Ms. Alka Sarin v. MAHESH GROVER

learned Trial Court was reversed and the suit of the plaintiffs for permanent injunction & in the alternative for possession, was dismissed. Nawe Singh plaintiff No.1 and his mother Lakshmi Bai were in possession of the suit property, which is an area of 1 kanal and 6 marlas. The defendants, who are the respondents herein, are their relations. A suit for permanent injunction was filed by Nawe Singh plaintiff No.1/appellant and his mother Lakshmi Bai seeking to restrain the respondents from interfering in their possession. In that R.S.A. No.929 of 1984 (O&M) -2- suit, alternatively a plea was made for granting a decree for possession in the eventuality of the respondents succeeding to get the possession during the pendency of the suit. The respondents, who contested the suit, set up an oral sale in their favour. On the pleadings of the parties, the following issues were framed:-

1. Whether the plaintiffs are owners in possession of the land in question?OPP.

2. Whether the suit is not maintainable in the present form?OPD.

3. Whether the suit is bad for the misjoinder and non- joinder of the parties?OPD.

4. Whether the plaintiffs are estopped by their acts and conduct from filing the suit?

5. Relief.” Both the parties led their evidence and the learned Trial Court after examining the same, decreed the suit for possession and the appeal followed. During the pendency of the appeal, an application for amendment of the pleadings, was moved by the respondents to invoke a plea of adverse possession. The application was accepted and the matter was remanded back to the learned Trial Court for decision afresh by taking into consideration the newly added plea of adverse possession. The following two additional issues were also framed:-

1. Whether the suit is barred by time?OPD. R.S.A. No.929 of 1984 (O&M) -3-

2. Whether defendants No.5 to 15 have become owners of the land in suit by way of adverse possession?OPD. The Trial Court, thereafter, went through the matter afresh and concluded that the plea of adverse possession was not made out in favour of the respondents and while returning such a finding based its reasoning on the premise that the land was vacant, which was reflected from the revenue records and in principle vacant plot of land carries the presumption of the ownership in favour of the appellant. The plea of oral sale was disbelieved. The suit of the plaintiffs was, accordingly, decreed once again for possession. In appeal, the findings were reversed and the first appellate Court vide its findings held that the respondents have become owners by way of adverse possession and the suit of the plaintiffs was dismissed. In the instant Regular Second Appeal, while questioning the findings recorded by the first Appellate Court, learned counsel for the appellant has contended that the mere length of possession could not confer any right upon the respondents to claim the possession, which was adverse, to the appellant. She further contended that the respondents had set up a plea of ownership by way of oral sale and thereafter, by way of an amendment had set up a plea of adverse possession and these two pleas are mutually destructive and could not have been raised together. Reliance was placed upon the judgment passed by the Hon'ble Supreme Court in Karnataka Board of Wakf Vs. Government of India and others, 2004 R.S.A. No.929 of 1984 (O&M) -4- (5) Supreme 476. On the other hand, learned counsel for the respondents contended that they had constructed a house on the disputed property and had been in possession for the last many years to the knowledge of the appellant. Consequently, the findings recorded by the first appellate Court cannot be termed to be erroneous. I have heard learned counsel for the parties and have perused the impugned judgment, as also the records of the case. There is no denial to the facts except to the extent that the appellant pleads his ownership, whereas the respondents dispute the same. If the pleadings are to be seen then it shows that the respondents had set up a plea of oral sale in their favour, which categorically amounts to setting up a plea of ownership, but subsequently by way of an amendment, they chose to set up a plea of adverse possession and if these pleas are to be seen then they are both mutually destructive of each other and cannot co-exist. In Karnataka Board of Wakf 's case (supra) , the Hon'ble Supreme Court has observed in paragraph 12 of the judgment as under:- “Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that-"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is R.S.A. No.929 of 1984 (O&M) -5- renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: - "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under 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. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." In view of the above, I am of the opinion that the following question of law arises for consideration of this Court:- “Whether plea of ownership and adverse possession can co-exist or not.” In view of the observation made by the Hon'ble Supreme Court, which have been extracted above, I have concluded that the respondents could not have raised these two pleas together and that the first appellate Court clearly fell in error in not noticing such a contradiction. Even if the plea of adverse possession was to be looked into and examined then also it is to be seen that such a plea is a failing plea and mere length of possession could not confer right R.S.A. No.929 of 1984 (O&M) -6- of ownership by way of adverse possession against a person who claims such a title as the true owner. The Hon'ble Supreme Court in T. Anjanappa and others v. Somalingappa & another, (2006) 7 SCC 570, has observed as under:- “The concept of adverse possession contemplates a 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 rights 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. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner( that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that (a) it is R.S.A. No.929 of 1984 (O&M) -7- the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner. 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.” In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & others, 2008 (2) RCR 337, the Hon'ble Supreme Court observed as under:-

1. 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. 2004 (2) RCR (Civil) 702 (SC) and AIR 1934 PC 23 relied.

2. Possession of one 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 one the basis of joint title- As between co-heirs R.S.A. No.929 of 1984 (O&M) -8- there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster. AIR 1957 SC 314 relied.

6. 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.” Having regard to the aforesaid discussion, the question of law, which has been framed, is answered in favour of the appellant that the respondents could not have been held to be owners by way of adverse possession on account of the fact that two mutually destructive pleas were raised, which in any eventuality, could not co- exist and further the plea of oral sale set up by them has not been proved. The view expressed by the Trial Court is upheld. The appeal is, accordingly, allowed and the impugned judgment & decree dated 7.11.1983 of the first appellate Court is set aside. above. All the pending applications are disposed of in view of 16th March, 2010 Monika (MAHESH GROVER) JUDGE