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2011 DIGILAW 1016 (CAL)

Debi Prasad Ghosh @ Bablu Ghosh v. .

2011-08-02

TAPAN KUMAR DUTT

body2011
Judgment : TAPAN KUMAR DUTT, J. This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows: The plaintiff/respondent filed a suit for declaration that she has absolute right, title and interest in the suit property and a decree for permanent injunction restraining the defendants/appellants from causing any damage to the suit property and from making any construction in the suit property and also from disturbing the peaceful possession of the plaintiff in the suit property. The plaintiff/appellant’s case was that she had purchased the suit property from one Nazarali Sardar on 18.3.1969 by one registered sale deed and since then she has been paying tax to the Government and the local municipality and her name has been rightly recorded in the records-of-right and she has been possessing the suit property as owner thereof. The plaintiff’s further case was that the defendants illegally got their names recorded in the settlement records as ‘jabar dakhal kar’. But pursuant to the objection raised by the plaintiff the names of the defendants were struck off from the records and the plaintiff’s name was recorded in the finally published L.R. records-of-right. Thereafter, the defendants started threatening the plaintiff to dispossess the plaintiff from the suit property, and thus the suit was filed. The defendants filed a written statement denying the material allegations made in the plaint and contested the suit. The defendants’ case was that the recorded owners of the suit properties were Sahebjan Mia and Alijan Mia but at the time of partition the said owners left the suit property and the defendants came to India from the then East Pakistan and as per the advice of the Bhatpara Relief Society the defendants took possession of the suit property in 1950. And according to the defendants Nazarali Mia did not have any title in the suit property. It further appears that in the written statement the defendants have stated that they also paid municipal taxes though in the name of the plaintiff. Defendants have also stated that they have no intention to grab the property of another person and that the defendants are still ready to quit and vacate the property in favour of the said Sahebjan Mia and Alijan Mia and/or their successors and/or purchase the property at a reasonable consideration. The said suit came up for hearing. Defendants have also stated that they have no intention to grab the property of another person and that the defendants are still ready to quit and vacate the property in favour of the said Sahebjan Mia and Alijan Mia and/or their successors and/or purchase the property at a reasonable consideration. The said suit came up for hearing. The learned Trial Court by its judgment and decree dated 29th January, 2002 dismissed the said suit. The learned Trial Court found that Nazarali had purchased the suit property from Alijan Mia and the plaintiff had purchased the suit property from Nazarali. The learned Trial Court also recorded that the defendants have also stated that the Alijan was the owner of the property. And, thus, the learned Trial Court found that there was no dispute that Alijan was the owner of the suit property. The learned Trial Court also found that Nazarali’s name was recorded in the R.S. record of right. The learned Trial Court concluded that it has been proved that the plaintiff had purchased the suit property from Nazarali Sardar. But the question was whether the plaintiff ever got possession of the suit property. The learned Trial Court found that it could not be ascertained whether the defendants were in possession of the suit property since 1950 and the ration cards produced on behalf of the defendants did not clearly disclose the address and as such nothing can be found in favour of the defendants from such ration cards. The learned Trial Court also considered the voters’ list produced by the defendants but came to the conclusion that it cannot be held clearly as from which year the defendants are in possession of the suit property. The learned Trial Court also observed that in the suit it is not the issue whether the defendants acquired title by way of adverse possession. The learned Trial Court observed that the defendants failed to prove the exact date or year when they came into the suit property. But from the evidence it is clear that the plaintiff is out of possession of the suit property and the suit property is in possession of the defendants. The learned Trial Court observed that the defendants failed to prove the exact date or year when they came into the suit property. But from the evidence it is clear that the plaintiff is out of possession of the suit property and the suit property is in possession of the defendants. The learned Trial Court was of the view that the plaintiffs failed to produce any satisfactory evidence to show that after purchasing the suit property the plaintiff got possession of the same but the plaintiff has better title than the defendant. The learned Trial Court applied Section 34 of the Specific Relief Act and observed that the Court cannot grant declaration when the plaintiff has omitted to pray for further relief and, accordingly, the suit was dismissed. The learned Trial Court found that the plaintiff could have prayed for decree for khas possession of the suit property but she did not make such prayer. Challenging the judgment and decree of the learned Trial Court the plaintiff filed title appeal No. 41 of 2002. The said appeal was placed before the learned District and Sessions Judge, Fast Track Court-III, Barrackpore and the said learned Judge by judgment and decree dated 10th January, 2008 allowed the said