agreement to sell and had put Gayaram in possession of the suit land in 1960-61. In the facts and circumstances of the case, it cannot be said that possession of Gayaram over the suit lands was permissible in nature. 18. In Bondar Singh's case (supra 1), the facts of the case were similar to the present one. A sale deed dated 09.05.1931 executed by one Fakirchand, father of the defendants in favour of Tola Singh, the predecessor in interest of the plaintiffs, was an admitted document in the sense of its execution being not in dispute. The defence was set up that the document was unstamped and unregistered, and did not convey title to the land in favour of the plaintiffs. The Apex Court held that the document could be looked into for collateral purposes for showing the nature of the possession of the plaintiffs over the suit lands. It further held that the sale deed shows that the initial possession of the plaintiffs over the suit lands was neither illegal nor unauthorized. It was further observed that during his life time Fakirchand never disrupted plaintiffs' title or possession over the suit lands. There was reliable evidence on record to show that the plaintiffs have been in continuous possession of the land in question till a notice was sent on 16.04.1956 by the defendants calling upon the plaintiffs to handover the possession of the suit lands on the ground that the plaintiffs were trespassers. This notice was also considered to be an admission on the part of the defendants that the plaintiffs were in possession of suit lands from 09.05.1931 till 16.04.1956. This notice was also considered to be an admission on the part of the defendants that the plaintiffs were in possession of suit lands from 09.05.1931 till 16.04.1956. It was also an admitted fact that the plaintiffs were in possession since the life time of the father of defendants and were cultivating the suit lands. It was held that the plaintiffs were all along asserting that they were in possession in their own right. Such possession had continued for over 25 years and the plaintiffs were never dispossessed from the suit lands during this period. It was further held by the Apex Court that the plea of adverse possession raised by the plaintiffs was clearly established since there was clear and clinching evidence to show that the plaintiffs were in continuous and uninterrupted possession of the suit lands since 09.05.1931 i.e. the date of sale deed executed by Fakirchand. 19. The facts of the above case apply to the present case with full force. There is a concurrent finding of fact recorded by both the Courts below that Daulat Singh had put Gayaram in possession of the suit lands in 1960-61 after executing Exs.P.11, 12 and 13 who had continued in open, uninterrupted and peaceful possession of the suit lands till May 1979 when he was actually dispossessed. In this manner, since Gayaram had paid the full consideration of the suit lands to Daulat Singh and was asserting his right over the suit lands as owner and was admittedly in long uninterrupted, open and continuous possession of the suit lands for a period of more than 12 years, he had perfected his title over the suit lands by adverse possession. The inaction on the part of Daulat Singh to unsettle the long and uninterrupted possession of Gayaram over the suit lands clearly show a loss of desire on the part of Daulat Singh to assert his ownership and reclaim possession. In this view of the matter, the argument advanced by the learned counsel for the appellants/defendants that possession of Gayaram over the suit lands from 1960-61 was permissive in nature cannot be accepted. In this view of the matter, the argument advanced by the learned counsel for the appellants/defendants that possession of Gayaram over the suit lands from 1960-61 was permissive in nature cannot be accepted. Substantial question of law is thus answered in the affirmative in favour of the respondent No.1/plaintiff that Gayaram had been in long, uninterrupted, peaceful and open cultivating possession of the suit lands for a period of more than 12 years from the date when Daulat Singh had put him in possession of the suit lands in 1960-61 and had thus perfected his title over the suit lands by adverse possession. The finding recorded by both the Courts below is well merited and does not call for any interference. 21. In the result, the Second Appeal is dismissed. The appellants shall bear the costs of respondent no.1/plaintiff. Counsel's fee is allowed at Rs.1,000/-, if certified. A decree be drawn accordingly.