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Judgment
Jaspreet Singh, J
By means of the present second appeal the defendants assail the judgment and decree passed by the Court of Additional Civil Judge (Senior Division), Court No.20, Lucknow dated 31.05.2005 whereby the suit of the plaintiff-respondents was decreed and the first appeal under Section 96 CPC filed by the defendant-appellants bearing No.79 of 2005, has been dismissed by means of judgment and decree dated 15.02.2013, affirming the judgment of the trial court.
This second appeal was admitted by this Court by means of the order dated 21.03.2013 on the following substantial questions of law which are being reproduced here as under:-
"1. Whether it was incumbent upon the plaintiffs/respondents to allege and prove their vendors title and having failed to do so the courts below were justified in law in decreeing the suit?
Whether the Trial Court has erred in law in not framing necessary issues arising out of the pleadings of the parties more particularly when the suit was barred by limitation"
I have heard Sri Mohammad Arif Khan learned Senior Advocate for the appellants and Sri U. K. Srivastava learned counsel for the respondents.
Before adverting to the submissions raised by the learned counsel for the parties, facts leading upto this appeal are being noticed first.
That the plaintiffs who are the respondents before this Court are the legal heirs and successors of one Irshad Ali, who was the original plaintiff. Irshad Ali instituted Regular Civil Suit No.164 of 1987 seeking a decree of injunction and later the suit was amended and a decree of possession was also sought. It was pleaded that one Shahid Ali had purchased the land measuring 7016 sq. ft. from Nagar Mahapalika Lucknow by means of registered sale deed dated 25.10.1978 for the total sale consideration of Rs.8,068.40. It was also pleaded that though the aforesaid sale consideration was deposited by Shahid Ali with the Nagar Mahapalika, Lucknow on 09.07.1965. However, since one Ram Shankar and two others had instituted a suit bearing Regular Suit No.649 of 1965 wherein an interim order was granted, thus the sale deed could not be executed by Nagar Mahapalika in favour of Shahid Ali.
Suit No.649 of 1965 was dismissed in default on 06.04.1977, accordingly sale deed thereafter was executed in favour of Shahid Ali on 25.10.1978. Later the suit of 1965 came to be restored and was contested on merits and ultimately was dismissed on merits on 09.03.1984. The plaintiffs of the suit of 1965 thereafter preferred a Regular Civil Appeal No.104 of 1984 which also came to be dismissed on 16.02.1989. In the meantime, Shahid Ali got a map sanctioned in respect of the property purchased, by him from the Nagar Mahapalika, raised construction and it is during that time that the defendants attempted to encroach around 1232 sq. ft. of land. The details of which were shown in the site-plan annexed with the plaint.
Under the aforesaid circumstances, the cause of action accrued to the plaintiffs on 22.08.1980 and the suit for injunction was instituted. However, since the defendants had raised the construction, therefore, after amendment a prayer was made for seeking the possession of 1232 sq.ft. of land as shown in the site-plan with red colour lines.
The defendants preferred a written statement and contested the case of the plaintiffs. It was specifically stated by them that the Lucknow Nagar Mahapalika was not the owner of the property in question, accordingly Nagar Mahapalika did not have the right to sell the property to the plaintiff Shahid Ali.
The boundaries of the disputed property, measuring 1232 sq. ft. of land was also disputed and it was pleaded by the defendants that the property in question actually belonged to Ram Shankar, Mani Shankar and Dev Shankar Tiwari. The defendants further stated that they had purchased the property from Ram Shankar, Mani Shankar and Dev Shankar by paying valuable sale consideration and they are the owners in possession of the property in question. In the alternate, it was pleaded that in case if the title of the defendants was not found valid even then since the defendants have been in settled possession of the property in question, thus they had perfected their rights by adverse possession and even on the aforesaid count, the plaintiffs could not succeed.
The parties led evidence and filed large number of documents in support of their contentions. The trial court in view of the conflicting pleadings of the respective parties framed five issues.
For the purposes of the present appeal, the relevant issues are (i) whether the plaintiffs are the owner of the property in question; (ii) whether the defendants are the owner in possession of the property in question; (iii) whether the defendants have perfected their title by way of adverse possession.
