Hasam Din vs Dellu and others

Presumably to be consistent, the learned Vakil for the appellant, makes no reference to the land in dispute having been mortgaged with his client.

There is no proof of it. The learned Vakil tries to make out that his client had no right of any kind to the possession of this land therefore his

possession must be deemed to be adverse to those who were entitled to it. He relies upon the oral evidence and urges that on the strength of it, it is

proved that prior to 1977 his client had been in possession for more than 12 years. The disturbances caused to the possession in 1977 and the

following year by the plaintiffs cannot effect his right and his client prior to the date. This is an ingenious argument but is entirely contradicted by the

written pleas of Hasam Din filed in the Court of the trial on 12th Katik 1986. In the fourth paragraph it is distinctly alleged that plaintiffs ;had never

been in possession of this land that he, Hasam Din, had been in continuous possession without disturbance of anybody for more than 40 years. In

fact he went so fast as to urge that the plaintiffs had abandoned whatever rights they had. In the presence of the very clear pleas and the fct that the

question of abandonment was argued before the court of trial it is idle now to urge that there was adverse possession. In the case of abandonment

the res when the abandonment becomes nullius and the occupier takes it by what the Roman jurists called occupatio. It was in no one's possession

and the first person taking possession of it become adverse to anybody for the simple reason that the person hitherto before entitled to it severs his

connection and has not intention of resuming custody or ownership. It is only when a thing belongs to somebody else who is entitled to its

possession and another party without any right to it enters upon it that the question of adverse possession crops up.

In this case the finding of both the lower courts is that the status of the appellant is that of a tenantatwill and that he has not been able to prove that

his possession was otherwise than permissive as is recorded in the revenue papers. This finding explains how it was that in revenue girdawari

papers of Samvat 1977 and 1978 the plaintiffs are recorded as being in cultivative possession of this field. There is no substance in the second

appeal which is dismissed with costs.