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2020 DIGILAW 798 (ALL)

Vidya Shanker v. Suresh Chandra

2020-04-22

SUDHIR AGARWAL

body2020
JUDGMENT : 1. Heard Sri Neeraj Kushwaha, learned counsel for appellant. None has appeared on behalf of respondent, though called twice. Since it is an old appeal of 1981 and is pending for the last 38 years and find no reason but to proceed ex parte to decide it and proceed accordingly. 2. This is a defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), arising from judgment and decree dated 18.03.1981 passed by Sri Jai Prakash Narayan, Civil Judge, Etawah allowing Civil Appeal No. 118 of 1977. Lower Appellate Court (hereinafter referred to as “LAC”) has set aside judgment and decree dated 11.04.1977 passed by Sri Ravi Narayan, IInd Additional Munsif/Judicial Magistrate, Etawah in Original Suit No.399 of 1973 (hereinafter referred to as “O.S.”) . Plaintiff's suit was dismissed by Trial Court but appeal has been allowed. Hence this appeal by defendant. 3. Suit for delivery of possession of the house in dispute and damages for use of it and pendente lite was instituted by plaintiff-Suresh Chandra against sole defendant-Vidya Shankar alias Daroga. Plaint case, set up by plaintiff, is that house in dispute belong to one Shamsher Khan, who executed a sale deed dated 29.06.1968 registered on 03.08.1968 in favour of plaintiff and thereafter he got possession thereof. The said house was purchased by Shamsher Khan from its erstwhile owner Ram Gopal through a sale deed and at that time defendant was a tenant in the northern part of house, on monthly rent of Rs.5/-which was a month to month tenancy. Defendant was paying rent initially to Ram Gopal and thereafter to Shamsher Khan. After execution of sale deed and purchasing the house, plaintiff informed the above transaction to defendant and asked him to pay rent. In October 1968 when plaintiff went to the house for renovation/construction of rest part of the house which was not in tenancy, defendant raised dispute and also did not pay any rent. Consequently, by notice dated 14.12.1968 which was served upon him on 17.12.1968 his tenancy was terminated. Defendant replied the notice wherein even title of plaintiff was denied. Plaintiff filed suit in Small Cause Court but defendant raised dispute of title, hence plaint was returned and suit then was filed in a regular Court. Plaintiff claimed arrears of rent of Rs. Consequently, by notice dated 14.12.1968 which was served upon him on 17.12.1968 his tenancy was terminated. Defendant replied the notice wherein even title of plaintiff was denied. Plaintiff filed suit in Small Cause Court but defendant raised dispute of title, hence plaint was returned and suit then was filed in a regular Court. Plaintiff claimed arrears of rent of Rs. 244/-for the period from 01.07.1968 to 25.07.1973 and pendente lite damages and delivery of possession of house in question. 4. Defendant disputed the claim. He said that he was never a tenant of the house even at the time of Ram Gopal. He was himself owner in possession, hence Ram Gopal had no authority to sell out suit property to anybody. Defendant in the additional pleas stated that the house in question initially belonged to his ancestor Lala Ram Sahai, who had purchased it vide sale deed dated 24.06.1862 from Beni Ram. After death of Lala Ram Sahai his sons Jwala Prasad, Gauri Shankar and Kali Sunder became onwers and in their mutual partition, house in question came to the share of Gauri Shankar. After death of Gauri Shankar, house in dispute is scucceeded by his sons Shiv Shankar Lal, Rama Shankar and vidya Shankar (i.e. plaintiff) and Laxmi Shankar. The middle part of house was in ruinous condition and repaired and reconstructed by defendant incurring his own expenses. No person in the name of Ram Gopal and Shamsher Khan were ever owners and resided in the house. In the alternative, it was also pleaded that in any case, the house in question, for the last more than 100 years, is in possession of defendants and his ancestors, openly and hostile, to the knowledge of erstwhile owner. Ram Gopal, if any, and others, therefore, their title has extinguished and defendant has become owner by way of adverse posssession. 5. The Trial Court formulated following issues: 1. Whether the plaintiff is the owner of the house in suit? 2. Whether the plaintiff is entitled for the damages as claimed? If so its effect? 3. Whether the suit is barred by time? 4. Whether the suit is barred by principles of waiver estoppel and acquiescence? 5. Whether the suit is barred by adverse possession? 6. Whether the suit is bad for non-joinder of parties? 7. Whether the suit is under valued and Court fee paid is insufficient? 8. If so its effect? 3. Whether the suit is barred by time? 4. Whether the suit is barred by principles of waiver estoppel and acquiescence? 5. Whether the suit is barred by adverse possession? 6. Whether the suit is bad for non-joinder of parties? 7. Whether the suit is under valued and Court fee paid is insufficient? 8. To what relief’s, if any, to the plaintiff entitled? 6. Issues-1 and 2 were answered against plaintiff and sale deed was declared fictitious. Issues-3 and 5 were answered in favour of defendant and Trial Court held that suit was barred by limitation and defendant has perfected title by way of adverse possession. Issues-4 was also answered against plaintiff. Issue-6 was answered in negative. Issues-6 and 7 were decided as preliminary issues in negative. Issue-8 was answered by dismissing the suit. 7. In the appeal, LAC formulated only single point for determination, i.e. “Whether house in question belong to Ram Gopal and at any point of time thereafter plaintiff became owner by virtue of sale deed or it was owned by defendant-Vidya Shankar?” 