Abdul Aziz Najar vs Ghulam Mohammad Baba and others

Mufti Baha-Ud-Din Farooqi, J.—This Is an appeal against the judgment and decree of District Judge Anantnag dated 31-3-1971 by which

he reversed the judgment and decree of Sub Judge Anantnag dated 30-9-1967 dismissing the suit of the plaintiffs-respondents 1, 2 and 3.

The suit pertained to land measuring 4 marlas 3 Sirsai and 281/2 sq. ft. entered as 'Abadi Deh' under Survey No. 2684/Min in Mohalla Shah

Shaib, Anantnag town. The plaintiffs based their title to it on a registered sale deed dated 14th Poh 1983 (Bik) executed by one, Abdullah Joo

Guhnoo, in favour of their father, Shri Abdul Ahad Baba. and alleged that they were in possession until dispossessed from a portion there of

measuring 320 sq. ft. which was built upon and otherwise encroached by the defendants, first in May 1958 and then about six months prior to the

institution of the suit. The suit was instituted in November 1961 and the prayer was for possession of the portion encroached upon and for

injunction as respects the portion remaining.

The defendant No. 2. respondent No. 4 herein, admitted the claim of the plaintiffs. The appellant-defendant No. 1 however contested it. He

pleaded that the land was in his possession adversely to the plaintiffs from the time of his forefathers for a period of more than thirty years and that

he himself had built a shed thereon about fifteen years prior to the suit.

Before the lower courts and In this court the controversy centered on the questions whether the plaintiffs had title in the suit land and whether

they were in possession within twelve years of the suit and also whether the defendants had acquired title by adverse possession.

I will first turn to the question of title. On this question the trial court has found against the plaintiffs. The ratio of its decision is that the land being

'Abadi Deh' the title thereof could only be possessory and since, as the trial court said, Abdullah Joo Guhnoo was never in possession, no valid

title could be held to have been passed to the father of the plaintiffs. In this the trial court did not only presume law bearing on 'Abadi Deh' in towns

but also carved out a case for the contesting defendant which he had never set up in his written statement. Nowhere in the said written statement

was it ever pleaded by the contesting defendant that no title had passed to the plaintiffs' father or that the title passed to him was defective. On the

other hand, on the averments made by him, it can be justifiably concluded that he did not question the title of the plaintiffs, which made it

unnecessary even to raise an issue on this point. That is so like this. In paragraph 1 of the plaint the plaintiffs stated:-

In pursuance of the sale deed dated 14th Poh 1983 (Bik) the father of the plaintiffs purchased land measuring 4 marlas 3 sarsai 28 1/2 sq. ft. as

per plan annexed therewith under Survey No. 2684/Min from one Abdullah Joo Guhnoo and since then the father of the plaintiffs and, after his

death, the plaintiffs have continued in possession of the land except during the period between 2007 and 2009 Bik when it was in the permissive

Possession of one Ghulara Rasool Malik who collected stones on it during the aforesaid period and then returned the land along with stones to the

plaintiffs on payment of the cost by them.

In reply in paragraph No. 1 of the written statement it was pleaded as under:-

That paragraph of the plaint is not admitted. The plaintiffs and their father have never been in possession. The suit is barred by time.

Else where also in the written statement this position was not traversed. On the other hand in the additional plea it was again emphasized that

possession had descended on the defendant from his ancestors.

In this state of pleadings it is difficult to say that the allegation about title set up by the plaintiffs was controverted regard being had to the law laid

down by the highest authority in the country, the Supreme Court in Sheikh Abdul Sattar Vs. Union of India (UOI), .

According to the law of pleadings the defendant is bound to deal specifically with each allegation of fact the truth of which is not admitted. If certain

para in the plaint is merely not admitted but the facts there are not specifically dealt with it cannot be said that they are denied. Where the truth of

facts alleged in the plaint, though not specifically dealt with in the corresponding para of written statement were dealt with in the additional

pleadings, the allegation may be considered to have been traversed.