title appeal and set aside the judgment and decree of the learned Trial Court. The learned Lower Appellate Court declared that the plaintiff has acquired the title in the suit property by virtue of the registered sale deed dated 18.3.1969 and the plaintiff is also entitled to get recovery of khas possession subject to the payment of Court fees of Rs.100/- before the learned Trial Court and if such Court fees is paid, the defendants will have to vacate and deliver khas possession of the suit property to the plaintiff within a stipulated period of time. The learned Lower Appellate Court also directed the defendants, by an order of permanent injunction, not to damage the suit property in any way. The learned Lower Appellate Court also directed the defendants, by an order of permanent injunction, not to damage the suit property in any way. The learned Lower Appellate Court found that the defendants did not file any cross-appeal or cross-objection and as such the learned Lower Appellate Court had no power to modify the judgment and decree of the learned Trial Court with regard to the findings of the learned Trial Court that the plaintiff has acquired title in the suit property by virtue of the sale deed but she has no possession of the suit property and that the defendants have not acquired any title by adverse possession in the suit property but they have been possessing the suit property. The learned Lower Appellate Court found that the plaintiff/appellant has acquired title in the suit property by virtue of the registered sale deed dated 18.3.1969 but she has no possession of the suit property and the defendants have not acquired any title in the suit property by way of adverse possession but they have been possessing the same. The learned Lower Appellate Court was of the view that even though the plaintiff has not prayed for a decree for recovery of khas possession of the suit property the Court can mould the relief according to the provisions of the Order VII Rule 7 of the Civil Procedure Code. The learned Lower Appellate Court found that the defendants have been possessing the suit property illegally and the Court can grant a decree for recovery of khas possession in favour of the plaintiff subject to payment of the Court fees by the plaintiff. Accordingly, the learned Lower Appellate Court allowed the said title appeal as indicated above. The defendants filed the present second appeal challenging the aforesaid judgement and decree passed by the learned Lower Appellate Court. The learned Advocate appearing on behalf of the appellants submitted that the suit is not maintainable because the plaintiff did not pray for recovery of possession within the period specified under Article 65 of the Limitation Act. Reference was made to Sections 3 and 27 of the said Limitation Act. Under Article 65 of the Limitation Act the period of limitation is 12 years and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. Reference was made to Sections 3 and 27 of the said Limitation Act. Under Article 65 of the Limitation Act the period of limitation is 12 years and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. In the present case, the learned Trial Court observed that in the suit it is not the issue whether the defendant has acquired title by way of adverse possession. Even though the defendants claimed that they took possession of the suit property in the year 1950 yet from the pleadings of the defendants it is found that in paragraph 8 of the written statement the defendants have stated that they also paid the municipal taxes in the name of the plaintiff and they had no intention to grab the property of another person and that the defendants are still ready to quit and vacate the suit property in favour of Sahebjan and Alijan Mia or their successors and/or purchaser of the said property at a reasonable consideration. The learned Advocate for the appellants submitted that all the ingredients of adverse possession have been stated in the written statement but only the statement that the defendants have acquired title by way of adverse possession has not been mentioned. The pleadings in the written statement, as indicated above, shows the contrary, that is, the defendants failed to plead any hostile title in respect of the suit property against the true owner. The learned Trial Court came to the specific finding that the defendants failed to prove the exact date or year in which they came in the suit property and there is no document from which it can be ascertained that the defendants are in possession of the suit property since 1950. The learned Trial Court also found that the plaintiff had purchased the property from Nazarali Sardar. But the plaintiff is out of possession in respect of the suit property. The learned Lower Appellate Court also found that the plaintiff has acquired title in the suit property by virtue of the registered sale deed and the defendants have not acquired any title by way of adverse possession even though they have been possessing the suit property. Therefore, with regard to the point of adverse possession both the learned Courts below did not make any finding in favour of the defendants. Therefore, with regard to the point of adverse possession both the learned Courts below did not make any finding in favour of the defendants. On the contrary, the learned Lower Appellate Court found that the defendants did not acquire any title by way of adverse possession. The learned Advocate for the appellants referred to the decision reported at 2007(2) CAL LT 634 (HC) (Hriday Das & Ors. –V- Smt. Monica Chowdhury & Anr.) and referred to Paragraph 30 of the said reports where the Hon’ble Court held that adverse possession cannot be established unless it is clearly demonstrated, both in pleadings and in evidence, that the