1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1332 OF 2009 WITH CIVIL APPLICATION NO. 5916 OF 2009 1 Subhan s/o Kachru Patel, Age 40 years, Occ. Business, 2 Mohammad Sharif s/o Kachru Patel, Age 35 years, Occ. Labours 3 Sakinabee w/o Kacharu Patel, Age 51 years, Occ. Household All R/o. Plot No.B-7, Garkheda, ...Appellants Near Hanuman Mandir, Aurangabad (Ori. Defts 1 to 3) Versus Bharat s/o Gopalrao Deshmukh, Age 54 years, Occ. Agriculture, Resident of Pohner, Tq. Parali Vaijinath ...Respondent District Beed (Ori. Plaintiff.) ..... Mr. K.C. Sant, advocate for the appellants Mr. V.P. Latange, advocate for respondent ..... CORAM: R.G. KETKAR, J. DATED: 8TH DECEMBER, 2009 JUDGMENT:- 1 This appeal is preferred by the original defendants 1 to 3 challenging the judgment and decree dated March 26, 2009, passed 2 by the learned IIIrd Joint C.J.S.D. Aurangabad in Special Civil Suit No. 39 of 2000. The said suit was instituted by respondent original plaintiff for recovery of possession of plot bearing No. B-7 admeasuring 20 ft x 30 ft. in part of land survey No.1 having part of C.T.S. 15304 situate at Garkheda, Aurangabad, as more particularly described in para 1 of the plaint (for short "the suit property"). By the impugned judgment and decree, the learned trial Judge decreed the suit and directed the appellants to handover the peaceful possession of the suit property within two months from the date of order. The parties shall be referred as per their original status in the trial Court. The facts giving rise for filing of the present first appeal, are as follows:- 2 The plaintiff instituted the suit for recovery of possession of the suit property contending, interalia, that he had purchased the suit property by registered sale deed on September 23, 1981 from one Gangadhar Narayan Gaikwad for a consideration of Rs.400/-. He claims that from the date of purchase of the suit property, he is in possession of the suit property. The plaintiff came with a case that he has landed agricultural properties at his village Pohner. Because of illness of the plaintiff, since the last one year, he could not come to Aurangabad and when he came on January 14, 2008, he noticed that the defendants are trying to encroach upon the suit property. The plaintiff questioned them, whereupon it is alleged by the plaintiff that 3 the defendants threatened the plaintiff by knife saying that if he comes again on the suit property they will kill him. The plaintiff caused to issue notice through advocate on January 16, 2008, calling upon the defendants to remove the encroachment and hand over the possession to the plaintiff. Despite receipt of notice, the defendants did not hand over the possession and on the other hand erected tin shed over the suit property and started residing there. The plaintiff asserted that the defendants are in illegal possession over the suit property and consequently he instituted the suit for recovery of possession of the suit property as also for mesne profits. 3 The defendant Nos. 1 and 2 filed written statement at Exh. 12/B and contended that their mother i.e. defendant No.3 is the owner and in possession of the suit property. They denied execution of the sale deed by Gangadhar Narayan Gaikwad in favour of the plaintiff. They denied the title of the plaintiff by saying that he is not owner and possessor of the suit property. They specifically asserted in para 4 of the written statement that the mother of the defendant Nos. 1 and 2 is the owner and possessor of the suit property and consequently there is no question of encroaching upon the suit property by threatening the plaintiff. They further denied that they are in illegal possession of the suit property. They filed additional say and written statement, wherein it was asserted that the mother of defendant Nos. 1 and 2 is regularly 4 paying residential and service tax to the Municipal Corporation of the City of Aurangabad and that the plaintiff did not make mother of defendants 1 and 2, as party defendants. They reiterated that the mother of defendant Nos. 1 and 2 is owner of the suit property. It seems that pursuant to the order dated November 28, 2008, the defendants 1 and 2 amended the written statement. It was asserted that the notice dated July 12, 2002 under Section 45 of the Maharashtra Land Revenue Code, 1966 was given to their mother calling upon her to pay tax for the period from 1996 to 2002. The authority gave notice only after verifying the the possession of the mother of defendant Nos. 1 and 2. They also asserted that name of their mother Sakinabee is mentioned in the election card given by the Election Commission. Mother of defendants 1 and 2 is in possession of the documents showing her possession for more than 22 years. It was also asserted the "defendants possession is adverse to the true owner and the plaintiff has no right to file the present suit against the present defendants." It is relevant to note at this juncture that in the first place, the defendant Nos. 1 and 2 did not disclose the name of the true owner but merely averred that their possession is adverse to the true owner. Secondly, they specifically denied the ownership of the plaintiff and contended that the plaintiff has no right to file the present suit against them meaning thereby that the plaintiff has no right or interest in respect of the suit property. In short, they denied the 5 ownership and title of the plaintiff. 