On merits too the position of the plaintiffs on this point was not worse. The plaintiffs traced their title to the sale deed Ex. X. dated 14th Poh

1983 (Bik) which is a registered deed. It is more than thirty years old document which attaches a presumption of correctness to it. Even so the

plaintiffs have produced its scribe Ghulam Mohammad Kochak P. W. who has testified to its execution by the vendor, to which support is also lent

by Habib Ullah Guhnoo, Ghulam Mohammad Tak, Ghulam Mohd. Misger, Ghulam Mohiuddin and Ghulam Mohammad Baba P. Ws. Abdullah

Joo Guhnoo derived title from a similar deed of the year 1976 obtained by him from Abdullah Bhat and others which is also on the file. This

document is also more than thirty years old and a presumption of correctness is attached to it. In this deed presence is shown on the spot of a four

windowed house and two shops covered by it, the remnants whereof were still present when the sale deed of 1983 Bik, was executed, as

indicated in the plan attached therewith. The possession of this house could not be separated from the land underneath and appurtenant thereto

transferred under the deed and not also of the remnants thereof which were transferred by the subsequent deed as indicated in the plan attached

therewith. It is none of the case for the defendant that he or his fore-fathers acquired this house or the shops or the remanants thereof or even the

land underneath. He does not even trace his possession or that of his fore-fathers to the time when these sales took place. His case, vaguely put by

him, is that his ancestors and, after them, he has been in possession for 30 years - that is at a time much later than when the aforesaid sales took

place. How did this happen he nowhere elucidates. Accordingly the trial court was in error when it said that no valid title could be passed by their

predecessors in title to the father of the plaintiffs, even if it were assumed that the title of the lands entered as 'Abadi Deh' was simply possessory

although no law has been cited in the trial court judgment nor even was it cited before me to show that proprietary rights could not be held at the

relevant time as respects lands entered as 'Abadi Deh' in towns as distinguished from villages, in regard to which such a position could be inferrable

from Section 14 of the Common Land Regulation Act 1956. In these circumstances I am in agreement with the first appellate court that title in the

suit land vested in the father of the plaintiffs and through him in the plaintiffs.

This brings me to the question as to whether the plaintiffs have been in possession within 12 years prior to the suit and also whether the

defendant has been in adverse possession. The two questions are interconnected and may be taken up together. On these questions the trial court

has held:-

That the plaintiffs have never been in possession within twenty years before the institution of the suit and that the defendants are not only in adverse

possession of the land but have legal and rightful possession over it.

The first appellate Court on the other hand has held:-

That the plaintiffs have been in possession ever since the land was acquired by their father in the year 1983 and that defendant No. 1 has not

completed his adverse possession.

That makes it necessary for me to see where the truth lies. Before however doing so it may be pointed out that possession can either be traced to

lawful title or can be adverse. It cannot be both, as held by the trial court.

Both the courts below have held that the land in suit remained vacant for a long time but while the trial court has interpreted this circumstance as

a circumstance against the plaintiffs, the first appellate court has relied upon it as a circumstance in their favour, for, according to it, possession is

always referable to the lawful title.' To me it appears that the reply to this question depends on what is the nature of the possession of which a

particular property is capable. The kind of possession which is sufficient in one may not be sufficient in another. In the case of properties like

vacant building site the presumption of possession following title can be reasonably applied as no act of possession can be exercised in relation to it

except by constructing a building on it. In this connection a string of cases of the Madras High Court are noticeable. First comes R.M.C.T.

Ramanathan Chettiar (dead) and Another Vs. P.L.C. Lakshmanan Chettiar and Others, . This was a suit for ejectment. It was held:-

As a general rule, in a suit in ejectment, when the plaintiff seeks, on the strength of title and dispossession, to oust the defendants in possession, he

must prove possession within twelve years of suit. But the possession to be proved is such possession as the property is capable of or such as has

been the normal method of user. When each party who claims possession is unable to prove any acts of effective possession and the normal

method of possession is not referable to any such act. the effective enjoyment of the property is not the customary method of exercising the right of

possession, possession must be presumed to be with the person holding title to the extent to which that title is found valid.