true owner was made aware of a hostile title being set up and that notwithstanding such knowledge, the period prescribed under Article 65 of the Schedule to the Limitation Act had expired. It was also held by the Hon’ble Court that the possession that is required to be demonstrated is a continuous and uninterrupted possession and is an integral part of proving adverse possession and if continuous possession is not established, a plea of adverse possession needs no further examination. The Hon’ble Court also held that upon long and uninterrupted possession having been established, the next inquiry commences as to whether a title hostile to the true owner had been asserted and such inquiry is primarily an enquiry on facts. The learned Advocate for the appellants submitted that since the appellants have been in long and continuous uninterrupted possession of the suit property the learned Courts below should have held that the appellants have acquired title by way of adverse possession. This Court cannot accept such submission in view of the fact that there is nothing on record to show that any hostile title was set up by the appellants in respect of the suit property. On the contrary, the pleadings of the appellants, as indicated above, failed to make out any case of adverse possession. This Court cannot accept such submission in view of the fact that there is nothing on record to show that any hostile title was set up by the appellants in respect of the suit property. On the contrary, the pleadings of the appellants, as indicated above, failed to make out any case of adverse possession. The said learned Advocate also cited another decision reported at AIR 1935 Allahabad 265 (Chanar Singh Jai Ram –V-Chanar Singh Jeet Singh) in support of his contention that it is not necessary that the possession of the defendants in respect of the suit property ought to have been brought to the knowledge of the owner for the purpose of proving adverse possession and it is sufficient that if the possession was overt and without any attempt at concealment so that the present plaintiff, if she had exercised due vigilance, would have been aware of what is happening. The learned Advocate appearing on behalf of the respondent cited a decision reported at 2005(4) CHN (SC SUPPL) 5 (B.Leelavathi –V- Honnamma & Anr.) wherein the Hon’ble Supreme Court held that adverse possession is a question of fact which has to be specifically pleaded and proved. The learned Advocate for the respondent cited another decision reported at 2005(8) SCC 330 (Saroop Singh –V-Banto and others) wherein the Hon’ble Supreme Court held that in terms of Article 65 of the Limitation Act the starting point of limitation commences from the date the defendant’s possession becomes adverse and unless the person possessing the land has a requisite animus the period for prescription does not commence. He also referred to a decision reported at (2004) 10 SCC 779 (Karnataka Board of Wakf - V Government of India & Others) wherein the Hon’ble Supreme Court was pleased to observe in Paragraph 11 of the said reports as follows: “In the eye of the 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. 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. 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 “nec vi, nec clam, nec 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. (See S.M. Karim v. Bibi Sakina, Parsinni V. Sukhi and D.N. Venkatarayappa V. State of Karnataka). 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 show: (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. (Mahesh Chand Sharma (Dr.) –V- Raj Kumari Sharma).” The said learned Advocate for the respondents also cited a decision reported at (2006) 7 SCC 570 (T.Anjanappa & Others –V- Somalingappa & Others). Paragraph 12 of the said reports is quoted as follows: “The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. Paragraph 12 of the said reports is quoted as follows: “The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.” The learned Advocate for the appellants cited a decision reported at AIR 1957 Allahabad 575 (Manmohan Das & Others –V- Bahauddin & Others). Reference was made to Paragraph 48 of the said reports wherein the Hon’ble Court held while considering the Limitation Act that the absence of any specific provision for extinction of a right to property does not, however, necessarily mean that such right can be enforced even when a suit for possession of that property has become time barred. The said learned Advocate for the appellants referred to another decision reported at AIR 2009 Bombay 165( Narendra Akash Maharaj Petkar & Anr. –V- Shahaji Baburao Petkar & Ors.) where it has been observed that the period of limitation provided under Article 65 of the Limitation Act is of 12 years and the time for filing the suit begins to run from the date on which the possession of the defendant becomes adverse to the plaintiff. According to the said learned Advocate the suit was filed in the year 2000 and possession became adverse at least in the year 1975. This Court is of the view, considering the materials on record, that the defendants have failed to prove any plea of adverse possession. According to the said learned Advocate the suit was filed in the year 2000 and possession became adverse at least in the year 1975. This Court is of the view, considering the materials on record, that the defendants have failed to prove any plea of adverse possession. The said learned Advocate cited another decision reported at 1989 (1) CLJ 447 ( Amulya Ratan Ghorai –V- Secretary of Sri Sri Ram Krishna Paramahansa Sebak) and reference was made to Paragraph 20 of the said reports. The Hon’ble Court in the said paragraph was pleased to observe that an entry in the record-of-rights does not create any title in favour of any