4 The defendant Nos. 1 to 3 filed amended written statement at Exh.45/B. In para 2 of the written statement, it was asserted that mother of defendants 1 and 2 is possessor of the land and they denied that the plaintiff is owner and possessor of the land on the basis of the sale deed executed by Gangadhar Narayan Gaikwad. The defendant Nos.1 and 2 further asserted that their mother is in possession of the suit property and they denied that the defendants tried to encroach upon the suit property. In para 9 of the additional say and written statement, they reiterated that mother is possessor of the suit property since birth of the defendant Nos. 1 and 2. In para 11 of the said written statement, the defendants asserted that they came alongwith mother to Aurangabad in the year 1985 and since then they are residing in the suit property. It was reiterated that their possession is adverse to the true owner and plaintiff has no right to file the present suit against the defendants. Once again they did not disclose the name of true owner. 5 Defendant No.3 filed separate written statement at Exh.84/B and further additional written statement wherein in para 8, it was asserted that the plaintiff was aware of the possession of the defendants from the year 1985. It is their case that the plaintiff asked the defendants to 6 look after and maintain the suit property, as he is not in need of the suit property. Thus, in the written statement filed by defendant No.3 in para 8, it was averred that the plaintiff asked the defendants to maintain the suit property. In para 10, the defendant No.3 asserted that she is living in the suit property with the consent of the plaintiff from the year 1985. 6 On the basis of the pleadings of the parties, learned trial Judge framed issues on September 12, 2008. In support of the plaintiff's claim the plaintiff filed his affidavit dated October 4, 2008 in lieu of examination in chief at Exh.18. He reiterated therein the contentions raised in the plaint. The plaintiff was cross examined by the defendants. 7 On behalf of the defendants, defendant No.2 Mohd. Sharif was examined as DW 1. He filed affidavit dated November 28, 2008 in lieu of examination in chief at Exh.42/C as DW 1. He reiterated that he alongwith his brother and mother started residing in the suit property since 1985. They were continuously occupying the suit property without anybody's obstructions. He reiterated that the contentions about receipt of the notice under Section 45 of the Maharashtra Land Revenue Code, 1966, dated July 12, 2002; payment of tax to the Municipal Corporation; name of his mother in the voters list prior to 7 1996 as also Identity card issued by the Election Commission. In para 5 it was asserted that they were not aware as to who is owner of the suit property. The defendants are in possession of the suit property for last 22 years without obstruction, peacefully and continuously. In the cross examination, he replied that he is not aware as to whether the plaintiff purchased the suit property from Gangadhar Gaikwad in the year 1981. He did not make any inquiry as to who is the owner of the suit property and also did not verify the title documents of the suit property. In the cross examination, he further asserted that they have purchased the suit property from the person who is dead and that he is not aware as to when the said person died and for what consideration they had purchased the suit property. He also admitted that he is not aware as to where their vendor was residing and that while purchasing the suit property they did not take search of the title deeds. 8 The defendants also examined defendant No.3 Sakinabee as DW 2 at Exh 54. In the cross examination, she admitted that she was not consulted before preparing the written statement. She did not verify the title deeds of the suit property till filing of the suit property. She was not aware about ownership of the suit property till filing of the suit. 9 On the basis of the material on record, the learned trial Judge 8 came to the conclusion that the plaintiff has established his title over the suit property and the defendants have encroached upon the suit property. Accordingly he decreed the suit and directed the defendants Nos.1 to 3 to handover the peaceful possession of the suit property within two months from the date of order. He further ordered inquiry into future mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908 and ordered the defendants 1 to 3 to pay costs of the suit and to bear their own costs. 10 The appeal came up for admission before this Court and on July, 2, 2009, this Court called for record and proceeding of the case. Counsel for the parties agreed to argue the matter finally at admission stage and accordingly the court ordered disposal of the appeal at admission stage. In view of this appeal is admitted. Learned counsel for the respondent original plaintiff waives service. By consent, the appeal is taken up for final hearing. 