Next comes Kayichankandi Ayissa Vs. Variyil Kunhaikalanthan and Others, . There it was held:-

A person suing in ejectment on the strength of his title and dispossession should establish not only title but also possession within twelve years prior

to the suit. If once he establishes that the date of possession or discontinuance of possession is within twelve years from the date of suit as required

by Article 142 of the Limitation Act, in order to establish prior possession within the meaning of the first column of that Article it is permissible

having regard to the nature of the land such as vacant site, or having regard to the absence of evidence of effective possession or conflicting

evidence as to possession before the date of dispossession, to invoke the aid of the presumption of possession following title.

Both these cases were noticed in the later case of the same High Court Karuthayya Thevar (died) and Others Vs. Karuthayya Thevar and Others,

and it was observed:-

In both these cases emphasis is laid on the nature of the property and the normal method of the user of such property or possession as the

property is capable of i. e. such enjoyment as is ordinarily made use of, of the property. If it is a vacant building site and if, in fact a building is not

constructed and there is dispossession by a trespasser, in a suit for ejectment the fact that it was a vacant site and not used for building purposes

could not be taken to be a failure on the part of the plaintiffs to exercise any acts of possession. The ordinary act of possession to be exercised as

regards vacant building site is to construct a building. Then in that case, the presumption of possession following title could reasonably be applied.

In the instant case, therefore, the fact that the suit land was a building site and remained vacant was a circumstance which would enure to the

benefit of the plaintiffs as the lawful owners to hold their possession of the suit land so long as there was no effective intrusion by the defendants.

That makes it unnecessary even to notice that during the period the land remained vacant, the plaintiffs and so also Muma Malik claiming under

them exercised act of possession by collecting stones on the suit land for construction a fact sufficiently borne out from the evidence on record. All

that is necessary to enquire into is when did the intrusion take place on the side of the defendants? In this connection the statements made generally

by the defendants witnesses except Mohammad Ramzan Kachgaroo are that the defendants used the land as a compound and as a passage to

their house as also for preparing shingles and that they had constructed sheds thereon which, according to them, are of an age ranging between 18

& 20 years from the time their statements were recorded in the year 1965. As held in AIR 1935 53 (Privy Council) .

The principle of law is fairly 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 claiming.

Mere acts of user which do not interfere with or are not inconsistent with the owner's title do not constitute dispossession of the owner or start

adverse possession in favour of the occupant The mere fact, therefore that the defendants used the land as a compound or as a passage or that

they casually used it for preparing shingles over it cannot be styled as acts of user which the real owner may take notice of as acts of adverse claim.

The only acts of disclaimer that he could be expected to take notice of was really the one connected with the construction of shed. That inevitably

raised an important question; when was the shed constructed by the defendant? On this point the defendants' own witness Mohammad Ramzan

Kachgaroo says that it was constructed in the year 1957. The witness has no doubt been declared hostile by the defendant but that would not

reflect adversely on his statement as long it were not shown that his statement was motivated by any extraneous consideration, which there appears

to be none. Leave that alone, the defendant himself states that the shed was constructed by his father through whom it descended on him a stand

which is not only inconsistent with the stand taken by him in the written statement but also with that taken by his witnesses who say that the

defendants themselves had constructed this shed. In this context no reliance can be placed on the evidence given by his witnesses that the shed was

twenty years old and, it must be held, as rightly done by the first appellate court, that the shed was constructed in the year 1958 as stated by the

plaintiff and endorsed by his witnesses when they put its age approximately at 3 to 5 years in their statements recorded in the year 1962-63. In

these circumstances the finding given by the first appellate court that the plaintiffs had proved their possession within twelve years prior to the suit

and that the adverse possession set up by the defendants was not proved must be affirmed.

For these reasons I find no force in this appeal which is hereby dismissed with costs.

Appeal dismissed.