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2012 DIGILAW 1157 (PAT)

Bhikhari Sahni v. Ramjanam Mahto

2012-08-22

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned counsel, Mr. Shri Prakash Srivastava appearing on behalf of the appellants and the learned counsel, Mr. Suman Kumar appearing on behalf of the respondents under Order 41 Rule 11 C.P.C. 2. The defendants-appellants-appellants have filed this appeal against the judgment and decree dated 18.12.2008 passed by the Additional District Judge, F.T.C. V, Motihari, East Champaran in Title Appeal No.9 of 2005/2 of 2006 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 16.12.2004 passed by Munsif, Sikarahana at Motihari in Title Suit No.32 of 1998. 3. The plaintiffs-respondents filed the aforesaid suit praying for declaration of title and further for declaration that the possession of the defendants over the suit property measuring 3 katthas is illegal and without any authority and prayed for recovery of possession of the suit property. The plaintiffs claimed their title and prayed for recovery of possession on the facts inter alia that they have purchased the suit property through registered sale deed dated 7.5.1985 and since after purchase, they came in possession and continued as such on the suit property. The defendants have house by the side of the suit property and they desired to purchase the suit property from the plaintiff. On refusal, the defendants on 10.10.1997 forcibly dispossessed the plaintiffs. 4. The defendants filed contesting written statement alleging that the suit property was gifted by the ex-landlord through gift deed 5.1.1961 and since then they are continuing in possession for more than 38-39 years. The plaintiff’s sale deed is fraudulent and that it is without consideration. The defendants also claimed title on the basis of adverse possession. 5. The trial court recorded the finding that the defendants have failed to prove their possession over the suit property and also they failed to prove their title by adverse possession. The trial court decreed the suit finding that the plaintiffs have been able to prove their title and possession over the suit property. The appellants filed title appeal before the Lower Appellate Court. After considering the material on record, the Lower Appellate Court dismissed the title appeal. 6. The learned counsel, Mr. The trial court decreed the suit finding that the plaintiffs have been able to prove their title and possession over the suit property. The appellants filed title appeal before the Lower Appellate Court. After considering the material on record, the Lower Appellate Court dismissed the title appeal. 6. The learned counsel, Mr. Srivastava appearing on behalf of the appellants submitted that almost all the witnesses examined on behalf of the defendants-appellants have stated that the defendants-appellants are in possession of the suit property since much earlier and the widow of the ex-landlord has also been examined as D.W.7 who has stated that her husband has gifted the property to the defendant’s father in the year 1961 and delivered possession of the suit property to the defendants but both the courts below misread the evidences of the witnesses and did not rely on them. According to the learned counsel, even if it is held that the gift deed is unregistered then also the possession of the appellants will be adverse from the date of the deed of gift, Exhibit A but both the courts below have recorded wrong finding that the defendants have failed to either prove possession or adverse possession. 7. On the contrary, the learned counsel appearing on behalf of the plaintiffs-respondents submitted that both the courts below have concurrently recorded the finding that the defendants are not in possession and, therefore, there is no question of adverse possession arises. According to the learned counsel, since after purchase in the year 1985, the plaintiffs-respondents continued in possession and they have been dispossessed only in 1997. The defendant’s claim is on the basis of adverse possession and the gift of the year 1961. The gift deed is unregistered, therefore, both the courts below have rightly not relied upon the acquisition of title by gift deed. 8. From perusal of the judgment of both the courts below, it appears that both the courts below have considered the evidences of the witnesses adduced on behalf of the defendants who have stated that since the year of execution of the gift deed, the defendants are coming in peaceful possession of the property. Admittedly, the gift deed, Exhibit A is of the year 1961 which is unregistered. Admittedly, the gift deed, Exhibit A is of the year 1961 which is unregistered. Therefore, since this is unregistered gift deed, no title will pass as it is well settled principles of law that if statutes require that title will pass only on registration of a document then title will pass only after the registration of the document and not by admission of the owner of the property. Here, even if it is held that D.W.7 who stated that her husband gifted the property and delivered possession, it will amount to admission of possession only. Title will never pass on mere admission. Now, therefore, the claim the of the defendants-appellants that they have acquired the title through gift deed is concerned, it cannot be accepted and, therefore, both the courts below have rightly held that the defendants have not acquired title by unregistered deed of gift, Exhibit A. Now, therefore, the second question will be as to whether the defendants-appellants have prescribed their title by adverse possession? According to the defendants-appellants their only case is that they are continuing in possession from the date of execution of unregistered gift deed. Therefore, they have prescribed title by adverse possession. Except this, there is no other case. 9. In the case of P.T. Munichikkanna Reddy and others vs. Revamma and others, (2007) 6 Supreme Court Cases 59, the Apex Court considering the previous decisions of the Apex Court has held that the right of property is now considered to be not only a constitutional or statutory right but also a human right. Therefore, it will have to be kept in mind that the courts around the world are taking an unkind view towards statutes of limitation overriding property rights. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned; once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. This test forms the basis of decision in the instant case. Intention to dispossess vis-à-vis intention to possess can be marked very distinctively in the present circumstances. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. In the present case, admittedly, the plaintiffs-respondents have purchased the suit property through registered sale deed in the year 1985. The courts below have found that the name of the plaintiff has also been mutated. According to the defendants, they are in possession of the property for more than 38-39 years. Now, therefore, the question is whether because the defendants-appellants are in possession of the property for more than 38 years whether it will constitute adverse possession. As stated above, there is nothing on record to show that from which date the plaintiff started prescribing his title by adverse possession because adverse possession presupposes that title is on the person against whom adverse possession is prescribed. On the contrary, in the present case, according to the defendants-appellants, they came in possession as owner of the property by the unregistered gift deed. Therefore, he is not recognizing the plaintiff as the real owner of the property. In such circumstances, how so long the possession may be there is absence of intention to dispossess the real owner. In such circumstances, in my opinion, both the courts below have rightly held that the plaintiffs failed to prove title by adverse possession. 10. In view of the above facts and circumstances of the case, the ground raised by the appellants is not at all substantial question of law in the present case. In my opinion, therefore, no substantial question of law is involved in this Second Appeal. As such, this Second Appeal is dismissed at the admission stage itself.