8. Aforesaid point for determination is answered in favour of plaintiff and appeal has been allowed by LAC and has set aside the judgment passed by Trial Court and decreed suit granting relief as prayed for. 9. This appeal was admitted on a single substantial question of law i.e. ground no.3 which reads as under: “Because the appellant had produced and proved the sale-deed dated 24.06.1862 executed in favour of Sri Ram Sahai the grand father of the appellant in respect of the disputed house and it was never pleaded or proved by the respondent that Sri Ram Sahai or his decendants ever transferred their interest or possession since 1862.” 10. It is not in dispute that plaintiff-respondent placed on record sale deed dated 29.06.1968 i.e. Exhibit-9 wherein it was referred that Ram Gopal has taken a debt on 12.08.1958 of Rs. 350/-from Dr. Prithvi Nath Gupta and executed a mortgage deed, which he could not satisfy and aforesaid mortgage deed was transferred by Dr. Prithvi Nath Gupta to Sri Vansh Gopal for Rs. 500/-and since there was never any redemption of mortgage, Vansh Gopal executed a sale deed in favour of Ram Gopal. 350/-from Dr. Prithvi Nath Gupta and executed a mortgage deed, which he could not satisfy and aforesaid mortgage deed was transferred by Dr. Prithvi Nath Gupta to Sri Vansh Gopal for Rs. 500/-and since there was never any redemption of mortgage, Vansh Gopal executed a sale deed in favour of Ram Gopal. LAC has also examined record of Municipal Assessment Notice from 1951 to 1955 which showed that house in dispute was in the name of Kalloo father of Ram Gopal, and hence they were owners of house in question in 1955. 11. I repeatedly enquired from learned counsel for appellant as to in what manner he proved his title deed dated 24.06.1862 but despite repeated query, he could give no reply whatsoever. 12. Moreover, when questioned, learned counsel for appellant could not dispute that defendant-appellant had taken contradictory stand, inasmuch as, on the one hand he had claimed to be the owner of property in dispute and on the other hand he claimed that his title has been perfected by adverse possession. Trial Court had accepted aforesaid plea ignoring the settled principle of law that plea of adverse possession is not available when contradictory pleas are taken. One cannot claim to be the owner and simultaneously that his title was protected by way of adverse possession. 13. A person other than owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallise in ownership after the expiry of the prescribed period or limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law. 'Permissible possession' shall not mature a title since it cannot be treated to be an 'adverse possession'. Such possession, for however length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession. 14. The law in respect of adverse possession is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23 , page 25). This decision has been referred and followed in P. Lakshmi Reddy Vs. 14. The law in respect of adverse possession is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23 , page 25). This decision has been referred and followed in P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [Radhamoni Debi Vs. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. 15. In Thakur Kishan Singh Vs. Arvind Kumar, AIR 1995 SC 73 the Court said: “A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.” 16. In Saroop Singh Vs. Banto and others, 2005(8) SCC 330 the Court held in para 30: “30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . . .” 17. In T. Anjanappa and others Vs. Somalingappa and another 2006 (7) SCC 570 the pre-conditions for taking plea of adverse possession has been summarised as under: “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 title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese 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.” 18. 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.” 18. In P.T. Munichikkanna Reddy & Ors. Vs. Revamma & Ors. AIR 2007 SC 1753 it was held: "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 a typical adverse possession lie in it being open, continuous and hostile." (Para 5) "Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title."(Para 6) "Therefore, to assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property" (Para 9) 19. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property" (Para 9) 19. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), Court held that if the defendants are not sure who is the true owner, the question of their being in hostile possession and the question of denying title of the true owner do not arise. It also referred on this aspect its earlier decision in Des Raj and others vs. Bhagat Ram(Dead) by LRs. And others 2007(3) SCALE 371 and Govindammal v. R. Perumal Chettiar and others JT 2006(1) SC 121. 20. In Annakili Vs. A. Vedanayagam and others, AIR 2008 SC 346 the Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi is held to be a requisite ingredient of adverse possession well known in law. The Court held: “It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.” 21. Pleadings are ncessary if case is founded on adverse possession. Court has considered in detail the various authorities on the question of adverse possession in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Others AIR 2009 SC 103 and in para 18 observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Court has considered in detail the various authorities on the question of adverse possession in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Others AIR 2009 SC 103 and in para 18 observed that 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. 22. The Court also referred to its earlier decision in D.N. Venkatarayappa & Anr. Vs. State of Karnataka & Ors. 1997 (7) SCC 567 observing : “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.” 23. In D.N. Venkatarayappa (Supra), Court emphasized the importance of pleading as also the pre requisites of plea of adverse possession and said : “3. ...What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.” “... The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.” “... ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” “apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession.” “A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession." “... one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner.” “...there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question.” “But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant." “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession” “...person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period.” “5. ... in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellants' possession would become adverse. There is no material to that effect in the present case. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants." 24. The pleading must be specific to the date when possession become adverse. In Ram Charan Das Vs. Naurangi Lal & Ors. AIR 1933 Privy Council 75, property of a Mutt was alienated by Mahant by executing a Mukararri (permanent lease) in favour of one Munshi Naurangi Lal. Sale deed of the land in dispute was also executed to another one and both the documents contain a stipulation that they were executed to meet expenses and necessities of Mutt. After death of Mahant, a suit was filed by successor in office against the lessee and purchaser etc. claiming possession of property in dispute to Mutt. The defendants besides others, took the plea of adverse possession also. After death of Mahant, a suit was filed by successor in office against the lessee and purchaser etc. claiming possession of property in dispute to Mutt. The defendants besides others, took the plea of adverse possession also. The question was, did possession of the concerned defendant became adverse to Mutt or Mahant representing the Mutt on the date of relevant assurance or date of death of the concerned Mahant. Trial Court held latter date to be correct while High Court took a contrary view and upheld the former date. Privy Council held: "In other words a mahant has power (apart from any question of necessity) to create an interest in property appertaining to the Mutt which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the mutt, with the result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by death or otherwise. If this be right as it must be taken to be, where the disposition by the mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property nor was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the property of the mutt." (emphasis added) 25. The pleading is necessary since burden also lies on the person who claims adverse possession. In Smt. Bitola Kuer Vs. Sri Ram Charan & Ors. AIR 1978 All 555 in para 16 the Court said: “It is well settled that title ordinarily carries with it the presumption of possession and that when the question arises is to who was in possession of land, the presumption is that the true owner was in such possession. In other word” possession follows title. The inevitable Corollary from this principle is that the burden lies on the person who claims to have acquired title by adverse possession to prove his case.” 26. In other word” possession follows title. The inevitable Corollary from this principle is that the burden lies on the person who claims to have acquired title by adverse possession to prove his case.” 26. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1 SCC 271 with reference to a case dealing with such an issue amongst co-sharers it was observed that “Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. 27. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. 28. In L.N. Aswathama & another Vs. V.P. Prakash JT 2009 (9) 527 the Court, in para 17 and 18 said: “17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” “18. ...When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. ...When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected.” 29. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy the requirement of adverse possession, the person claiming it, must prove as to how and when the adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del. 19 ). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266 , it was stressed upon by the Apex Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. [See Mahesh Chand Sharma (supra)]. 30. In Parsinnin Vs. Sukhi (1993) 4 SCC 375 , it said that burden of proof lies on the party who claims adverse possession. He has to plead and prove that his possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous. 31. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla Vs. Sabitri Bera & others JT 2009 (10) SC 538. 32. In Gautam Sarup Vs. 31. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla Vs. Sabitri Bera & others JT 2009 (10) SC 538. 32. In Gautam Sarup Vs. Leela Jetly & others (2008) 7 SCC 85 , the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other. 33. In Ejas Ali Qidwai & Ors. Vs. Special Manager, Court of Wards, Balrampur Estate & Ors. AIR 1935 Privy Council 53 certain interesting questions cropped up which also attracted certain consequences flowing from annexation of province of Oudh in 1857 by the British Government. It appears that one Asghar Ali and his cousin Muzaffar Ali granted a mortgage by conditional sale of the entire estate of Ambhapur (commonly known as the Taluka of Gandara) and certain villages to the then Maharaja of Balrampur. The mortgaged property situated in District Bahraich, which was in the Province of Oudh. The mortgagee brought an action to enforce his right, got a decree in his favour and ultimately possession of the property in 1922. The sons of Asghar Ali thereafter brought an action in civil court for recovery of their share of the mortgaged property on the ground that it was the absolute property of their father and on his death devolved on all the persons who were his heirs under the Mahomedan Law. They challenged Iqbal Ali's right to mortgage the whole of estate and impeached the mortgaged transaction on various grounds. The claim was resisted on the ground that succession to the estate was governed by the rule of primogeniture according to which the whole of the estate descended first to Asghar Ali and after his death to his