@ HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. 82 OF 2006 APPELLANTS Smt. Fagni Bai, Widow of Salikram Defendaxits Lodhi, aged about 75 years Alkharam‘S/o Salikram, aged about 42 years 3) Sugan wife of Alkharam, aged about 4O years 4) Shanti Bai Widow of Maujiram, aged about 45 years 5) Chhannuram S/o Maujiram, aged abOut 28 years 6) Himmat S/o Maujiram, aged about 22 years A11 are resident of village Saliha, Patwari Circle no. 321, Tahsil Khairagarh, District- Rajnandgaon C.G. Versus RESPONDENTS 1)’ Alaliram S/o Ramadhin Lodhi, aged PLAINTIFF about 48 years, R/o Village Saliha, Tahsil Khairagarh, District Rajnandgaon. 2) State of C.G., Through the Collector, Rajnandgaon. MEMO OF SECOND APPEAL UNDER SECTION 100 OF CODE OF THE CIVIL PROCEDEURE, 1908. (SB :Hon’ble Mr. T.P.Sharma, J.) Present : Mr. Rakesh Pandey, Advocate for the appellants. Mr. K.A. Ansari, Senior Advocate with Mr. Vipin Singh, Advocate for the respondent Nor 1. Mr. Rakesh Kumar Jha, Dy. G.A. for the State/respondent No. 2. JUDGMENT (Passed on2g /08/2010) l. By this second appeal under Section IOO of the Civil Procedure Code, 1908 (in short ‘the Code’) appellants have challenged the legality and propriety of the judgment and decree dated 7/2/2006 passed by Additional District Judge, Khairagarh in Civil Appeal N0. 19—A/03 affirming the judgment and decree dated 30/8/2003 passed by Civil Judge Class —I, Khairagarh in Civil Suit No. 34-A/Ol with additional relief of permanent injunction. Present second appeal has been admitted for consideration on the following substantial question of law:— “Whether the First Appellate Court'erred in reversing the judgment and decree passed by the trial Court in Civil Suit No.‘ 34—A/2001 and granting relief to the plaintiffs on inadmissible grounds inspite of a clear finding recorded by it that the plainti}? had filed to peifect the title over the suit land due to adverse possession ” Brief case of the parties as per allegations made in plaint by the plaintiff/respondent No. l, appellants and respondent No. l are member of joint Hindu family. The partition took place 50-60 years prior to filing of the suit and the land in question bearing Khasra No. 584, Area - 0.02 Acres was allotted to appellants which he was using for keeping cattle but erroneously it was recorded in the name of appellant No. 1 in the revenue record even otherwise he has perfected his title over the land by way of adverse possession. 4. By filing the written statement, present appellants have denied the allegations made in the plaint and ihave alleged that present respondent No. 1 was never in possession and the suit land but subsequently he came into possession of the suit land. Respondent No. 1 filed an application for demarcation of the land before the Revenue Court and after demarcation of the land appellant No. 1 filed an application for reinstatement of the Bhoomiswami land dispossessed by the respondent No. 1. Interim order was also passed in favour of respondent No. 1, same was stayed by the Superior ...« @ , Court. Present respondent No. 1 has flled present suit for declaration of title on the basis of adverse possession and permanent injuction. After providing an opportunity of hearing to the parties learned Civil Judge Class—I, Khairagarh decreed the suit to the extent of declaration, appeal was filed by the respondent N0. 1 while affirming the judgment and decree learned Appellate Court has also granted relief of permanent injunction to the‘respondent No. 1. Decision for this second appeal, aforesaid substantial uestion of law wa q s formulated. Mr. Rakesh Pandey,'Advocate for the appellants, Mr.‘ K.A. Ansari, Senior Advocate with Mr. Vipin Singh, Advocate for the respondent No. 1 85 Mr. Rakesh Kumar Jha, Dy. G.A. for the State/respondent No. 2 are heard. Judgment impugned and record of Courts below perused. Learned counsel for the appellants vehemently argued that in the present case, respondent No. 1 has specifically admitted that Court below has decreed the suit on inadmissible ground inspite of a clear finding recorded by the Appellate Court that plaintiffs have failed to perfect the title over the suit land on the basis of adverse possession. Learned counsel for the appellants further argued that in reply to application under Section 250 of the C.G. Land Revenue Code, 1959 (in short ‘the Code of 1959’) present respondent No. 1 has specifically admitted that he was in permissive possession of the suit land therefore, no decree on the basis of adverse possession was -p possible. 10. Learned counsel for the appellants also argued that in order to perfect the title by way of adverse possession, parties are required to @ show the date when possession become notorious and adverse within the knowledge of opposite party, he was in continuous possession of the land and adverse to the owner of the property for more than 12 years but in the present case, present respondent No. 1 has failed to proof the aforesaid facts. . Learned counsel for the appellants placed reliance in the matter of Annasaheb Baeusaheb Patil and others vgs Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc.1 in which Apex Court has held that the possession on the basis of title does not constitute adverse possession and mutation in the name of elder member of joint Hindu family is not sufficient to proof the adverse possession. Learned counsel for the appellants further placed reliance in the matter of Abubakar Abdul Inamdar (dead! by LRs. and others v/s Hartln Abdul Inamdar and others? in which Apex Court has held that in absence of pleadings of adverse possession no amount of proof can substitute the pleadings, which are the foundation of claim of a litigating party. . On the other hand, learned counsel for the respondent No. 1 85 2 opposed the appeal. Learned counsel for the respondent No. 1 submits that present respondent No. 1 has not admitted the factum 0f permissive possession. Present appellants have filed the suit for declaration of title on the basis of title and also on the basis of adverse possession and has specifically pleaded the acquisition of title by partition and also by adverse possession. ‘AIR 1995 SC 895 2AIR 1996 SC 112 @ 13. Learned counsel for the respondent No. 1 placed reliance in the matter 