m THE HIGH COURT OF CHEATTISGARH AT BILASPUR SECOND APPEAL no 22% g 2004 APPELLANT / Paltan Slngh aged 5% yaals DEFEHDANT son of Rha1bar Smg‘l, rfo Ward No 17 Tehs11 and Dlsmct Janjgw— Champa (C .G .) r ‘* ‘ VERSUS ‘ RESPONBENT : wk (’Smt Rukmam Bal, agsd 60 yBars, PLAINTIFE $W1fe oi Guhar Smgh Kshatrl, r/o ’§% .7? , ‘ Chandmya and Dlstrlct Para Janjgir—Champa Ward no 17 (C TehS11 G 1 f O‘) @\. a, ’ -‘-' a sEcorm A?PEAL UNDER sm'now 100 OF CIVIL ‘ " \‘ pRoCEDURE CODE HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra ' Second Apgl No.228 of 2004 ‘ Paltan Singh 1 versus Resjpondent Smt. Rukmani Bai Appellant Present: f Shri Kishore Bhaduri, counsel for the appellant. Shri Sanjay K. Agrawal with Shri Sourabh Sharma, counsel for the respondent. ‘ e Second Aggeal under Section 100 of the Code of Civil Procedure, ‘ ' 1908 JUDGMENT (Delivered on Lé”\April, 201p) Challenge in this second appeal 'under Section 100 of the Code of Civil Procedure is to the judgment and decree passed by the first appellate Court in favour of the respondent/plaintiff. The trial Court had dismissed the plaintiff’s suit for recovery of possession and permanent injunction and the first appellate Court, while allovlring the appeal preferred by the respondent/plaintiff, has decreed the suit and has directed the appellant to hand over possession of a part of the suit ‘ property and restraining him to not to interfere in the possession of the plaintiff on the other part of the suit property. 2. The respondent/plaintiff preferred the suit with respect to land " bearing Khasra No.2707/14 area 0.1 1‘ acre situated at Mauja Janjgir. It / V l was the case of the plaintiff that she has purchased the suit land from Thakur Nathan Singh by registered sale-deed dated 27-7-1967 and her name ;has been duly mutated in the revenue records. She has got it diverted from agricultural to non-agricuiturai use, the house having ’ aiready been constructed in the year 1972 and that she is paying the revende rent and other municipal dues relating to the suit property and her name is also entered in the records of the Municipal Council as ownerfof the property. She had allowed her husband’s relative Firtu Singh and his wife Umendbai to reside in a part of the suit house for z sometimein the year 1982, the other part remaining in her possession, however, by mistake, the names of Firtu Singh and his wife Umendbai were recor‘ded in the‘ municipal records, which was later on corrected. Firtu Singh died about 2 years back‘from the date of tiling of the suit but Umendbai is continuing to reside in a part of the suit premises. 3. lt was further stated in the plaint that the defendant applied before the Sub-Divisional Officer, Janjgir for obtaining lease of a piece of Government land located opposite the Government hospital and had sworn affidavit that he has no other land in his ownership in the town of Janjgir. His application was rejected and an order was passed against him for sending him to civil jail. The plaintiff started raising construction on the front part of the suit land which was stopped by the Municipal Council on which she moved application for sanction of building plan which was allowed in her favour. During this time, the defendant came to the plaintiff’s husband and requested for a shelter in the plaintiff’s house on the ground that an order of sending him to civil jail has been l passed and he has no place to take shelter. The plaintiff, therefore, allowed the defendant to occupy one room and verandah in the suit s.~\ 74 l premises, however, later on, in spite of request, the plaintiff refused to vacate the area in his occupation and thus the plaintiff was not able to raise: construction. The plaintiff was thus compelled to file the suit for possession and permanent injunction. 4. i The defendant, in his written statement, denied the plain averments and stated that Nathan Singh was not the owner of the property, mutation of plaintiff’s na‘me is illegal, the house has not been constrygted by the plaintiff and that there is no cause of action for filing the suit. 5. lt was specifically averred in the written statement that the suit premises was in possession of one Ram Krishna who was the Lambardar of the village. The said Ram Krishna granted the land to Firtu Singh who constructed the house and the open portion was used as kitchen garden. Firtu Singh was tn possession of the land since 1951 till 1982 in the knowledge of Ram Krishna and that Firtu Singh, being in possession for more than 12 years had perfected the title by adverse possession. It was further stated that Firtu Singh was issueless and the defendant was taking care of him, therefore, Firtu Singh and Umendbai accepted the defendant as the co-owner and as such he has also acquired title in the suit property. It was‘ stated that the suit is barred by limitation and