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2010 DIGILAW 1984 (ALL)

Fakir Chand and others v. Dinesh Kumar and others

2010-07-08

RAKESH TIWARI

body2010
Rakesh Tiwari, J.:- Heard learned counsel for the appellant and perused the record. 2. This second appeal has been filed challenging the validity and correctness of the judgment, order and decree dated 6.8.2008 passed by the Additional District Judge, Court No.4, Bulanshahr in Civil Appeal No. 1165 of 1990, Dinesh Kumar and another versus Fakir Chand and others reversing the judgment, order and decree dated 25.8.1990 passed by the Civil Judge, Bulandshahr in Suit No. 395 of 1983, Dinesh Kumar and another versus Fakir Chand. 3. The facts as culled out from the record are that the plaintiffs instituted a Civil suit no. 365 of 1983 against defendant-Sri Fakir Chand (Predecessor-in-interest) of the appellants before the Court of Civil Judge, Bulandshahr for dispossession of the defendant from the property in suit and for damages to the tune of Rs.100/- per month. 4. Defendant filed his written statement interalia that Smt. Jandi Devi had no right to execute the will as she was not the owner of the property in suit. It was further claimed by the defendant that for the last more than 30 years he is in possession of the property in suit under his own rights. in paragraph 20 of his written statement it is averred that wife and son of Sri Chaudhary Raghuraj Singh had initiated the court proceedings regarding ejectment from his shop. 5. The Civil Judge, Bulandshahr vide judgment and order dated 25.8.90 recorded a finding of fact that neither the plaintiffs could prove their title nor the defendant is unauthorized occupant, though the case of the defendant of being in possession over the property in suit for the last 30 years was accepted by the Civil Judge while dismissing the suit with cost. 6. Civil Appeal No. 1165 of 1990 against the aforesaid judgment and order dated 25.8.90 of the Civil Judge was allowed by the lower appellate Court vide judgment and order dated 6.8.2008 which gives rise to the instant second appeal. 7. At the out set, paragraphs 17 and 21 of the written statements of the defendants appellants may be referred for appreciation of question of adverse possession as argued by the learned counsel for the appellants. 8. Paragraphs 17 and 21 of the written statement of the defendant appellant are thus:- @Hindi@ 9. 7. At the out set, paragraphs 17 and 21 of the written statements of the defendants appellants may be referred for appreciation of question of adverse possession as argued by the learned counsel for the appellants. 8. Paragraphs 17 and 21 of the written statement of the defendant appellant are thus:- @Hindi@ 9. From perusal of paragraph 17 of the written statement it is evident that on one hand the appellant has claimed possession pursuant to his own right over the property in suit and on the other hand from perusal of paragraph 21 it is clear that he has claimed possession on the ground of acquiescence by the plaintiff respondent who had not objected to his making constructions over the property in suit on which he claims possession. 10. The contention of learned counsel for the defendants appellants is that since the trial Court has recorded a finding of fact that he was in possession over the property in suit for the last 30 years as such the lower appellate Court has committed an error apparent on the face of record and in law in recording otherwise that defendant appellant was in adverse possession over the property in suit. 11. Sri M.K. Gupta, learned counsel for the respondents submits that from the written statement filed by the defendant appellants along with this second appeal it is apparent that he was not even sure as to whether the plaintiff respondent is rightful owner of the property in suit. He submits that in this view of the matter the case of the defendant appellant does not conform to the restriction for adverse possession as it can not be said that his possession over the property in dispute is open and hostile as the appellant had denied the right and title of the plaintiff respondent. 12. Having heard learned counsel for the parties it appears that the defendant appellant claimed rights on the property in dispute on the basis of acquiescence and not on the basis of adverse possession which is the case set up by him in W/s. Rather from paragraphs 17 and 21 of the written statement filed by him it is apparent that he was not in open and hostile possession of the property in dispute but claims the property in his own rights. Not only the defendant appellant was sure who was rightful owner over the property in suit and as such any question of his open and hostile possession of the property in question againt plaintiff respondent does not arise, for he also has gone to the extent of denying the title of the plaintiff to the property. 13. Once, the title of the true owner is denied, then the case of the defendant appellant based upon acquiescence claiming adverse possession over the property in suit is shattered. The plea of possession on the ground of acquiescence can not be termed an open and hostile possession against the true owner. The findings of facts recorded by the lower appellate Court do not require any interference by this Court as they do not give rise to any substantial question of law appears to be involved in this second appeal. 14. The second appeal is accordingly, dismissed. No order as to costs.