person as raising a presumption is not creating a title nor does it extinguish a right either. The Hon’ble Court observed that the entry creates no right, nor takes away any right, as it is made on the basis of possession but at the same time it may be said that it is a proof of title so far as the title is based on possession. Since the defendants have failed to prove any adverse possession in respect of the suit property it cannot be said in the instant case that the period of limitation had begun to run as envisaged under Article 65 of the Limitation Act. The learned Advocate for the appellants cited a decision reported at AIR 1966 SC 735 (Bhagwati Prasad -V- Chandramaul) wherein the Hon’ble Supreme Court was pleased to observe in Paragraph 10 of the said reports that if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. As indicated above, this Court is of the view that in the instant case the pleadings in the written statement demolishes the case of adverse possession. The written statement is totally lacking the ingredients of adverse possession. The decision reported at AIR 1985 Calcutta 233 (Sunil Chandra Ghosh –V- Hemendra Kr. As indicated above, this Court is of the view that in the instant case the pleadings in the written statement demolishes the case of adverse possession. The written statement is totally lacking the ingredients of adverse possession. The decision reported at AIR 1985 Calcutta 233 (Sunil Chandra Ghosh –V- Hemendra Kr. Deb), cited on behalf of the appellants, does not help the appellants since the pleadings in the written statement even if they are read as a whole, do not make out any case of adverse possession. The question of the plaintiff dissecting the pleadings in the written statement does not arise. The learned Advocate for the appellants challenged the finding of the learned lower Appellate Court that since the defendants did not file any cross appeal or cross-objection against the judgement and decree passed by the learned Trial Court the lower Appellate Court has no power to modify the impugned judgement and decree passed by the learned Trial Court. The said learned Advocate submitted that it was not absolutely necessary to file such cross-appeal or cross-objection and yet the defendants could challenge some findings made by the learned Trial Court. He cited the decisions reported 2003(5) SCC 321 , AIR 1973 Calcutta 91, AIR 1982 Calcutta 127, AIR 1963 MP 15 , AIR 1992 A.P. 294 and AIR 2003 SC 1989 . The facts of the case reported at AIR 2003 S.C. 1989 (Banarsi & Others – V- Ram Phal) were not similar to the facts of the instant case and as such it will not be proper to apply the decision in the said reports to the instant case. The other reported decisions, as cited by the said learned Advocate, support the contention of the said learned Advocate on the point that there was no absolute necessity for the defendants to file cross-objection or cross-appeal. For example, in 2003(5) SCC 321 (Postgraduate Institute of Medical Education and Research and another –V- A.P. Wasan And Others) at paragraph 26 the Hon’ble Court observed that the Civil Procedure Code does not make it obligatory to file a cross objection against an adverse finding of a Lower Court and that the respondents could attack such findings in its submissions to the appellate forum. In AIR 1973 Calcutta 91 (Assistant Controller of Customs for Prevention & Others –V The New Central Jute Mills Co. In AIR 1973 Calcutta 91 (Assistant Controller of Customs for Prevention & Others –V The New Central Jute Mills Co. Ltd.) the Honble Court held that under Order 41 Rule 22 C.P.C the respondent is entitled to canvass the correctness of the findings against it in order to support the judgement that has been passed against the appellant (paragraph 8 of the reports). In AIR 1982 Calcutta 127 (M/s. Tide Water Oil Company (India) Ltd. –V- K.D. Banerjee) the Hon’ble Court held (in paragraph 9) that a respondent can challenge an adverse finding without filing an appeal or a cross-objection. In AIR 1963 Madhya Pradesh 15 (Pannu Jeegania –V- Dewi Prashad Sukh Chand) the Hon’ble Court held that an Appellate Court cannot refuse to consider a question decided against the defendant/respondent (in an appeal filed by plaintiff) on the ground that no cross-objection was filed by the defendant. In AIR 1992 Andhra Pradesh 294 ( Ballani Ranganayakulu & Ors. –V- Mattupalli Nageswara Rao) (at paragraph 12) the Honble Court held that the respondent in an appeal can support the order of the Rent Controller by canvassing the correctness of the findings held against him, even though he had not preferred any appeal and there is no need for the respondent to file cross-objections as against such findings. In AIR 2003 SC 1989 , at paragraph 12 of the said reports, the Hon’ble Court held that to the extent to which the decree is against a respondent (in an appeal) and he wishes to get rid of it he should have either filed an appeal of his own or taken a cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. In the said reports a suit for specific performance of agreement was, inter alia, the subject-matter of consideration where the question of grant of a larger relief or smaller relief may arise. In this regard paragraphs 12 and 13 of the said reports may be seen. But in the instant case, the plaintiff/respondent’s suit was entirely dismissed by the Trial Court. The question of the defendant/appellant preferring any appeal against such decree did not arise. The judgement reported at 2003(1) CLJ 289 (Supreme Court) (Banarsi & Ors. In this regard paragraphs 12 and 13 of the said reports may be seen. But in the instant case, the plaintiff/respondent’s suit was entirely dismissed by the Trial Court. The question of the defendant/appellant preferring any appeal against