also that Umendbai had executed a ‘Will dated 5—3—1995 in favour of defendant bequeathing the suit property in his favour. "" «A i6. The trial Court, vide its judgment and decree dated 31-8—2000, l dismissed the suit. ln answer to issue No.1, the trial Court held that l l the land earlier belonged to Nathan Singh and the plaintiff has purchased the land by registered sale-deed dated 23—7-1967, however, in anewer to issue No.4, the trial Court held that it is not proved by the , l plaintiff that she had allowed Firtu Singh and Umendbai to reside in the suit house in the year 1982 and while answering issues No.5, 6 and 7, the trifal Court held that on preponderance of probabilities, it is proved that Ram Krishna had granted the land to Firtu Singh and the said Firtu Singh has perfected his title by adverse possession and that Umendbai had executed a Will in favour of the defendant. The trial Court also found the suit to be barred by limitation. a 7. The plaintiff preferred first appeal under Section 96 of the Code of Civil Procedure. The first appellate Court, by the impugned judgment and decree, has allowed the appeal and has thus decreed the suit. The first. appellate Court decided all material issues in favour of the plaintiff and has held, on appreciation of evidence, that the defendant‘s Case of perfection of title by adverse possession is not proved. 8. The instant second appeal has been admitted on the following a substantial question of law: “Whether the finding of first appellate Court reversing the finding arrived at by the trial court regarding adverse possession is perverse?” 9. Learned counsel formthe appellant has argued that the first appellate Court has committed a seriOUS error of law by interfering 'with the reasoned judgment and decree of the trial Court and while doing so / l , the first appellate Court has travelled beyond its jurisdiction under t Section 96 of the Code of Civil Procedure. Learned counsel further subm‘its that a finding of fact recorded by the trial Court should not have} been interfered with by the first appellate Court as there is ’ enough evidence on record to hold that the defendant/appellant has perfected his title by adverse possession. Learned counsel for the appellant has relied on Santosh Hazari vs. Purushottam Tiwari l (Deceased) by LRs., (2001) 3 SCC 179, Brihanmumbai Mahanagar Palik‘a and another vs. Akruti Nirman (P) Ltd. and another, (2008) 3 SCC 13; Bondar Singh and others vs. Nihal Singh and others, (2003) 4 SCC 161 and M. Durai vs. Muthu and others, (2007) 3 SCC 114. ‘ 10. ‘Per contra, it has been put-forth by learned counsel for the respondent that no question of law arises for determination in this appeal and that a .finding of fact recorded by the first appellate Court is final and binding between the parties and no interference can be made to unsettle the said finding in exercise of powers underSection 100 of the Code of Civil Procedure. He has argued that plea of adverse possession has not been specifically raised in the written statement and that’it has also not been established by leading evidence in this regard. Learned counsel for the respondent has relied on Thakur Kishan Singh (Dead) vs. Arvind Kumar, (1994) 6 SCC 591, Gaya ii Parshad Dikshit vs. Dr. Nirmal Chander and another, (1 984) 2 SCC l 9 l 286, Annakili vs. A. Vedanayagam & Ors., AIR 2008 SC 346 and i Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale & / l Ors., 2009 AIR scw 3592. 11. To answer the question of Iaw formulated by this Court, it would be apt to refer to the Iaw laid down by the Supreme Court in relation to the eSSential ingredients of pleading and proof of adverse possession, r the nature of finding with regard thereto and the scope of interference in second appeal. 12. ‘In the matter of Thakur Kishan Singh (Dead) vs. Arvind Kumar(supra), the Supreme Court has held in paragraph 5 thus “5.“ As regards adverse possession, it was not disputed V l t t i i even by the trial court that”the“appé/Iaiit entered into possession over the land in dispute under a licence from the‘respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appe/Iant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established ‘by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in” converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact‘that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument; could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the 1 evidence of the Commissioner who prepared the map. We are afraid that such .an exercise is not permissible even in second appeal, What to say of the'jur‘lsdiction' exercised by this Court under Article 136 of'the Constitution. Further, kwe do not find that the appellant has suffered any injustice ! Which requires to be remedied by this Court.” : 13. In Annakili vs. A. ‘Vedanayagam & Ors. (supra), the