eldest son Iqbal Ali. The defence having been upheld the claim was negatived by the trial court as well as the court of appeal. Before the Privy Council the only question raised was whether the succession to the property was regulated by the rule of primogeniture or by Mahomedan Law. 34. The defence having been upheld the claim was negatived by the trial court as well as the court of appeal. Before the Privy Council the only question raised was whether the succession to the property was regulated by the rule of primogeniture or by Mahomedan Law. 34. The Privy Council while considering the above question observed that the Province of Oudh was annexed by the East India Company in 1856 but in 1857 during the first war of independence by native Indians much of its part was declared independent. Soon after it was conquered by the British Government and it got reoccupation of the entire province of Oudh. Thereafter in March 1858 the British Government issued a proclamation confiscating, with certain exceptions "the proprietary right in the soil of the Province" and reserved to itself the power to dispose of that right in such manner as to it may seem fit. On 10th October 1859 the British Government (the then Government of India) declared that every talukdar with whom a summary settlement has been made since the reoccupation of the Province has thereby acquired a permanent, hereditary and transferable proprietary right, namely in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka. Pursuant to that declaration, Wazir Ali with whom a summary settlement of Taluka has already been made was granted a Sanad which conferred upon him full proprietary right, title and possession of the estate or Ambhapur. In the said grant, there contained a stipulation that in the event of dying intestate or anyone of his successor dies intestate, the estate shall descend to the nearest male heir according to rule of primogeniture. Subsequently, in order to avoid any further doubt in the matter, Oudh Estates Act I of 1869 was enacted wherein Wazir Ali was shown as a Tallukdar whose estate according to the custom of the family on or before 13.2.1856 ordinarily devolved upon a single heir. However, having noticed this state of affairs, the Privy Council further observed that this rule was not followed after the death of Wazir Ali and the Taluka was mutated in favour of his cousin Nawazish Ali. He was recorded as owner of Taluka. However, having noticed this state of affairs, the Privy Council further observed that this rule was not followed after the death of Wazir Ali and the Taluka was mutated in favour of his cousin Nawazish Ali. He was recorded as owner of Taluka. Thereafter in 1892 Samsam Ali entered the joint possession with Nawazish Ali and after death of Nawazish Ali, Samsam Ali was recorded as the sole owner. The system of devolution of the property was explained being in accordance with the usage of the family and when the name of Asghar Ali was recorded, he also made a similar declaration. Faced with the situation the appellant sought to explain the possession of Nawazish Ali as adverse possession but the same was discarded by the Privy Council observing: "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 a denial of his title to the property claimed." 35. In S.M. Karim Vs. Mst. Bibi Sakina AIR 1964 SC 1254 , Court has held that the alternative claim must be clearly made and proved, adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point on limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "a possible title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and prayer clause is not a substitute for a plea. Relevant paras 3 to 5 of the said judgment read as follows: "3. In this appeal, it has been stressed by the appellant that the findings clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because S. 66 of the Code of Civil Procedure bars it. In this appeal, it has been stressed by the appellant that the findings clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because S. 66 of the Code of Civil Procedure bars it. That section provides that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the section and the defendants were protected by it." "4. It is contended that the case falls within the second subsection under which a suit is possible at the instance of a third person who wishes to proceed against the property, though ostensibly sold to the certified purchaser, on tie ground that it is liable to satisfy a claim of such third person against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as a claim by the transferee against the real owner. The words of the second subsection refer to the claim of creditors and not to the claims of transferees. The latter are dealt with in first sub-section, and if the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the law would be defeated by the real purchaser making a transfer to another and the first sub-section would become almost a dead letter. In our opinion, such a construction cannot be accepted and the plaintiff's suit must be held to be barred under S. 66 of the Code." "5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. In our opinion, such a construction cannot be accepted and the plaintiff's suit must be held to be barred under S. 66 of the Code." "5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan Singh and others v. Ram Basi Kuer and others, AIR 1957 Pat 157 to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and amere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, A.I.R. 1940 P.C. 