such decree did not arise. The judgement reported at 2003(1) CLJ 289 (Supreme Court) (Banarsi & Ors. –V- Ram Phal) which was considered by the lower Appellate Court is the same as the one reported at AIR 2003 SC 1989 . It appears that the learned Lower Appellate Court was not right in applying the decision in the said reports to the facts of the instant case. The learned Advocate for the appellants rightly submitted that the learned Lower Appellate Court failed to properly appreciate the true meaning of the said reports in its proper perspective. However, even if the appellants are allowed to challenge the findings of the learned Courts below on the points of alleged adverse possession of the appellants in the suit property and the title of the respondent in the suit property this Court has already discussed the point of adverse possession and found that the defendants have failed to make out any case of adverse possession. The learned Trial Court has found that the plaintiff has filed the registered kobala, Municipal Tax receipt, khajna dakhila, record of right to prove her case. On perusal of the registered deed of conveyance the Trial Court found that the plaintiff had purchased the suit property from one Nazar Ali Sardar, and Nazar Ali had purchased the property from one Alijan Mia and the defendant had also stated that Alijan was the owner of the property. The learned Trial Court also found that NazarAli’s name was recorded in the R.S record-of-right. The learned Trail Court further found that in the L.R. record-of-right filed by the plaintiff and the defendant the name of the plaintiff has been recorded in respect of the suit property but in the remarks column the name of the defendant has been recorded as ‘Jabardakhal kar’ since 1975. The learned Trial court ultimately found that the plaintiff has a better title in the suit property than the defendant but since the plaintiff has failed to pray for recovery of khas possession the suit must fail in terms of Section 34 of the Specific Relief Act. The learned Trial court ultimately found that the plaintiff has a better title in the suit property than the defendant but since the plaintiff has failed to pray for recovery of khas possession the suit must fail in terms of Section 34 of the Specific Relief Act. The learned Lower Appellate Court also found that the plaintiff has acquired title in the suit property but she has no possession therein. The learned Advocate for the appellants cited a decision reported at AIR 2009 Supreme Court 2966 (T.K.Mohammed Abubucker(D) Thr.L. Rs. & Ors. –VP. S. M. Ahamed Abdul Khader & Ors.) in support of his contention that a plaintiff in a suit for declaration of title and possession can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants. He cited another decision reported at 2010 (3) CHN (Cal) 49 (Asha Roy @ Gouri Roy –V- Binapani Basak) in support of his contention that a vendor of a property who does not have title to the property cannot sell such property and/or transfer title of such property to any other person. In 2010 (3) CHN (Cal) 49 this Court found that the vendor concerned had purchased a certain plot of land with a certain plot number. But the learned lower Appellate Court concerned in the said case had declared the title of the plaintiff in the said case in respect of another plot number. Thus, this Court held in the said reports that the learned Lower Appellate Court concerned should not have granted any relief to the plaintiff as the plaintiff’s vendor himself did not obtain any title to the property concerned. So the facts of the said reports are not similar to the facts of the instant case. There cannot be any dispute with regard to the proposition that if a person does not have title to any property he cannot transfer any title in such property to another person but the facts in the instant case are different as already stated above. The proposition of law laid down in AIR 2009 SC 2966 cannot be disputed at all but in this case both the learned Courts below have found that the plaintiff has acquired title to the property. The proposition of law laid down in AIR 2009 SC 2966 cannot be disputed at all but in this case both the learned Courts below have found that the plaintiff has acquired title to the property. The learned Advocate for the appellants cited a decision reported at 2004(10) SCC 779 in support of his contention that a plaintiff filing a title suit should be very clear about the origin of title over the property and he must specifically plead it. There is no dispute with regard to such proposition of law and in the instant case the plaintiff has pleaded, very clearly, about the origin of his title. The learned Advocate for the appellants cited a judgment reported at AIR 1934 Nagpur 13 (Nathu & Others –V- Gulabchand & Others) in support of his submission that the plaintiff never got possession of the suit property and the plaintiff never got a valid title to the suit property. The facts of the said reports were very different. In the said reports the plaintiffs were claiming title to the property on the basis that a person had executed an unregistered sale deed in respect of his share in immovable property in favour of plaintiffs’ predecessor but the plaintiff claimed that the sale was valid as it was for less than Rs.100/-and transfer was made by delivery of property. Thus, it is seen that the facts involved in the said reports were quite different. The Hon’ble Court held in the said reports that an undivided share is tangible immovable property and even though it be less than Rs. 100 such transfer may be made by delivery of possession. The Hon’ble Court held in the said reports that “ where, as in the case of an undivided share, actual delivery of possession may be impossible, to be effective as a