Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1146 (PAT)

Nasim Ahmad v. Sharda Devi

2013-09-20

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 13.09.1991 passed by the learned 5th Additional District Judge, Gaya in Title Appeal No.02 of 1991/44 of 1988 whereby the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 23.02.1988 passed by the Munsif 3rd, Gaya in Title Suit No. 23 of 1985. 2. The plaintiff-appellant filed the aforesaid suit for declaration that the deed of gift executed by Gopi Sao in favour of Poona Devi and the Purcha and Khatiyan under Section 106 of the Bihar Tenancy Act are void, illegal and not binding on the plaintiff. Further the plaintiff has prayed for recovery of possession if found dispossessed during the pendency of the suit. The plaintiff also prayed for injunction. 3. The plaintiff claimed the aforesaid relief alleging that the suit property relates to 12 dhurs of Cadastral Survey Plot No.772. The total area measuring 1 katha 4 dhurs belonged to Doman Ram Halwai who died leaving behind four sons, namely, Lakshman Ram, Panchu Ram, Antu Ram and Gopi Sao. On 15th Jeth, 1951 the aforesaid four sons partitioned the house and other properties by private partition. In that partition 4 dhurs in the house was allotted in favour of Lakshman Ram, 4 dhurs in favour of Panchu Ram and 4 dhurs in favour of Gopi Sao. Because they were allotted in front of the portion, Antu Ram was allotted 8 dhurs in the back portion of the house and since then they became separate in all respect. Antu Sao sold the aforesaid portion measuring 8 dhurs to Tara Devi by registered sale deed dated 07.08.1951. After purchase, Tara Devi came in possession in that portion of the house. Panchu Ram also sold his share measuring 4 dhurs to Bhagwan Sao Halwai by registered sale deed dated 13.08.1951 who came in possession of the same. After his death, his son Mohan Halwai came in possession and started residing in the said portion. The plaintiff purchased that portion measuring 4 dhurs from Mohan Halwai and his minor son Gauri Shankar by registered sale deed dated 06.12.1979 and he came in possession over the same. The plaintiff also purchased the area measuring 8 dhurs from Tara Devi by registered sale deed dated 06.12.1979. The plaintiff purchased that portion measuring 4 dhurs from Mohan Halwai and his minor son Gauri Shankar by registered sale deed dated 06.12.1979 and he came in possession over the same. The plaintiff also purchased the area measuring 8 dhurs from Tara Devi by registered sale deed dated 06.12.1979. Since after purchase the plaintiff came in possession and is living there with his family members. Further case of the plaintiff is that one Ram Prasad, who claims to be the son-in-law of Gauri Shankar Sao on the basis of manufactured and collusive gift deed alleged to have been executed by Gauri Shankar Sao in favour of his wife Poona Devi, is claiming the entire suit Plot No.772. Hence the suit was filed. 4. The defendant nos.1, 2, 3 and 6 filed contesting written statement alleging that Gauri Shankar Sao was the karta being the eldest son. Antu Sao abandoned the house and went to his Sasural and settled there. Panchu Sao had no issue, therefore, he also abandoned and went to Koderma long ago and he died there. Gauri Shankar Sao had a daughter, defendant no.6, namely, Poona Devi who is married to Ram Prasad Halwai (defendant no.1). The wife of Lakshman Sao predeceased him and he had no female issue, therefore, Gauri Shankar Sao kept his daughter Poona Devi and her husband as Gharjamai since the time of their marriage. Gauri Shanker Sao and Lakshman Sao being pleased with the service of Poona Devi and defendant no.1 released the suit house orally in favour of Poona Devi with consent of all other co- sharers in the year 1950. Subsequently both of them died and thereafter defendant no.1 and his wife (defendant no.6) are continuing in possession with their family members in the suit premises for the last more than four decades as such they have acquired title by adverse possession and ouster. The purchase made by the plaintiff is denied by the defendants and alleged that the purchasers i.e. Tara Devi and Bhagwan Das Halwai never came in possession of the property purchased by them. The sale deeds are malafide, not genuine and without consideration and collusive sale deeds. Antu Sao never executed any sale deed. 5. The trial court came to the conclusion that the defendants have acquired title by adverse possession. Accordingly, the plaintiff’s suit was dismissed. The plaintiff filed Title Appeal before the lower appellate court. The sale deeds are malafide, not genuine and without consideration and collusive sale deeds. Antu Sao never executed any sale deed. 5. The trial court came to the conclusion that the defendants have acquired title by adverse possession. Accordingly, the plaintiff’s suit was dismissed. The plaintiff filed Title Appeal before the lower appellate court. The lower appellate court also recording a finding that the defendants are coming in possession of the property since long and that they have perfected their title by adverse possession and ouster and accordingly, the appellate court dismissed the Title Appeal. 6. On 24.07.1992 the following two substantial questions of law were formulated at the time of admission of this Second Appeal:– (i) Whether in order to establish adverse possession of one co-heirs as against another is it enough to show that one of them is in sole possession and enjoyment of the property without making a case of ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse? (ii) Whether or not the burden of making out a case of ouster lies on the contesting defendant who claims his possession to be adverse to the plaintiff and/or his vendor? 