The trial court after scrutinizing the evidence both oral and documentary considering the issue nos.1 and 2 held that the property in question belonged to the plaintiffs who had a valid title having purchased the same by means of a registered sale deed dated 25.10.1978. The trial court negatived the contention of the defendants and held that they did not have any right over the disputed property in question since in the earlier suit bearing Regular Suit No.649 of 1965, it was already held that the predecessor of the defendants, namely, Ram Shankar, Mani Shankar and Dev Shankar did not have any rights and therefore they could not transfer any better title then what they possessed.
However, while dealing with issue No.4 relating to the adverse possession, trial court considered the respective evidence of the parties and found that since there was a litigation pending between the Nagar Mahapalika and Ram Shankar, Mani Shankar and Dev Shankar since 1965 and the sale deed in favour of the defendants was executed during the pendency of the aforesaid litigation of 1965, wherein the title of the predecessor of the defendants was held to be in valid and since the proceedings were pending which culminated with the dismissal of the first appeal only on 16.02.1989 whereas the present suit had been instituted on 25.08.1981, accordingly the plea of adverse possession as claimed by the defendants was also negatived.
Consequently, the suit came to be decreed by the trial court by means of the judgment and decree dated 31.05.2005.
The defendants-appellants thereafter assailed the same before the first appellate court and while raising the aforesaid plea which were raised before the trial court, yet the same did not find favour with the first appellate court, who dismissed the appeal by means of the judgment and decree dated 13.02.2013.
The appellants before this Court have assailed the aforesaid two judgments and decree and the main thrust of the submission of Sri Mohammad Arif Khan learned Senior Advocate is as under:-
Since Nagar Mahapalika did not have the title to the property which in turn could not transfer the property to the plaintiffs, thus the plaintiffs without proving the title of his vendor was not entitled to a decree of possession and this aspect of the matter has not been considered by the two courts which has vitiated the judgment.
The other ground raised by the learned counsel for the appellants is that the suit of the plaintiffs was barred by limitation and there was no issue framed in respect thereto, this has vitiated the entire trial and the matter demands trial de novo.
The first appellate court has not considered the evidence led by the parties and without considering the same and the effect of such documents it has merely affirmed the finding of the trial court which is against the mandate of Order XLI Rule 31 CPC. He went on to submit that the document filed by the defendants alongwith the document list paper no.C-95, if those documents would have been considered, the effect of the same would have affected the outcome of the first appeal and the first appellate court has failed to exercise jurisdiction and decided the appeal against the provision of Order XLI Rule 31 CPC and as required in law.
Lastly, it was contended by the learned Senior Advocate that in any case since admittedly the defendants have been in possession and to the knowledge of the plaintiffs and his predecessor who did not institute any proceedings against them, consequently they have perfected their rights by adverse possession.
Per contra Sri U. K. Srivastava submitted that the findings regarding title which is based on registered sale deed, coupled with the fact that the certified copies of the judgments and decree of the previous suit of 1965, which was brought on record have been considered and the findings recorded by the trial court in respect thereto being pure finding of fact cannot be disturbed in exercise of powers under Section 100 CPC. He went on to elaborate that in the earlier suit of 1965, a categorical finding had been recorded that the predecessor in interest of the defendants did not have any title and the title vested with the Nagar Mahapalika, therefore, it was held to be the owners. Consequently the sale deed executed by Nagar Mahapalika in favour of Irshad Ali was valid which conveyed proper title and once in the earlier suit of 1965, the title of Nagar Mahapalika was recognized, there was no requirement for the present plaintiffs to prove the title of their vendor.
Learned counsel for the respondents further went on to submit that the pleadings regarding adverse possession which is now been raised by the defendants were extremely sketchy before the trial court and though appropriate issues were framed including issue no.2 which related to the fact whether the defendants was the owner in possession and simultaneously issue no.4 which referred to the title of the defendants on the basis of adverse possession which was an all encompassing issue which reflected pleadings and contentious of the parties and therefore it cannot be said that appropriate issues were not framed by the trial court which has vitiated the trial. It was also submitted that the defendants did not place proper pleadings nor evidence which is required in law to establish the ingredients of adverse possession and now having failed to do so, cannot be seen crying foul and in any case all these findings being pure questions of fact require no interference from this Court.
The Court has considered and given its mind to the submissions raised by the learned counsel for the respective parties and have also carefully perused the record.