conveyance of title the sale deed must be registered. In the instant case the plaintiff has a registered sale deed in her favour and the record-of-right bears her name and she has also produced the khajna receipts. The said reports being AIR 1934 Nagpur 13 cannot be of any assistance to the appellants and it does not support the contention of the appellants’ learned Advocate. The learned Advocate for the appellants cited a judgment reported at 2007(8) Supreme 561 (Gurunath Manohar Pavaskar & Ors. The said reports being AIR 1934 Nagpur 13 cannot be of any assistance to the appellants and it does not support the contention of the appellants’ learned Advocate. The learned Advocate for the appellants cited a judgment reported at 2007(8) Supreme 561 (Gurunath Manohar Pavaskar & Ors. –V- Nagesh Siddappa Navalgund & Ors.) and referred to paragraph 12 of the said reports. In paragraph 12 of the said reports the Hon’ble Court held that a revenue record is not a document of title but it merely raises a presumption in regard to possession. The Hon’ble Court held that presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act. In the instant case, both the learned Courts below have held that the defendants are in possession of the suit property. Thus, with regard to the possession of the suit property both the learned Courts below are of the same view. The learned Advocate for the plaintiff/respondent has cited a decision reported at 2004(1) SCC 271(Md. Mohammad Ali (Dead) by Lrs. –VJagadish Kalita & Others). The Hon’ble Court in paragraph 20 of the said reports was pleased to observe that “By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908 that he was in possession within 12 years proceeding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession”. The Hon’ble Court in paragraph 21 of the said reports was pleased to observe that “ For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi”. In the instant case, this Court has already found that the defendants/appellants have failed to prove adverse possession and they have even failed to make out any case for adverse possession. Both the learned Courts below have come to the conclusion that the plaintiff had acquired title to the suit property. In the instant case, this Court has already found that the defendants/appellants have failed to prove adverse possession and they have even failed to make out any case for adverse possession. Both the learned Courts below have come to the conclusion that the plaintiff had acquired title to the suit property. And this Court is not inclined to upset such a concurrent finding of fact. The learned Advocate appearing on behalf of the appellants submitted that the provisions of Order VII Rule 7 C.P.C. were wrongly invoked by the learned Lower Appellate Court. He cited the decision reported at AIR 2009 Supreme Court 1103 (Bachhaj Nahar –V- Nilima Mandal & Others) and submitted that the Hon’ble Court was pleased to hold, inter alia, that a suit for title and injunction could not be converted into a suit for enforcement of an easementary right. It will appear from paragraph 17 of the said reports that the Hon’ble Court was pleased to observe that in the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right and in the absence of pleadings and an opportunity to the first defendant to deny such claim, the conversion of a suit for title into a suit for enforcement of an easementary right is not proper. In the instant case, it has been known to both the parties that the real dispute between the parties was and has been with regard to title and possession in respect of the suit property. Since, the plaintiff claimed in the plaint that she has title and possession in respect of the suit property she has made a prayer for decree for injunction also for restraining the defendants from disturbing her peaceful possession in the suit property. But, ultimately, it was found by both the learned Courts below that the plaintiff is not in possession of the suit property and as such the learned Lower Appellate Court invoked provisions of Order VII Rule 7 and moulded the relief, that is, the consequential relief prayed for by the plaintiff. Thus, the facts and circumstances of the said reports are not similar to the facts and circumstances of the instant case and the said reports cannot be of any assistance to the defendants/appellants. Thus, the facts and circumstances of the said reports are not similar to the facts and circumstances of the instant case and the said reports cannot be of any assistance to the defendants/appellants. The said learned Advocate cited another decision reported at AIR 1991 Supreme Court 409 (Om Prakash & Others –V- Ram Kumar & Others) and referred to Paragraph 4 of the said reports wherein the Hon’ble Court was pleased to observe, inter alia, that a party cannot be granted a relief which is not claimed if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. In the instant case, as already discussed above, the parties were quite aware with regard to the real bone of contention and, accordingly, they have fought out their respective cases. The dispute with regard to possession was very much in issue in the suit itself and thus when it is found that the defendants are in possession of the property the learned Lower Appellate Court moulded the relief so that justice is done and in the process also prevented multiplicity of proceedings. The question of the defendants suffering any serious prejudice or they being deprived of valuable rights under the statue does not arise in the instant case. The learned Advocate for the appellants cited another decision reported at 1998(5) SCC 381 ( Ganesh Shet –V- Dr. C.S.G.K. Setty & Others) and referred to paragraphs 22, 23 and 24 of the said reports. It appears that the Hon’ble Court has been pleased