Supreme Court has held in paragraph 22 thus: v “22. Claim by adverse possession has two e/ements: (1) i the possession of the defendant should become adverse to i the plaintiff; and (2) the defendant must continue to remain ‘ in possession for a period of 12 years thereafter. Animus ~ possidendi as is wel/ known is a requisite ingredient of ‘ adverse possession. It is now a well settled principle of law that mere possession’of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same . must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more. than 12 years without anything more do not ripen into a tit/e.” 14. The law in this regard has thus been settled bfthe Supreme Court in the above mentioned cases. The question as to the perversity of the findings recorded by the first appeliate Court and as to whether the hrst appeiiate Court has committed an illegality by reversing the judgment and decree passed by the trial Court are required to be examined in the light of the law laid down by the Supreme Court. 15. A very weak and feeble plea regarding adverse possession has been made in paragraph 1‘6(b) of the written statement to the effect that Firtu Singh, having remained’in"p0§sess’ion‘of the suit premises for l l more than 12 years, had become Bhumiswami. Further, in paragraph l 16(c) of the written statement, the defendant stated that the plaintiff's suit is barred by limitation. Except these few lines, the defendant has not made any other averment claiming perfection of title by adverse possession. There is no pleading as to when the possession of Firtu Singit became adverse to the true owner. Likewise, thefe is no averrnent that the possession of Firtu Singh was open and ho'stiie to the it‘nowledge of the true owner and that the said Firtu Singh or for that matter the present defendant has openly started claiming ownership before the whole world and yet the plaintiff did not initiate any action for 12 years. l Whatever little plea of acquisition of Bhumiswami right by Firtu Singh made in paragraph 16(b) of the written statement aiso has not been furtherelaborated to claim benefit of tacking by the present defendant to say that he‘continues to remain in possession in the same manner as Firtu Singh was having and thus he also has perfected histitle by adverse possession. 16. When the above referred weak pteading with regard to adverse possession is considered and appreciated in the light oijinding of fact recorded by the first appellate Court and on independent appreciation aiso, it appears that the statement of P.W.-3 Guljar Singh (husband of the plaintiff Rukmani Bai) when read along with the statement of P.W.— 1 Punuram together with mass of documentary evidence like Ex.P—3 the registered sale—deed, Ex.P-4 record of rights, Ex.P—5 maintenance ‘ khasra, EXP—7 Kistbandi Khatauni, Ex.P-8 municipal record, EXP-12 ,. receipt of payment of property-tax, Ex.P-15 application by the plaintiff to the Electricity Board for disconnection of electricity supply, EXP-16 sanction of building plan in‘favour ‘of‘the plaintiff and Ek.P-18 map sanctioned for new construction etc. are considered in its true g0 t 'V\ 1 ‘ ‘ v 18. On examination of evidence‘,’ this‘l’Court i’s‘satisfied that the learned first appellate Court has not committed any error of jurisdiction while setting aside the findings, judgment and decree of the trial Court. The first appellate Court, in exercise of powers under Section 96 of the Code of Civil Procedure is entitled to re—appreciate the evidence and reach to its conclusion when, according to the first appellate Court, the. trial Court has committed a serious error by recording a finding which is \ not born out upon reading of the pleading ‘a‘n‘d evidence led by the- iv ‘i i parties. i i i i . ence to prove adverse possession. It is settled law perspective and given its true legal effect, it clearly appears that the land belongs to the plaintiff and she has been claiming ownership to the property all through out and contrary to this there is practically no r assertion by the defendant at any point of time before any authbrity or in the locality that he is the owner of the property. %\ 17. The defendant’s witnesses, namely, D.W.-3 Paltan Singh (defendant himself) and D.W.—2 Meghnath have made oral statements that the land belonged to Ram Krishna who‘had given it to‘ Firtu Singh and thereafter Firtu Singh had recognised the defendant as his co- owner. These evidence lack in absolute terms the requirement of law as regards the evid that mere long possession is not converted into an adverse possession because the plaintiff does not object to the possession of the defendant. (é 19. The substantial question of law is, thus, answered against the appellant. The second appeal fails and is hereby dismissed. There shall be no order as to costs. 20. A decree be drawn up accordingly.