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2016 DIGILAW 693 (JHR)

Jamila Khatoon v. Md. Mustafa

2016-04-23

SHREE CHANDRASHEKHAR

body2016
ORDER : Shree Chandrashekhar, J. Counsel for the respondents is absent. 2. By the order of the Hon'ble Chief Justice matters in which further proceedings in the trial court have been stayed by the orders of this Court, were notified to be listed on 22/23.04.2016. This matter has appeared on as many as 21 occasions and yesterday also at the request of the learned senior counsel for the appellants prayer for one day's accommodation was acceded. Considering the aforesaid circumstances, I am not inclined to adjourn the matter. 3. Aggrieved of the judgment of reversal dated 28.07.2007 in Title Appeal No. 02 of 2001 whereby and where under, the findings recorded by the trial court on the questions of limitation adverse possession have been set aside, the instant Second Appeal has been preferred by the defendants/legal heirs of the defendants in Title Suit No. 12 of 1997. 4. Vide order dated 15.12.2008 the Second Appeal was admitted formulating the following substantial questions of law: (1) Whether the judgment of reversal passed by the Appellate Court can be sustained in law ? (2) Whether the lower Appellate Court has correctly appreciated the law of limitation and adverse possession ? 5. Heard Mr. V. Shivnath, the learned Senior counsel for the appellants. 6. Contending that Title Suit No. 12 of 1997 was barred by limitation in as much as, the plaintiffs admitted that they were dispossessed by defendant no. 1 pursuant to order dated 31.03.1990 passed in the proceeding under Section 145 Cr.P.C. and by defendant no. 2 on or before 21.08.1987 by which proceeding under Section 144 Cr.P.C. was dropped and as such, the suit for a declaration that the order passed in proceedings under Section 145 Cr.P.C. is not binding upon the plaintiffs must fail, the learned Senior counsel submits that the period of limitation for filing such a suit is three years under Article 57 of the Limitation Act whereas, admittedly, the suit was filed beyond seven years of the order passed in the proceeding under Section 145 Cr.P.C. It is thus contended that the Lower Appellate Court seriously erred in law in reversing the finding of the trial court that the suit is barred by limitation. It is further contended that once the trial court concluded that the defendants came in possession over the suit land somewhere between 1960 and 1970 and since then they were in adverse possession of the suit properties, the Lower Appellate Court erred in law in shifting the burden of proof upon the defendants to prove that they were enjoying possession adverse to the title of the plaintiffs and thus, acquired valid right, title and interest over the suit properties by prescription. 7. The plaintiffs instituted Title Suit No. 12 of 1997 for declaration of their right and title over the suit schedule properties and for confirmation of their possession over the same. A further prayer to declare the sale-deed dated 31.12.1986 executed by defendant no.1 in favour of defendant no. 2 and the sale-deed dated 27.02.1992 executed by defendant no. 2 in favour of defendant no. 3 as illegal, null and void and inoperative and not binding upon the plaintiffs was also sought in the suit. On the basis of the pleadings of the parties the trial court framed as many as 17 issues, out of which issue no. 3 was on the issue of adverse possession and issue no. 4 was on the question of limitation. The learned trial court recorded a finding that the defendants illegally came in possession over the suit schedule property after 1961 but before 1970 and in this manner they have remained in possession for about 30 years. Since the plaintiffs did not approach the court within the limitation period, the suit was barred by limitation. The learned trial court further held that during the aforesaid period the defendants remained in adverse possession of the suit properties. The Lower Appellate Court framed the following points for consideration: (i) Whether the Plaintiffs/Appellants could acquire valid right, title and interest over the land in dispute on the basis of sale deed dated 09.05.1958 (Ext.3)? (ii) Whether the Plaintiffs/Appellants have been in possession of the lands in question since the date of acquisition ? (iii) Whether the defendants/Respondents acquired any valid right, title and interest over the disputed lands on the basis of Sada Hukumnama said to have been executed by the then Landlord ? (iv) Whether the findings of the court below that the suit of the Plaintiffs is hit by Law of Limitation as well as adverse possession are sustainable in law? (iii) Whether the defendants/Respondents acquired any valid right, title and interest over the disputed lands on the basis of Sada Hukumnama said to have been executed by the then Landlord ? (iv) Whether the findings of the court below that the suit of the Plaintiffs is hit by Law of Limitation as well as adverse possession are sustainable in law? (v) Whether the findings recorded by the court below so far as against the Plaintiffs/Appellants, are sustainable in law ? 