Dr. Radha Mohan Prasad Sinha v. Bishundeo Sah & Ors.

The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 12.04.2010 passed by the 1st Additional District Judge, Munger in M.T.A. No.35 of 2005 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 15.07.2005 passed by Munsif 1st, Munger in Title Suit No.42 of 1995/16 of 2005. The plaintiff-appellant, Dr. Radha Mohan Prasad Sinha filed the aforesaid title suit for declaration of his title on the suit property alleging that he has acquired title by adverse possession. According to the plaintiff, the defendant entered into agreement to sell the suit property. When the defendant did not execute the sale deed, the plaintiff filed Title Suit No.79 of 1971 against the Patna High Court SA No.333 of 2010 (5) dt.25-07-2013 2 defendants for specific performance of contract. The said suit was decreed and the defendants were directed to execute the sale deed with respect to the suit property. When the defendant did not execute the sale deed, the plaintiff filed Execution Case No.33 of 1979 wherein also, the defendant did not appear. Therefore, the Executing Court executed and registered the sale deed with respect to the suit property in favour of the plaintiff. After execution of the sale deed by the court because of intervention of the well wishers between the parties, the defendant handed over the possession of the property, therefore, the plaintiff left pairvi in the execution case. Accordingly, the plaintiff is in possession of the property since then as such, he acquired title by adverse possession. The defendant-respondent filed contesting written statement. According to them, against the judgment of the trial court, they filed title appeal before the Lower Appellate Court which was allowed and the judgment and decree of the trial court granting decree for specific performance of contract was set aside. Against the appellate judgment, the present plaintiff filed Second Appeal before the High Court and the Second Appeal was also dismissed. The allegation of the plaintiff that because of intervention of the well wishers, the possession of the property Patna High Court SA No.333 of 2010 (5) dt.25-07-2013 3 was delivered by the defendant in favour of the plaintiff was denied and it is alleged that the defendants are continuing in possession of the property. The trial court recorded the finding that the judgment and decree on the basis of which the sale deed has been executed by the Executing Court has already been set aside and, therefore, there is no question of acquisition of title to the plaintiff arises. So far adverse possession is concerned, the trial court held that the plaintiff failed to prove his possession what to speak of adverse possession. Accordingly, the trial court dismissed the plaintiff’s suit. On appeal, the Lower Appellate Court dismissed the appeal upholding the finding of the trial court. The learned counsel, Mr. R.C.Sinha appearing on behalf of the appellant submitted that the courts below have wrongly held that the plaintiff has not acquired title by adverse possession because admittedly, the sale deed was executed by the Executing Court in the year 1979 and, therefore, from the date of the execution of the deed and from delivering possession by the defendant to the plaintiff, the possession of the plaintiff will be adverse and, therefore, both the courts below have wrongly dismissed the plaintiff’s suit. Except this question, no other point has been raised. Patna High Court SA No.333 of 2010 (5) dt.25-07-2013 4 So far this question is concerned, according to the plaintiff, he has acquired title by adverse possession. It may be mentioned here that admittedly, no evidence has been adduced by the plaintiff in support of the case of delivery of possession of the suit property by the defendant in favour of the plaintiff. The judgment and decree of the trial court has already been set aside. This fact is not disputed. Both the courts below on the basis of the materials oral as well as documentary held that the plaintiff failed to prove acquisition of title by adverse possession. Both the courts below held that the plaintiff is not in possession of the property. So far this finding regarding possession is concerned, it is pure finding of fact. So far adverse possession is concerned, when there is no possession, there is no question of adverse possession arises. Moreover, the plaintiff himself is claiming title on the ground that the sale deed has been executed pursuant to the decree passed in suit filed by the plaintiff for specific performance of contract. In such circumstances, the claim of title on the basis of registered sale deed and claim of title on the basis of adverse possession are mutually inconsistent. The latter will not come into operation unless the former is renounced vide the decision of the Hon’ble Supreme Court in the case of Karnataka Board of Wakf vs. Government of India & Ors., 2004(3) PLJR 245 Supreme Patna High Court SA No.333 of 2010 (5) dt.25-07-2013 5 Court. In the case of P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 Supreme Court Cases 59, the Hon’ble Supreme Court has held that mere possession will never constitute adverse possession. For constituting adverse possession, there must not only be intention to possess the property but there must also be intention to dispossess the real owner. Recently, in the case of State of Haryana vs. Mukesh Kumar and others, (2011) 10 Supreme Court Cases 404, the Hon’ble Supreme Court examining all the earlier cases regarding adverse possession 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 authorised by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Mistakes by landowners or negligence on their part would never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest.” Admittedly, in this case, even if it is held that the plaintiff is in possession of the property then also his mere possession will never constitute adverse possession. His possession will be a possession of a trespasser and he cannot be allowed to continue his illegal possession over the property. However, both the courts below Patna High Court SA No.333 of 2010 (5) dt.25-07-2013 6 have recorded the finding that he is not in possession of the property. In view of the above settled proposition of law, in my opinion, the point raised by the learned counsel for the appellant is not at all the substantial question of law. Accordingly, no substantial question of law is involved in this Second Appeal. Thus, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-