====================================================== Hemlata Devi v. Sita Ram Rai & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.590 of 2010 ====================================================== Hemlata Devi .... .... Appellant/s Versus Sita Ram Rai & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Kamal Kishore Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 5 04-07-2013 1. Heard the learned counsel, Mr. Pankaj Kumar Sinha appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff-appellant-appellant has filed this second appeal against the Judgment and Decree dated 09.07.2010 passed by the learned Addl. District Judge, Fast Track Court No.IV Banka in Title Appeal No.38 of 2004 whereby the lower appellate Court
Legal Reasoning
dismissed the appeal and confirmed the Judgment and Decree of the trial Court dated 30.04.2004 passed by the learned Munsif in Title Suit No.33 of 1995. 3. The plaintiffs filed the aforesaid suit praying for permanent injunction restraining the defendants respondent from interfering with peaceful possession of the plaintiff. The plaintiff claimed the aforesaid relief alleging that she had purchased 12 acres and odd land from the ex.landlord Panchanand on 24.10.1967 by registered sale deed No.12418. The vendor Panchanand put her in possession of the purchased land of plot 2 Patna High Court SA No.590 of 2010 (5) dt.04-07-2013 2 / 5 No.766 and also put her in possession over 28 decimal of plot No.765 and since then the plaintiff is coming in peaceful possession over the suit land as such has prescribed title by adverse possession but the defendants are trying to disposses. 4. The defendants filed the contesting written statement alleging that in fact the suit land was settled with the defendants and others by Hukumnama on 20.05.1941 and subsequently a registered Kabuliyat was executed on 5.6.1941 and since then they are coming in possession of the property. According to the defendants, the plaintiff is not in possession. 5. The trial Court dismissed the plaintiff’s suit finding that she is not entitled for permanent injunction because she has failed to prove her possession. On appeal, the lower appellate Court also held that the plaintiff is trying to obtain a declaration of title in the garb of injunction and dismissed the appeal. 6. The learned counsel for the appellant submitted that no issue with regard to adverse possession was framed. According to the plaintiff, she purchased the lands measuring 12 acres and odd land of plot No.766 and the owner, i.e., vendor of the plaintiff put her in possession of present suit land, i.e., 28 decimal comprised within plot No.765. The defendants filed the Hukumnama, ext.‘A’ and Kabuliyat, ext.‘B’ but the lower appellate Court has not relied upon the said findings. At the time of hearing of the appeal, the appellant filed application under Order 41 Rule 27 C.P.C. and prayed for permitting the appellant to adduce additional evidence and the survey khatiyan and Pleader Commissioner report were 3 Patna High Court SA No.590 of 2010 (5) dt.04-07-2013 3 / 5 filed but the lower appellate Court did not allow the same. According to the learned counsel, the documents produced by the defendant, i.e., ext. ‘A’, which is dated 20.05.1941 is not registered document and the Kabuliyat, i.e, dated 4.6.1941 is only registered but since the lower appellate Court has not relied on the said documents, suit should have been decreed. 7. It is admitted fact that the plaintiff is claiming possession through one Panchanand. According to her, she came in possession of the property on the permission of Panchanand and she has acquired title by adverse possession. Her possession was found and she has been recorded in the khatiyan. The defendants are also claiming settlement through Panchanand. Now, therefore, there is no dispute between the parties that Panchanand was the owner of the property. On the contrary, both the parties are claiming title and possession through Panchanand. It may be mentioned here that the plaintiff has not filed the suit either for possessory title or title with recovery of possession. She has filed this suit only for permanent injunction praying for restraining the defendants from interfering with peaceful possession of the plaintiff. The plaintiff is not praying for declaration of her title. It is settled law that a party who claims adverse possession has no equities in his favour. Here the pleading of the plaintiff itself is that she came in possession with the permission of her vendor, Panchanand. Now, therefore, the question will be whether the permissive possession will became adverse possession and whether she will acquire title. It is settled law that a person who claims adverse possession must show that his possession is 4 Patna High Court SA No.590 of 2010 (5) dt.04-07-2013 4 / 5 adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is not the case of the plaintiff herself that she was denying the title of the true owner rather her claim is that she came in permissive possession and she is recorded as such. From perusal of the lower Court Judgment, it appears that lower appellate Court considering the evidences and materials available on record found that her possession is not continues and, therefore, there is no question of adverse possession arises. 8. The learned counsel for the appellant submitted that even the plaintiff did not know who was the true owner. Now, if this submission is accepted, then there is no question of prescribing title by adverse possession arises because in the case of Karnataka Board of Wakf Vs. Govt. of India 2004 (3) P.L.J.R. 245 SC, the Hon’ble Supreme Court held that a person who claims adverse possession should show : (i) (ii) (iii) (iv) (v) On which date he came into possession, What was the nature of his possession, Whether the factum of possession was known to the other party, How long his possession has continued, and His possession was open and undisturbed and that a person pleading adverse possession has no equities in his favour. 9. Here as stated above only simple pleading is that the plaintiff was put in possession by Panchanand, in my opinion, therefore, only on this pleading or evidence, the title of the plaintiff cannot be declared on the basis of adverse possession. 5 Patna High Court SA No.590 of 2010 (5) dt.04-07-2013 5 / 5 10. Recently in the case of State of Haryana Vs. Mukesh Kumar and Ors 2011 (10) S.C.C. 404 the Hon’ble Supreme Court has held that people are often astonished to learn that a trespasser may take the title 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. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest. 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 adverse possession. 11. In the present case as stated above, mere pleading is that the plaintiff is in possession of the property. The lower appellate Court has found that the person who had recorded in the record of right, i.e., Triloki Manjhi for his heirs have not been made party in the present suit. In such circumstances, it appears that the plaintiff has no prima facie case at all. Therefore, in second appellate jurisdiction, the finding of the Courts below cannot be interfered with. Accordingly, in my opinion, no substantial question of law is involved in this second appeal. Thus, this second appeal is dismissed at the stage of admission itself. Sanjeev/- (Mungeshwar Sahoo, J)