8. On the question of adverse possession of the defendants, the Lower Appellate Court noticing that the plea of adverse possession was not specifically pleaded by the defendants and the defendants had failed to discharge the burden of proving adverse possession and, the trial court erroneously put the onus upon the plaintiffs, interfered with the findings on the question of adverse possession by the defendants. The plaintiffs pleaded that the suit property was purchased in the year, 1958 by their father namely, Md. Shafique who remained in possession till his death in the year, 1967. After the death of their father, the plaintiffs came in peaceful possession over the suit schedule property till they were dispossessed by defendant no. 1 by virtue of order dated 31.03.1990 which was passed in a proceeding under Section 145 Cr.P.C. The defendants controverting the plaint averments asserted that the disputed land was acquired by the father of defendant no. 1 namely, Md. Abdul Rajaque by virtue of two Sada Hukumnama dated 21.04.1935 and they came in possession over the suit land. After the death of Md. Abdul Rajaque, the defendant no.1 and other legal heirs and successors of the said Md. Abdul Rajaque came in possession over the suit property and they got rent receipts issued for the said land. 9. The finding recorded by the trial court that the plaintiffs acquired valid right, title and interest over the suit land by virtue of sale-deed dated 09.05.1958 was not assailed by the present appellants/defendants. The father of the plaintiffs was found in possession over the suit land and his name was mutated in the Sarista of the State, for which rent was paid and rent receipts were issued. The trial court further held that the Ex-zamindar never executed a Hukumnama in the name of Md. Abdul Rajaque, the father of defendant no. The father of the plaintiffs was found in possession over the suit land and his name was mutated in the Sarista of the State, for which rent was paid and rent receipts were issued. The trial court further held that the Ex-zamindar never executed a Hukumnama in the name of Md. Abdul Rajaque, the father of defendant no. 1 and the story propounded by the defendants based on Sada Hukumnama was found a concocted story. 10. The duty of the Appellate Court hearing the First Appeal under Section 96 C.P.C. is elaborated under Order 41, Rule 31 C.P.C. which provides that the judgment of the Appellate Court shall state: (i) the points for consideration, (ii) the decision thereon, (iii) the reasons for the decision and, (iv) where the decree appealed from it is reverse or varied, relief to which the appellant is entitled. In “Jagannath v. Arulappa and another” reported in (2005) 12 SCC 303 , while considering the scope of Section 96 C.P.C. the Hon'ble Supreme Court observed that, “A Court of First Appeal can re-appreciate the entire evidence and come to a different conclusion”. In “B.V. Nagesh and Another v. H.V. Sreenivasa Murthy” reported in (2010) 13 SCC 530 , the Hon'ble Supreme Court reiterated that, “the Appellate Court has jurisdiction to reverse or affirm the findings of the trial court”. The only requirement in law is that it must be evident from the judgment of the Appellate Court that the Court has properly appreciated the evidence and the judgment reflects conscious application of mind by the Court. 11. A perusal of the judgment dated 24.01.2001 in Title Suit No. 12 of 1997 does not disclose a date prior to 31.03.1990, from which the defendants came in possession of the suit land. It was not pleaded by the defendants that the said fact was also known to the plaintiffs. Nowhere, the defendants pleaded a date since when they allegedly started exercising their possession over the suit land, hostile to the title of the plaintiffs over the same. The Lower Appellate Court has rightly found that the defendants did not even specifically pleaded their adverse possession over the suit land rather, their whole case was built around two Sada Hukumnama, both executed on 21.04.1935 in the name of Md. Adbul Rajaque. The Lower Appellate Court has rightly found that the defendants did not even specifically pleaded their adverse possession over the suit land rather, their whole case was built around two Sada Hukumnama, both executed on 21.04.1935 in the name of Md. Adbul Rajaque. I further find that the Lower Appellate Court has rightly observed that the starting point of limitation in case of adverse possession commences from the date when the possession became adverse and from that date if a person has remained in possession over the property for a peaceful continuous period of more than twelve years, then only one can claim title by adverse possession. The Lower Appellate Court has noticed that there was no mutation order or any cogent basis for the issuance of rent receipts yet the court below has, on the basis of the rent receipts vide Exhibit-B to B/35, held that the father of the plaintiffs was forcibly dispossessed from the suit land between 1961 to 1970. It further noticed that the proceedings under Section 144 and Section 145 Cr.P.C. clearly disclose that the parties were on litigating terms. In “T. Anjanappa and others v. Somalingappa and others” reported in (2006) 7 SCC 570 the Hon'ble Supreme Court has held as under:- “20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of tile of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 12. Referring to issue no. 16 framed in Title Suit No. 12 of 1997 the learned Senior counsel contended that a suit for declaration that order dated 31.03.1990 passed in Misc. Referring to issue no. 16 framed in Title Suit No. 12 of 1997 the learned Senior counsel contended that a suit for declaration that order dated 31.03.1990 passed in Misc. Case No. 155 of 1987 was illegal, void and inoperative cannot be instituted beyond the period of three years which is the period of limitation under Article 57 of the Limitation Act whereas, the present suit was filed in the year, 1997 and thus, the suit was barred by limitation. This contention is devoid of merits. As noticed above, the main prayer in the suit was declaration of right, title and interest of the plaintiffs over the suit land and for cancellation of sale-deeds dated 31.12.1986 and 27.02.1992 executed by defendant no.1 and defendant no.2 and even if issue no. 16 is decided against the plaintiffs, it would have been no material bearing on the question of limitation. 13. In the result, the substantial questions of law are answered thus; (i) the judgment of reversal dated 28.07.2007 in Title Appeal No. 02 of 2001 sustains the scrutiny in law, and (ii) the Lower Appellate Court has correctly appreciated the issue on limitation and adverse possession. 14. The instant Second appeal is accordingly, dismissed. Appeal dismissed.