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea." 36. In B. Leelavathi Vs. Honnamma and another, (2005) 11 SCC 115 , Court has held that the adverse possession is a question of fact which has to be specifically pleaded and proved and in the absence of any plea of adverse possession, framing of an issue and adducing evidence it would not be held that the plaintiffs had perfected towards the title by way of adverse possession. Para 11 of the judgment read as follows: "11. Plea of adverse possession had been taken vaguely in the plaint. No categorical stand on this point was taken in the plaint. No issue had been framed and seemingly the same was not insisted upon by the plaintiff-respondent. Adverse possession is a question of fact which has to be specifically pleaded and proved. No evidence was adduced by the plaintiff-respondent with regard to adverse possession. Honnamma, the plaintiff in her own statement did not say that she is in adverse possession of the suit property. We fail to understand as to how the High Court, in the absence of any plea of adverse possession, framing of an issue and evidence led on the point, could hold that the plaintiff-respondent had perfected her title by way of adverse possession." 37. In A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. In A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. Relevant para 5 of the judgment reads as follows: "5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissible possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs." 38. In Goswami Shri Mahalaxmi Vahuji Vs. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025 , Court held that a party cannot be allowed to set up a case wholly inconsistent with that pleaded in its written statement. 39. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs." 38. In Goswami Shri Mahalaxmi Vahuji Vs. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025 , Court held that a party cannot be allowed to set up a case wholly inconsistent with that pleaded in its written statement. 39. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever the plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute. 40. In P. Periasami Vs. P.Periathambi & Ors., 1995 (6) SCC 523 it was said: “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” 41. In Mohan Lal v. Mirza Abdul Gaffar (1996) 1SCC 639, the Court said” "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario.” 42. In Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779 , Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said: “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” 43. The decision in Mohal Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, Court said: “As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The decision in Mohal Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, Court said: “As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable.” 44. It would be useful to refer certain observations of a Single Judge of this Court in Abdul Halim Khan Vs. Raja Saadat Ali Khan and others, AIR 1928 Oudh 155, which, in my view, squarely applies to the facts and pleadings of this case and I am in respectful agreement therewith: “One of the general principles governing the law of limitation is that a person can only be considered to be barred, if he has a right to enter and does not exercise that right within the period fixed by the Limitation Act. The maxim of law is contra non valentem agree nulla currit praescriptio (prescription does not run against a party who is unable to act); vide Broom's Legal Maxims, 9th edn., p. 576. Accordingly possession cannot become adverse against a person as long as he is not entitled to claim immediate possession. Ex facie it must follow that a person who is not in existence cannot be considered to be in a position to claim whether immediate or otherwise. It is evident that in the eyes of the law the plaintiff did not come into existence as long as he was not adopted. His adoption took place on 27th July 1914. He must be deemed to have come into existence only then. It was, therefore, obviously not possible for him to claim possession of the property before that date, and if he was not in a position to claim it at all, having not been then in existence, it would be absurd to say that another person was in possession adversely to him. One might fairly ask: “Adverse against whom?” It certainly cannot be adverse against the plaintiff, who was not then in existence. One might fairly ask: “Adverse against whom?” It certainly cannot be adverse against the plaintiff, who was not then in existence. It may have been adverse against any other person, but we are not concerned with such person unless the plaintiff can be shown to have derived his title from such person.” (page189-190) 45. Recently, in Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395, Court, with respect to a claim of title, based on the pleading of adverse possession, said as under: "for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession." 46. What should have been pleaded and what a person claiming adverse possession has to show, has been laid down by the Apex Court categorically in Karnataka Board of Wakf (supra): “11. 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 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. ..... Physical fact of exclusive possession and the animus posdendi 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. ..... Physical fact of exclusive possession and the animus posdendi 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 47. Earlier also, a three-Judges Bench of Apex Court in Parsinni & another Vs. Sukhi (supra) laid down the following three requisites for satisfying the claim based on adverse possession: "5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. .... Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be "nee vi nee clam nee precario" i.e. 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." 48. In the present case appellant clearly pleaded its own title. He pleaded that none else was owner. That being so the plea of adverse possession was impermissible in this case. Trial Court failed to examine the legal aspect and exposition of law, hence LAC has rightly reversed the judgment. 49. In absence of anything to show before this Court that appellant in any manner adduced any evidence to prove his title, while plaintiff's title was clearly shown, I have no option but to answer the above substantial question of law against him. 50. Appeal lacks merit and dismissed accordingly. Costs throughout.