In order to answer the first question framed by this Court, whether it was incumbent for the plaintiffs to have proved the title of their vendor in order to succeed in the suit for which, the Court has considered the pleadings of the parties as well as gone through the certified copy of the judgment of the earlier suit bearing Regular Suit No.649 of 1965.
From the perusal of the judgment of the suit No.649 of 1965, it is clear that it was instituted by Ram Shankar, Mani Shankar and Dev Shankar "the predecessor in interest of the present defendants" who had instituted a suit for possession against the Nagar Mahapalika Lucknow and in the array of the parties, in the defendants column, apart from Nagar Mahapalika, the predecessor of the present plaintiffs, was also one of the parties.
In the aforesaid suit of 1965, a specific issue regarding their title and possession of the plaintiffs was framed. The plaintiffs of the suit of 1965 as reiterated are the predecessor in interest of the present defendants. The Court while considering issue no.1 clearly held that the plaintiffs of the suit of 1965 did not have any title in respect of the property in question and while dealing with the issue no.2, it recorded a finding that it was the Lucknow Municipality and Nagar Mahapalika who has been in possession of the property in question since many years and therefore the plaintiffs did not have any right over the property in question.
Significantly, this judgment rendered on 09.03.1984 was assailed by Ram Shankar, Mani Shankar and Dev Shankar by preferring a Regular Civil Appeal No.101 of 1984 which also came to be dismissed by means of the judgment dated 16.02.1989 with the specific finding that the plaintiffs "the appellate herein" have failed to prove their ownership over the disputed piece of land and the judgment passed by the learned Munsif was upheld. This judgment passed in the first appeal admittedly has not been questioned any further as no second appeal was filed and it attained finality. Thus, once it was fully established, after due contest, that Ram Shankar, Mani Shankar and Dev Shankar did not have the rights over the property in question, therefore, the alleged sale deed executed by them in favour of the defendants also does not confer any right upon them. Accordingly this Court is in agreement with the findings returned by the two courts that since the defendants did not have any title to the property and the title already stood established and found to be with the Nagar Mahapalika who executed the sale deed and transferred its possession to the plaintiffs, thus they are found to be the owners and there is no error committed while arriving at that finding.
The question that the plaintiffs must establish the title of the vendor also is misconceived as already noted above, the title of the Nagar Mahapalika was already established in the earlier suit of 1965 and since it was held that the vendor of the defendants did not have any title and they do not derive any title themselves, hence, it is not open for them to raise this plea since the title of the plaintiffs and their predecessor stood already established and in the knowledge of the defendants .
The second submission regarding the plea of adverse possession taken by the defendants and the fact that the suit was barred by limitation and the court did not frame any issue regarding the same, has vitiated the trial, is now been considered.
At the very outset, it is stated that the defendants while filing his written statement bearing paper no.A-23 stated in paragraph-4 that the property actually belonged to Ram Shankar, Mani Shankar and Dev Shankar and that they purchased the property from them for a valuable sale consideration vide registered sale deed dated 17.02.1965 and that the house raised by the defendants was duly assessed in the Nagar Mahapalika record, thus they have been in possession. In paragraph-16, wherein the plea of adverse possession is taken is quoted hereinafter:-
"16. that in the alternate the defendants have perfective their rights over the property in suit by way of adverse possession."
From the perusal of the entire written statement, not a single plea regarding the limitation of the suit was raised.
This Court has perused the record and upon the reading of the written statement primarily two pronged defence was taken by the defendants; (1) that they are the owner on the basis of registered sale deed dated 17.02.1965; and (2) that they have perfected their rights by adverse possession.
Seen from this angle, the issues framed by the trial court are absolutely in consonance with the pleadings of the parties and the trial court has indicated above had framed issues nos.1, 2 and 4 which cover the dispute raised between the parties.
The issues were properly reflective of the points of controversy and the parties knowing the case that they had to meet had led their evidence both oral and documentary and therefore this Court is satisfied that there can be no error found and plea raised by the learned counsel for the appellants that the plea regarding limitation has not been framed, is turned down.
Learned counsel for the appellants further went on to state that even if the plea was not raised in the written statement yet in terms of Section 3 of the Limitation Act, it was necessary for the court concerned to have looked into the ground regarding limitation and since it has not been done, the decree stands vitiated.