11 Shri K. C. Sant, learned counsel for the defendants strenuously contended that the learned trial Judge committed serious error in decreeing the suit. The learned trial Judge has not properly considered the oral as well as documentary evidence on record. The learned Trial Judge did not give proper opportunity to defend the case and consequently the decree passed is against the principles of natural 9 justice. He also submitted that the defendants are in possession of the suit property since 1985 and suit was instituted on January 29, 2008. The suit, according to the learned counsel, was hopelessly time barred. He further submitted that right from 1985 onwards the defendants are in peaceful possession of the suit property and that they have perfected their title over the suit property by adverse possession. The learned trial Judge committed error in holding that the plea of defendant Nos. 1 and 2 on one hand and plea of defendant No. 3 on the other hand, is contradictory. The learned counsel for the defendants also urged that to the knowledge of the plaintiff the defendants are continuously in possession and therefore, the learned trial Judge ought to have dismissed the suit. 12 On the other hand, learned counsel for the plaintiff supported the impugned judgment and decree. 13 As set out earlier, in the written statement filed by defendant Nos. 1 and 2, initially they pleaded that their mother i.e. defendant No. 3 is the owner of the suit property. Subsequently, they changed the stand and pleaded that the mother is in possession of the suit property. They asserted that they are in possession of the suit property for more than 22 years and their possession is adverse to the true owner and the plaintiff has no right to institute the present suit. As 10 observed earlier, they did not even disclose the name of the true owner. They also denied the ownership of the plaintiff. 14 In so far as the defendant No.3 is concerned, in her separate written statement she came out with a case that the plaintiff asked the defendants to maintain the suit property and with the plaintiff’s consent, the defendants are living in the suit property from 1985. In the oral evidence of the defendants they felt ignorance about ownership of the suit property. At one stage feeble attempt was made by D.W.1 Mohd. Sharif while deposing that they have purchased the suit property from a person who is no more. He could not tell even the name of the person from whom they purchased the suit property. He was not even aware as to consideration paid for purchasing the suit property. Considering the pleading of the defendants as well as their evidence, it is clear that they have not established their ownership on the basis of any title deed. In so far as the plea of adverse possession is concerned, the defendant 1 and 2 contended that their mother is owner, which plea was subsequently changed by contending that their mother is in possession of the suit property. In the oral evidence, an attempt was made to establish that they have purchased the suit property. In so far as the defendant No.3 is concerned, she pleaded that with the permission of the plaintiff defendants are residing in the suit property. 11 15 The defendants have neither established their title on the basis of any documents nor perfected their title by adverse possession. Before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised. It is a cardinal principle that a person who claims adverse possession must plead to that effect and must show on what date he came into possession, what was the nature of his possession, whether the fact of his adverse possession was known to the owner and what was the period of such adverse possession. The Principle of law as to what is necessary to constitute adverse possession is well settled and the principle is that such possession must be “adequate in continuity, in publicity, and in extent, to show that it is possession adverse to the true owner. In other words, there must be a clear assertion of a hostile title.” (please see Yesu Sadhu Nimagre and others Vs. Kundalika Babaji Nimagre and Anr, 1977 Mh.L.J. 130). 16 In the instant case, the defendants have neither pleaded nor established that they become owners by adverse possession. I do not find any error committed by the learned trial Judge while decreeing the suit. The defendants have absolutely no semblance of right, title or interest in respect of the suit property. They are rank trespassers. There is no substance in any of the submissions advanced on behalf 12 of the defendants. In the result, the appeal is devoid of any substance and deserves to be dismissed. Hence the following order;- O R D E R The appeal is dismissed and the judgment and decree passed by the learned trial Judge of March 26, 2009 is confirmed. In view of dismissal of first appeal, civil application No. 5916 of 2009 does not survive and the same stands dismissed. *****