7. The learned counsel Mr. Suraj Narain Yadav appearing on behalf of the appellant submitted that both the courts below approached the case in wrong angle and without considering the settled principles of law regarding adverse possession and ouster dismissed the plaintiff’s suit holding that the defendants have acquired title by adverse possession and ouster. According to the learned counsel, there is no case made out by the defendants that after partition of the property in the year 1951 they ousted the other co-sharers and started prescribing their title. Their only case is that Gopi Sao and Lakshman Sao released the property in their favour in the year 1950. Since then they are coming in possession of the property. Their further case is that their possession is uninterrupted and is known to everybody and, therefore, they prescribed title by adverse possession. Their only case is that Gopi Sao and Lakshman Sao released the property in their favour in the year 1950. Since then they are coming in possession of the property. Their further case is that their possession is uninterrupted and is known to everybody and, therefore, they prescribed title by adverse possession. The learned counsel for the appellant further submitted that it is settled principles of law that even if the possession of the defendants is accepted then also according to the defendants they came in possession of the property with the consent of the other co-sharers or the other co-owners, therefore, their possession will not be exclusive possession for the purpose of counting the period for prescribing title by adverse possession. According to the learned counsel, the possession of one co-sharer is possession of other co-sharer. The burden is on the defendants to prove their title by adverse possession and ouster. Mere possession for a long period will not constitute adverse possession and mere saying that they have ousted the co-sharers, the pleading cannot be accepted for the purpose of declaration of title. In support of his contention, the learned counsel relied upon A.I.R. 1957 SC 314 (P. Lakshmi Reddy Vs. L. Lakshmi Reddy) and (2007) 6 Supreme Court Cases 59 (P.T. Munichikkanna Reddy and Ors. Vs. Revamma and Ors.). On these grounds, learned counsel submitted that the substantial questions of law formulated be answered in favour of the appellant and the plaintiff’s suit be decreed after setting aside the judgments and decree of both the courts below. 8. On the contrary, the learned senior counsel Mr. Rama Kant Sharma appearing on behalf of the respondents submitted that both the courts below on the basis of evidence recorded the finding that the defendants have acquired title by adverse possession and ouster, which is pure finding of fact, therefore, the same cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. The learned counsel further submitted that the defendants specifically pleaded in their written statement that since four decades they are in possession of the property and the vendors of the plaintiff never came in possession of the property, therefore, both the courts below have rightly held that the defendants have acquired title by adverse possession and ouster. The learned counsel further submitted that the defendants specifically pleaded in their written statement that since four decades they are in possession of the property and the vendors of the plaintiff never came in possession of the property, therefore, both the courts below have rightly held that the defendants have acquired title by adverse possession and ouster. In support of the contention, the learned counsel placed the findings of both the courts below and relied upon the decision of the Hon’ble Supreme Court reported in (2006) 7 Supreme Court Case 570 (T. Anjanappa and others Vs. Somalingappa and another) and 2013 (1) P.L.J.R. 311 SC (Harish Chandra Singh Vs. Dhananjay Kumar & Ors.). 9. It is admitted fact that the property belonged to one Doman Sao who had four sons. According to the plaintiff, there had been partition between the four sons in the year 1951. The defendants denied partition between four sons but in the evidence the defendants admitted that there had been partition. The lower appellate court at paragraph 25 of the judgment has recorded a clear finding that there had been partition between the four sons in the year 1951. Thereafter the properties have been sold by co-sharer in favour of the purchasers. In the written statement the contesting defendants at paragraphs 12 and 13 pleaded that Lakshman Sao and Gopi Sao being pleased with the service of Poona Devi and Ram Prasad Halwai made a release of the house orally in favour of the daughter of Gopi Sao with consent of all the co-sharers in the year 1950. Subsequently Gopi Sao and Lakshman Sao died in the house and then defendant nos.1 and 6 with their sons and other family members came in exclusive possession of the property openly, continuously and without any objection by anybody for the last more than four decades as such they have acquired absolute right, title and interest therein by virtue of adverse possession and ouster. In view of the pleading of defendants, their case is that they came in possession on the basis of gift made by Gopi Sao and Lakshman Sao in the year 1950 and then they continued in possession of the property. In view of the pleading of defendants, their case is that they came in possession on the basis of gift made by Gopi Sao and Lakshman Sao in the year 1950 and then they continued in possession of the property. If the case of the defendants is believed then the finding of the lower appellate court that there had been partition between the four brothers in the year 1951 will mean that in spite of the possession of the defendants the property was partitioned and the co-sharers were allotted a portion of the property mentioned in detail in the plaint. 10. From perusal of the judgment of the lower appellate court, it appears that the lower appellate court at paragraph 25 of the judgment considered this aspect of the matter and held that P.W.9 in his cross-examination admitted that the defendants are in exclusive and forceful possession and the plaintiff did not adduce any convincing evidence to prove the possession of the vendors of the plaintiff from the year of purchase i.e. 1951. So even if the plaintiff had purchased through the rightful owner of the property, such right was extinguished by adverse possession of the contesting defendants. I have seen the pleading and the finding of the lower appellate court and also the trial court. 