to observe that as to the ‘general relief’ that is the other relief to be granted in a suit for specific performance must be consistent with both the pleadings and the proof. In the present case, it is not a suit for specific performance but it is a suit with regard to title and possession and, thus, the facts of the said reports were different from the facts of the present case and the said reports cannot be of any assistance to the appellants. The said learned Advocate cited another decision reported at AIR 1951 Supreme Court 177 (Firm Sriniwas Ram Kumar –V- Mahabir Prasad & Others) and referred to paragraph 9 of the said reports. The said learned Advocate cited another decision reported at AIR 1951 Supreme Court 177 (Firm Sriniwas Ram Kumar –V- Mahabir Prasad & Others) and referred to paragraph 9 of the said reports. It is difficult to appreciate as to how the said reports can be of any assistance to the appellants. Paragraph 9 of the said reports is quoted as under: “9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right & that the H.C. took an undoubtedly rigid & technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the pltf’s case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect & make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively & there is nothing in the Civil P.C. to prevent a party from making two or more inconsistent sets of allegations & claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the deft’s own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Mohan Manucha V. Manzoor Ahmad, 70 I.A.1: (A.I.R. (30) 1943 P.C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P.C. But the P.C. held that it was open in such circumstances to the pltf. to repudiate the transaction altogether & claim a relief outside it in the form of restitution under S. 65, Contract Act. Although no such alternative claim was made in the plaint, the P.C. allowed it to be advanced & gave a decree on the ground that the resp. could not be prejudiced by such a claim at all & the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heard ex parte in the absence of the resp.” In the present case, the defendants themselves have taken the stand that they are in possession of the suit property and the learned Courts below have also found that the defendants are in possession of the suit property and, therefore, the learned Appellate Court moulded the relief prayed for by the plaintiff by granting a decree for recovery of possession subject to the payment of Court fees. The said learned Advocate cited another decision reported at AIR 2002 SC 136 (Rajendra Tiwary –V- Basudeo Prasad & Another) and referred to Paragraph 14 of the said reports wherein it has been held that where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted. In the instant case, the parties knew what exactly they were fighting for and they led evidence about it. The plaintiff has made a prayer for passing of a decree that the plaintiff has absolute ownership in respect of the suit property and the plaintiff has also made a prayer for consequential relief by way of injunction. It is only when the learned Lower Appellate Court found that the defendants are in possession of the suit property it intended to mould the relief which was claimed by the plaintiff as a consequential relief. The concept of a larger relief or a smaller relief is not attracted in the facts and circumstances of the present case. The learned Lower Appellate Court only prevented multiplicity of proceedings by moulding the relief in the present case. The learned Advocate for the plaintiff/respondent cited a decision reported at 2002 A I H C 4280 ( Banambar Swain & Others –V- Sankarsan Dash) and referred to paragraph 9 of the said reports. The said paragraph 9 is quoted below: “9. Perusal of the decisions referred to above clearly indicates that even if a prayer for recovery of possession is not made the Court is not powerless to grant relief for recovery of possession. In the present case as it appears from the plaint the plaintiff had prayed for not only for confirmation of possession but also a general prayer was made to pass any order as may be deemed just and proper. In view of the law laid down by this Court in the aforesaid decisions, the lower appellate Court was justified in directing recovery of possession in absence of the prayer to that effect. In view of the law laid down by this Court in the aforesaid decisions, the lower appellate Court was justified in directing recovery of possession in absence of the prayer to that effect. It also appears that the plaintiff had paid required ad valorem court fee and there could not have been any difficulty on the part of the lower appellate Court in directing recovery of possession”. The learned Advocate for the plaintiff/respondent also cited a decision reported at AIR 1966 Supreme Court 735. In paragraph 10 of the said reports the Hon’ble Supreme Court was pleased to observe that it is necessary to bear in mind that considerations of form cannot over-ride the legitimate considerations of substance and if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. In paragraph 15 of the said reports the Hon’ble Supreme Court was pleased to observe that where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties was, in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial then the formal requirement of pleadings can be relaxed. In the instant case, the issue with regard to title and possession in respect of the suit property had been known to the parties and the parties have led evidence in that regard. The learned Advocate for the appellants cited a decision reported at AIR 2009 Punjab and Haryana 152 (Shinder Pal Singh & Another –V- Karum Singh & Others) in support of his contention that the suit is not maintainable and is hit