This arguments of the learned counsel for the appellant is also misconceived for the reason that the plaintiffs became the owners of the property in question by the sale deed dated 25.10.1978. The present suit has been instituted in the year 1980 which was initially for permanent and mandatory injunction. There is specific pleading in the plaint in suit that the cause of action for the aforesaid suit accrued on 22.08.1980 and, therefore, there is no reason for the Court to have come to any different conclusion to say that the suit was barred by limitation in terms of Section-3. Even stretching the aforesaid argument, if at all the plea of possession which was amended and taken in the plaint if that is seen even then it would be noted that the relief of possession can be claimed in terms of the Limitation Act and in view thereof, it cannot be said that the suit was barred.
Apart from this, there is no explanation from the side of the defendants as to why if at all there was any plea regarding limitation, the same was not raised. In absence of any pleadings taken by the defendants, the plea of limitation is wholly misconceived and the reference to Section 3 also has no meaning; inasmuch as the averments contained in the plaint do not in any fashion indicate that the suit for which the reliefs were claimed, were barred by any limitation. Accordingly, this limb of the argument also fails and this Court is satisfied that there was no requirement to frame any issue regarding limitation.
The last contention of the learned counsel for the appellants regarding having perfected the title by adverse possession, is also negatived for the reason that in so far as the plea of adverse possession is concerned, the defendants had raised a mutually destructive plea; inasmuch as it set up for title in themselves and also pleaded adverse possession which needless to say could not have been done by the defendants. On the strength of the registered sale deed of 1965 and in the alternate, it took the plea that they have perfected their rights by adverse possession. This is a mutually descructive plea and is not permissble. (see 2005 7SCC page 653, 1996 11 SCC 690 and 2006 12 SCC page 233).
In order to deal with the aforesaid submission, it will be necessary to notice the law of adverse possession and how it has been developed over period of years. The Hon'ble Supreme Court has held in the case of State of Haryana Vs. Mukesh Kumar and others reported in 2011 (10) SCC 404 wherein in paras 26 to 29 it has been observed as under:-
"26. The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.
The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity.
During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.
The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change."
It is in this backdrop that the Hon'ble Supreme Court in the case of State of Haryana Vs. Mukesh Kumar (supra) had the occasion to consider the law of adverse possession and upon considering the various judgments of the Hon'ble Supreme Court on the aforesaid point which is reproduced herein as under:-
"31. 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. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission.
This Court in Revamma (supra) observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the 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.
The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.
The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimension of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession.
Paragraphs from 26 to 29 of Hemaji Waghaji Jat (supra) are set out as under:-
With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of JA Pye (Oxford) Ltd. v. United Kingdom (2005) 49 ERG 90 which concerned the loss of ownership of land by virtue of adverse possession. In the said case, "the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land." The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The Grahams challenged the applicant company's claims under the Limitation Act, 1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 1 2 years of adverse possession by another.
The judgment was pronounced in JA Pye (Oxford) Ltd. v. Graham (2000) 3 WLR 242 : 2000 Ch 676. The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is "illogical and disproportionate". The effect of such law would "seem draconian to the owner" and "a windfall for the squatter". The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.
The House of Lords in JA Pye (Oxford) Ltd. v. Graham (2003) 1 AC 419 : (2002) 3 WLR 221 : (2002) 3 All ER 865 (HL), observed that the Grahams had possession of the land in the ordinary sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.
We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59: (SCC p. 79, paras 51-52)
"51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (''the Convention').
It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (`the Convention'), which reads as under:
`Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with general interest or to secure the payment of taxes or other contributions or penalties.'"
This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of "peaceful enjoyment of property": (SCC p. 79, para 53)
"53. ... [In] Beyeler v. Italy [GC] No. 33202 of 1996 ''108-14 ECHR 2000-I, it was held that the `interference' should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised."
The Court observed:(Revamma case 79-80, paras 54-56
"54. ... `The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served.
In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other.
There has therefore been a violation of Article 1 of Protocol 1.'
The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.
Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights."
In Hemaji Waghaji Jat case, this Court ultimately observed as under:
"32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation."
In the light of the law as laid by the Hon'ble Supreme Court, it would reveal that burden of proof regarding adverse possession is on the defendants and from the material and evidence available on record, the defendants have failed to establish the ingredients regarding adverse possession.
In order to arrive at a finding regarding adverse possession it is absolutely essential for a person raising such a plea to plead and prove the following ingredients:-
(a) on what date, he came into possession;
(b) what was the nature of his possession;
(c) whether the factum of possession was not 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.
