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2007 DIGILAW 253 (UTT)

Fariyad Hussain v. Subhash Chandra and others

2007-05-10

RAJESH TANDON

body2007
JUDGMENT Heard Sri Jagdish Prasad, counsel for the appellant and Sri V.K. Bisht, Sr.Advocate, assisted by Ms. Sangeeta Miyan, counsel for the respondents. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the plaintiff-appellant has prayed for setting aside the judgment and order dated 22-4-2004 passed by Addl. District Judge II, (Fast Track Court), Udham Singh Nagar in Civil Suit No.5 of 2002 Fariyad Hussain Vs. Sub hash Chandra and others dismissing the suit of the plaintiff-appellant for declaration in respect of plot no. 341 Min area 0.036 hectare of village Amratpur Tehsil Kashipur-Jaspur, District Udham Singh Nagar. 3. Briefly stated, a suit was filed by the plaintiff for a declaration that he has acquired the ownership of Gata No. 341 area 0.036 hectare by way of adverse possession. 4. The civil Court has framed as many as two issues to the following effect. 1- Whether the adverse possession of the plaintiff over the disputed land has become matured? 2- To what relief the plaintiff is entitled ?" 5. Issue No.1 was decided by holding that the plaintiff has failed to prove that he has been in adverse possession. However, his possession is like a tenant of the premises. 6. Issue No.2 thereafter was decided by holding that the plaintiff is not entitled for any relief since the plaintiff-appellant is already in possession. Discussion on Point Nos. 1 and 2. 7. According to the plaint averments, the plaintiff is in possession since 1970-71 Fasli and earlier to plaintiff, his father Sri Ishtiyaq Hussain was occupying the land and therefore, he has claimed that after his death, he has acquired the rights of ownership by adverse possession. 8. In paragraph 5 of the plaint, it has been stated that a notice was sent by the defendant on 28th July, 2001 demanding the rent of Rs. 70/- per month and it has been stated in the notice that the rent for the period of 49 months have become due and he has constructed a Stall (Farh) and is doing the business of Carpenter. 9. In paragraph 6 of the plaint, it has been stated that the plaintiff is not recorded in the revenue records and hence, the suit was filed for declaration claiming his ownership. 10. 9. In paragraph 6 of the plaint, it has been stated that the plaintiff is not recorded in the revenue records and hence, the suit was filed for declaration claiming his ownership. 10. A written statement was filed by the defendants, who are the sons of the original owner namely Sri Anand Priya. In the written statement, it has been stated that the plaintiff is continuing as a tenant of the land Gata No. 341 and earlier to him his father was the tenant and as such in view of the relationship of lessor and lessee, the plea of adverse possession taken by the plaintiff was denied by the defendant. 11. In the additional pleas, the defendant has stated in paragraph 11 and 12 that the predecessor of the plaintiff has taken the land from the father of the defendants and therefore, he is the tenant of the premises in dispute. Relevant paragraphs 11 and 12 of the additional pleas are quoted below :- 12. The trial Court after considering the entire evidence on record has dismissed the suit and has recorded the finding that there was a relationship of lessor and lessee and therefore, the plaintiff cannot be allowed to claim adverse possession on account of having been in possession as alleged by him. 13. A perusal of the record shows that P.W. 1 Fariyad Hussain in paragraph 1 of his affidavit has stated that Gata No. 341 area 0.036 hectare has been in the name of Sri Anand Priya and Satya Priya, who were recorded as original tenure holders and thereafter the defendants have been recorded as heirs of Anand Priya and Satya Priya. 14. Plaintiff in paragraph 2 of the plaintiff has stated that in the year, 1971, his father was put in possession. Further it has been stated that he has received the notice demanding the arrears of rent. Relevant paragraph 1 and 2 showing that the predecessor of the defendants was the original tenure holder are quoted below :- 15. In paragraph 11 of the affidavit, rent receipts have also been admitted. 16. Similar affidavit has been filed by Sri Mubarak Hussain, who has also admitted that the original tenure holder was late Mr. Satya Priya i.e. the predecessor of the defendants. Relevant paragraph 2 of the said affidavit is quoted below :- 17. In paragraph 11 of the affidavit, rent receipts have also been admitted. 16. Similar affidavit has been filed by Sri Mubarak Hussain, who has also admitted that the original tenure holder was late Mr. Satya Priya i.e. the predecessor of the defendants. Relevant paragraph 2 of the said affidavit is quoted below :- 17. Nothing has come in the cross-examination in order to disprove the title of the predecessor of the defendants. 18. On behalf of the defendants Subhash Chandra, son of Anand Priya was examined, who has deposed that the plaintiff continues to be the tenant of Anand Priya. Relevant portion of the affidavit is quoted below : 19. Similar affidavit has been filed by another son namely Sri Atul Kumar. Relevant portion of the affidavit is quoted below: 20. Subhash Chandra-defendant has also proved the rent receipts, which have been paid by the father of the plaintiff to the following effect: 21. The rent receipts have also been filed as Paper No. 26-Ga dated 31st December, 1987 and 6th May, 1995. 22. From a perusal of the record, it appears that there was no material to hold that the plaintiff has acquired the ownership rights by adverse possession. 23. Counsel for the appellant has referred the judgment of Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs & heirs etc. AIR 1995 SC 895. Relevant paragraphs 12 and 13 are quoted below:- "12. Article 65 of the Schedule to the Limitation act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run form the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must how by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 13. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." 24. As will appear from the observations of the Apex Court that the plaintiff was required to establish his title on adverse possession by acquiring unequivocal evidence i.e. possession was hostile to the real owner. In the present case, the defendant has proved that plaintiff occupied the plot by virtue of the permission granted by the owner namely Satya Priya as will appear from his own admission. As such, it cannot be presumed that the possession of the plaintiff was hostile to the defendant at any point of time and as such the observations of the Apex Court are distinguishable in the present case. 25. In Deva (Dead) through LRs Vs. Sajjan Kumar (Dead) by LRs 2003 (7) SCC 481, the Apex Court has observed that mere long possession will not prove the adverse possession and it has been held that mere long possess for more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by the defendant. Relevant paragraphs are quoted below: "11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. Relevant paragraphs are quoted below: "11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on the plaintiff's survey number. 12. The abovequoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land. 13. The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years." 26. In view of the aforesaid, I find no merit in the appeal and the appeal is dismissed with costs.