by Section 34 of the Specific Relief Act. It appears from the said reports that in the said reports the suit concerned was for mere declaration but in the instant case, the plaintiff has prayed for a declaration and also injunction. Of course, the learned Lower Appellate Court found that the consequential relief of injunction has to be moulded in view of the findings made by the learned Courts below. Of course, the learned Lower Appellate Court found that the consequential relief of injunction has to be moulded in view of the findings made by the learned Courts below. The said learned Advocate cited another decision reported at AIR 1993 Supreme Court 957 (Vinay Krishna –V- Keshav Chandra & Another). It appears from the said reports that in the said case the plaintiff merely prayed for a declaration of the plaintiff’s absolute ownership in respect of the properties in dispute in the said case and the plaintiff omitted to make any prayer for any consequential relief. Thus, from the facts as discussed above, it will appear that the facts of the present case are different from the facts of the said reports, and the said reports, accordingly, cannot be of any assistance to the appellants in the present appeal. The said learned Advocate cited another decision reported at AIR 1972 Supreme Court 2685 (Ram Saran & Another - Smt. Ganga Devi). It would appear from the said reports the plaintiffs in the said case also prayed for a mere declaration only that they are the sole owners of the suit properties, but, in the present case, the plaintiff has prayed for a consequential relief of injunction which the learned Lower Appellate Court found is required to be moulded. Thus, the facts of the said reports are also not similar to the facts of the instant case, and, accordingly, the said reports cannot help the appellants in the present case. The learned Advocate for the appellants cited another decision reported at 2011(1) Supreme 537 (Hari Ram –V- Jyoti Prasad & Anr.) in support of his contention that even if before the learned Trial Court or the learned Lower Appellate Court a point is not argued, it can be argued in second appeal before the High Court. The learned Advocate for the appellants cited another decision reported at 2011(1) Supreme 537 (Hari Ram –V- Jyoti Prasad & Anr.) in support of his contention that even if before the learned Trial Court or the learned Lower Appellate Court a point is not argued, it can be argued in second appeal before the High Court. It appears from the said reports that a point with regard to the plea of limitation was raised in a second appeal in the High Court concerned notwithstanding the fact that such plea was not raised before the learned Trial court or before the learned First Appellate court, and the Hon’ble High Court concerned considered at length the point with regard to limitation and held that such a plea, even though not raised either before the learned Trial Court or before the First Appellate Court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act. It appears from the said reports that the Hon’ble Supreme Court was pleased to consider the question and ultimately the Hon’ble Supreme Court was pleased to find in the said reports that the plea that the suit is barred by limitation had no merit at all. This Court has already considered above the point with regard to limitation and this court has found that since the defendants have failed to prove any adverse possession in respect of the suit property it cannot be said that the period of limitation had begun to run as envisaged under Article 65 of the Limitation Act. In view of the discussions made above, this court finds that the learned Lower Appellate Court did not commit an error in allowing the title appeal and setting aside the judgment and decree passed by the learned Trial Court and in declaring that the plaintiff has acquired title in the suit property and is also entitled to a decree for recovery of khas possession of the suit property. It appears that the learned Lower Appellate Court has passed the decree, as aforesaid, subject to the plaintiff/respondent paying Court fees of Rs. It appears that the learned Lower Appellate Court has passed the decree, as aforesaid, subject to the plaintiff/respondent paying Court fees of Rs. 100/- before the learned Trial Court and the learned Lower Appellate Court has directed that the defendant/appellants to vacate and deliver khas possession of the suit property to the plaintiff within one month from the date of payment of additional Court fee by the plaintiff in the learned Trial Court. This part of the decree with regard to the payment of additional Court fees requires modification and is accordingly modified as follows. The learned Trial Court is directed to pass appropriate orders with regard to the amount of additional Court fees which the plaintiff/respondent will be required to deposit in view of the decree for recovery of khas possession having been passed by the learned Lower Appellate Court and the learned Trial Court shall also fix the time within which such additional Court fees will have to be deposited by the plaintiff/respondent and the plaintiff/respondent shall deposit such additional Court fees within the time that will be stipulated by the learned Trial Court. The defendants/appellants shall vacate and deliver khas possession of the suit property in favour of the plaintiff/respondent within one month from the date of deposit of additional Court fees by the plaintiff/respondent in the learned Trial Court. Subject to the modification indicated above, the judgment and decree passed by the learned Lower Appellate Court is affirmed. The Second appeal is disposed of. Lower Court Records be sent down to the learned Court concerned immediately. There will be no order as to costs.