All the aforesaid conditions must be pleaded and proved simultaneously (See: 2013 (13) LCD 1448 - Smt. Firoz Jahan and others vs. Nazim Husain and others).
From the perusal of the written statement filed by the defendants, it would be clear that the written statement is absolutely bereft of the necessary pleadings which are essential to prove the plea of adverse possession. This fact apart even the evidence led by the defendants does not support the plea of adverse possession; inasmuch as the defendants have failed to plead and prove who is the actual owner. He cannot plead the actual ownership with himself and his predecessors and then claim adversity of possession against the plaintiffs of the present suit as that would amount to a mutually destructive plea.
Therefore first it was incumbent upon the defendants to have recognized who the actual owner was and that he had come into the possession of the property in question, to the knowledge of the actual owner, which has been settled and in the knowledge of the actual owner, who has not made any attempt to oust the person claiming the right of adverse possession. It was also incumbent to indicate what was the starting point of limitation for considering the adversity in terms of Article 65 of the Limitation Act and from the material available on record, it would indicate that not only the pleadings but even the evidence led by the defendants in respect thereto was absolutely sketchy.
This Court is fortified in its view in light of another judgment of the Hon'ble Supreme Court reported in 2009 (16) SCC page 517, Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and others, wherein the Hon'ble Supreme Court considered the law regarding the adverse possession and held as under:-
"14. In Secretary of State for India v. Debendra Lal Khan AIR 1934 PC 23, it was observed that the 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.
This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, while following the ratio of Debendra Lal Khan's case (supra), observed as under:
"But it is well settled that in order to establish adverse possession of non-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non- possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The 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. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co- heirs 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."
The court further observed thus:
"The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
In S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Hidayatullah, J. speaking for the court observed as under:-
"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 a mere 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 facts of R. Chandevarappa & Others v. State of Karnataka & Others (1995) 6 SCC 309 are similar to the case at hand. In this case, this court observed as under:-
"The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. 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. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
In D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 this court observed as under:-
"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."
In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC 271, paras 21-22, this Court observed as under:
"21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
....We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."
In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:-
"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 the 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."
The court further observed that
"11. ..... 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."
In Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed:
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376)
`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. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)"
This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114 para 7. This Court observed as under:
"7. ...In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
This court had an occasion to examine the concept of adverse possession in T. Anjanappa & Others v. Somalingappa & Another [(2006) 7 SCC 570]. The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that
"20. ... 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 a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this court again had an occasion to deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6 observed as under:-
"5. 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. [See Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]
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 color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim."
(emphasis in original)"
Thus in view of the settled legal position which has been noted herein above, it would be seen that the findings of the two courts are based on evidence and material on record. It is also admitted that it was the plaintiffs predecessor who had instituted the suit in 1965 and which culminated in the decree dated 16.02.1989 while the suit of the plaintiffs was already instituted in the year 1980 against them, therefore, it cannot be said that the defendants were in settled possession or their rights were adverse to the knowledge and in view of the previous suit wherein the findings have been returned against the defendants now it cannot be used to re agitate and play another innings.
This Court is satisfied that the plea of adverse possession is also not available to the defendants and both the courts below have rightly considered the evidence and returned findings of fact which this Court is loathe to intervene in exercise of powers under Section 100 CPC. Accordingly, the questions poised before this Court stands answered.
The plea of violation of Order XLI Rule 31 also is devoid of merits as the first appellate court has considered all the points and dealt with all contentions of the defendant-appellant and thus merely the judgment being not to the satisfaction of the defendant does not makes it vulnerable. (See Dalla Vs. Nanhu 2019 (1) ADJ page 246 (LB)).
The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
In a recent case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
"...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law."
In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
"...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal."
In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
In view of the aforesaid settled position, this Court is satisfied that the judgment and decree passed by the two courts are based on sound and cogent reasoning and requires no interference from this Court. The appeal is concluded by concurrent findings of fact. Accordingly, this second appeal lacks merit and is accordingly dismissed and the judgment and decree dated 31.05.2005 passed by the Additional Civil Judge (Senior Division), Court No.20, Lucknow and judgment and decree dated 15.02.2013 passed by the Additional District Judge, Court No.13, Lucknow are affirmed. There shall be no order as to costs.
The Registry is directed to remit the lower court record to the concerned court within a period of two weeks.