11. In the case of P. Lakshmi Reddy Vs. L. Lakshmi Reddy reported in A.I.R. 1957 SC 314, the Hon’ble Supreme Court at paragraph 4 has held that it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no step to vindicate his title. In the present case the defendants’ pleading is that they were in possession of the property because Gopi Sao had kept his daughter and son-in-law as Gharjamai and in the year 1950 they released the property in their favour. Since then they are coming in possession of the property. Admittedly as stated above, the lower appellate court has categorically recorded the finding that there was partition between the co-heirs in the year 1951. The defendants’ case is that the purchasers from Antu Sao and Panchu Sao never came in possession, therefore, the plaintiff although purchased the property from the rightful owner, the title extinguished because of the hostile possession. While recording the finding, the lower appellate court has only considered the statement of witness, P.W.9. 12. In the case of P.T. Munichikkanna Reddy and Ors. Vs. Revamma and Ors. reported in (2007) 6 Supreme Court Cases 59, the Hon’ble Supreme Court has held that the adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of typical adverse possession lie in it being open, continuous and hostile. It follows that sound qualities of typical adverse possession lie in it being open, continuous and hostile. In terms of Article 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. For constituting adverse possession there must be corpus possidendi and animus possidendi. There must be desire to dispossess and step into the shoes of the owner of the property on paper. Intention is a mental element which is proved and disproved through positive acts. The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. 13. Recently in the case of Hemaji Waghaji Jat Vs. Bikhabhai Khengarbhai Harijan and others reported in (2009) 16 Supreme Court Cases 517, the Hon’ble Supreme Court has held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. In the said decision, the Hon’ble Supreme Court has also held at paragraph 32 and 33 that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The law should not place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. In the present case, at our hand, the pleading is only to the effect that in the year 1950 the property was released by the two co-sharers in favour of the daughter and the son-in-law and since then they are continuing in possession of the property with knowledge of everyone. 14. In the case of State of Haryana Vs. Mukesh Kumar and others reported in (2011) 10 Supreme Court Cases 404 the Hon’ble Supreme Court has held that people are often astonished to learn that a trespasser may take the right of a building or land from the true owner in certain conditions and such theft is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. The mistake by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such interest. In the said decision, the Hon’ble Supreme Court Cases has also held that a person pleading adverse possession has to establish all facts necessary to establish adverse possession. No equity would arise in favour of the claimant by adverse. 15. So far the decision relied upon by the respondents is concerned, i.e. (2006) 7 Supreme Court Cases 570 it may be mentioned that in that case also the Hon’ble Supreme Court reiterated the same view as discussed above. The Hon’ble Supreme Court has held that the concept of adverse possession contemplates the 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 right but denies them. The Hon’ble Supreme Court has held that the concept of adverse possession contemplates the 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 right but denies them. 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. In my opinion, therefore, this decision is in conformity with the decision referred to above. 16. The next decision relied upon by the respondents i.e. the case of Harish Chandra Singh Vs. Dhananjay Kumar & Ors reported in 2013 (1) P.L.J.R. 311 SC is concerned, it appears that in that case admittedly the defendants were found in possession of the property in the year 1972 and the suit was filed in the year 1985 for recovery of possession, therefore, both the courts below concurrently found that the suit filed by the plaintiffs is barred by law of limitation. From perusal of the judgment, it appears that the question regarding adverse possession and ouster has not been gone into. 17. From perusal of the judgment of the courts below it appears that both the courts below swayed away on the evidence and the pleading that the defendants are coming in possession of the property since long period. As stated above, mere long possession how so long it may be unless the defendants prove that their possession was hostile to the true owner and also the intention to dispossess the true owner, the said possession cannot be termed as adverse possession. From perusal of the judgment further it appears that without considering the settled principles of law, the courts below have held that because P.W.9 has admitted that the defendants are in possession forcefully, the defendants have proved title by adverse possession and ouster. In my opinion, therefore, both the courts below approached the case in wrong angle and against the principles of law settled by the Hon’ble Supreme Court, therefore, the judgments and decree of both the courts below are unsustainable in the eye of law. Both the substantial questions of law formulated are, therefore, answered in favour of the appellant. 18. In my opinion, therefore, both the courts below approached the case in wrong angle and against the principles of law settled by the Hon’ble Supreme Court, therefore, the judgments and decree of both the courts below are unsustainable in the eye of law. Both the substantial questions of law formulated are, therefore, answered in favour of the appellant. 18. In the result, this Second Appeal is allowed and the impugned judgments and decree of both the courts below are set aside and the plaintiff’s suit is decreed. There will be no order as to costs.