0f BONDAR SINGH AND OTHERS v/s NIHAL SINGH AND OTHERS3 in which Apex Court has held that party in possession on the basis of unstamped documents, documents can at least be looked into for the collateral purpose of nature of possession of the plaintiffs over the land. “3'14. In the present case, present respondent No. 1 has filed suit for declaration of title and has specifically pleaded that he had acquired title over the land. He has received land on partition and is in continuous possession over the land since last 60 years. Firstly his father was in‘ possession of the land thereafter; after death of his father in the year 1986; he independently came into possession of the land in the knowledge and in front of present appellants. Both the parties have documentary and oral evidence. Alleged reply of the application under Section 250 of the Code of 1959‘filed on behalf of the present respondent No. l reveals that he has obtained the suit land on partition and same was given to his father on partition on account of his necessity for keeping the cattle and to use the same as a barn. He has not stated in his reply but he was in permissive possession of the land. 15. The certified copy of Panchshala Khasra of the year 1974—1979 (Ex. P—l) reveals that land was recorded in the name of appellant No. 1 but Ramadhin father of respondent No. 1 was in possession in the aforesaid years. Land was demarcated at the instance of appellants in the year 1999 vide EX. P—2 in which it has been specifically mentioned that land in the name of appellant No. 1 but respondent 3 (2003) 4 scc 161 No. 1 is in possession of the land. As per Ex. P—8 the dispute land is d a kitchen garden (Badi) surrounded by wall. Present respondent No. 1 has examined DWI Alkharam and DW2 Damodar. DWI Alkharam has deposed in his evidence that they are in possession of the suit land. The land was demarcated and possession of the respondent No. 1 was found. . When appellants were in possession of the land then there was no occasion for demarcation that too at the instance of appellants but reasons best known to the appellants they have applied for demarcation of the land and possession of the respondent No. 1 was confirmed by demarcation. Present appellants have not stated in their pleadings or evidence that during the period of demarcation present respondent No. l has dispossessed them from the suit land interalia as per allegation and evidence of the respondent No. 1 /plaintiff his father was in possession of the land prior to 1974. He died in the year 1986, he is in possession of the land during lifetime of his father, thereafter, he is in possession of the suit land within ‘ the knowledge of appellants who are residing near the suit land. This is not a case in which on the ground of boundary dispute, appellants were not confirmed about their possession but in the present case, kitchen garden (Badi) was surrounded by wall shows that respondent No. 1 was in possession of the land within the knowledge of present appellants who claims the ownership over the land. In the present case, relief claimed by respondent No. 1 is defective l7. virtually the pleadings ‘of the plaint and relief reveals thath’present respondent N0. 1 acquired ownership over the property on the basis of partition but it was recorded in the name of appellant No. l. @ Present respondent No. 1 is alsp in possession of the land recorded in the name of appellant N0. 1 within the knowledge of appellants therefore, even otherwise he has perfected his title by adverse possession. Courts below are required to see and examine the pleadings, relief and in its entirety only on the ground of some technical defect, suit should not thrown. The claim of adverse possession clearly reveals that the respondent'No. l has also claimed by way of adverse possession on the ground that land has been recorded in the name of appellant No. 1 and he is in continuous possession for long time for more than 12 years within the knowledge of appellants. 18. In case of Annasaheb Bapusaheb Patil and others (Supra) Apex Court held that possession does not become adverse if based on lawfull title or mutation in the name of elder member of joint Hindu family, property is not sufficient to proof the factum of adverse possession. In the present case, virtually respondent No. 1 has Claimed the title on the basis of partition and also on the basis of ‘ adverse possession, both are independent and ancillary relief. The claim is not based only on the basis of acquisition of the title therefore, the case of Annasaheb Bapusaheb Patil and others (Supra) is distinguishable on the grounds of facts. 19. In the case of Abubakar Abdul Inamdar (Supra) it has held that in absence of pleadings the evidence of adverse possession cannot be proved. In the present case, respondent No. 1 has pleaded the factum of adverse possession and also proved the same, the’case of Abubakar Abdul Inamdar (Supra) is distinguishable on the grounds of facts. 20. As held in case of BONDAR SINGH AND OTHERS (Supra) this case is not based on any unregistered transactions, the case of BONDAR SINGH AND. OTHERS (Supra) is distinguishable on the grounds of facts. 21. In the present case, virtually respondent No. 1 has claimed the relief in defective manner but his pleadings reveal that he has claimed title on the basis of partition and also on the basis of adverse possession in the light of entry ‘of the name of appellant No. l in the revenue record. Both the relieves are ancillary. In the present case, relief as claim are not based on inadmissible ground. Courts below has not recorded any clear finding, evidence and document are sufflcient to prove the fact that present respondent No. 1 has also perfected his title by adverse possession. 22. For the foregoing reasons, the substantial question of law formulated for decision of this second appeal is decided as negative. On the basis of finding on aforesaid substantial question of law formulated for decision of this second appeal, I do not find any substance in the second appeal. Consequently, Second Appeal is liable to be dismissed and is hereby dismissed. 23. Parties shall bear their own costs. 24.‘ Advocate fee as per schedule. 25. Decree be drawn up accordingly. , Sd/- T.P. Sharma Judge