^ ^' 4- IN THE HON'BLE HIGtLCOURT OF CHHATTISGARH, AT BILASPUR SECOND APPEAL No./-^ /2006 UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE 1908 APPELLANT/ <6EFENDANT RESPONDENTS PLAINTIFFS : ^-Sadaram, S/o. Ramji kalar, aged about 42 years, R/o. Village- Salehbhatti, Tahsil-Mohala, District- Rajnandgaon (C.G.). VERSUS Jhaduram, S/o. Balaram Kalar, 1. ^' ^' • /^' y'y^' <4/ •CC31 CLS^ VED-COPY J^!^°i to^.GJBll.^^B Respondents/ Defendants aged about 40 years, R/o. Sitagaon, Tahsil-Mohala, Distt. Rajnandgaon (C.G.) (A) Shantfl. Bai, W/o. Bankerao, aged about 60 years. _f<aLtbai' •5'r- 6-^(B) ^K^iBai^) D/o. Bankerao, aged ^Hv- about 32 years. Jfi} Chitran Bai, D/o. Bankerao, aged about 24 years. (D) Surtilal, S/o. Bankerao, aged <^:'" about 28 years. (E) Mohan, S/o. Bankerao, aged ^' about 26 years. All are resident of Village- Salehbhatti, Tehsil-Mohala, Distt. Rajnandgaon (C.G.) 3. Atmaram, S/o. Dhaduram Kalar, aged about 42 years, R/o. Village Muramgaon, Tehsil-Dhanora, Distt. Gadhchirolli (Maharashtra). 4, Varlival, S/o. Ramji, aged about 50 years. ,5. Asharam, S/o. Ramji, aged about 40 years. ^' 6. ^""; 7- Y\ -\.' 1 8. 9. X" 10. Rajaram, S/o. Ramji, aged about 36 years. Dayaram, S/o. Ramji, aged about 34 years. Maniram, S/o. Ramji, aged about 30 years. Chain Bai, D/o. Ramji, W/o. Shobha, aged about 42 years. Bachela Bai, D/o. Ramji, aged about 28 years. All are resident of Village- Salehbhatti, Tahsil-Mohala, District-Rajnandgaon (C.G.). State of Chhattisgarh, Through Collector -- Rajnandgaon, Distt.Rajnandgaon (C.G.). Rambha Bai^-shown as Appellant No.l in the impugned ied during pendency of First Appeal L.R's. already on record. 11. HIGH COURTO_FCHHATT3SGARH AT APPEAL NQ,1530F_200g '^ Vs. AND ^ FOR ON /'?, 2006 Sd/- Dhirendra Mishra Judge HLGH COURT QFCHHATTISGARH AT BILASPUR Second AppeaS No. 153 of 2006 Appellant Sadaram Vs Respondent Jhaduram and others Appeiiant by Shri PX.Verma, Sr. Advocate wth Shri Sumit Verma, Advocate. JUDG^ ,T N»—^ (Deiiveredon /z- C-2QQ6} Dhirendra Mishra. J Heard on admission. 2. The instant second appeal is dlrected agalnst the judgment and decree dated 27.12.2005 passed by the Court of District Judge, Rajnandgaon in Civil Appeal No. 51-A/2000 and by which the iearned !ower appeilate Court has dismissed the appeal preferred by the appeliant against the judgment and decree dated 05th Juiy 2000 passed by iearned Civil Judge, Ciass-1, Ambagarh Chowki, Distt-Rajnandgaon and the decree in favour of the respondents/plaintiffs was affirmed. (Parties hereinafter shali be referred to as per thelr description before thetriaiCourt). 3. Plaintiffs fi!ed a suit for deciaration of tit!e and possession stating therein that the plaintiffs and defendants No. 1 (a) to h and defendant No. 2 are reiatives. The suit !and was the propeity of one Sitaram who had three namely Masibai, Jasibai and Lasiabai. PIaintiffs No. 1 and 2 are the sons of Masibai whereas piaintiff No. 3 Aatmaram is the son of Jaslbai and the originai defendant No. 1 Ramji was husband of Laslabai. Sitaram in the year 1960 and his daughters have aiso died. Sadaram (defendant No. 2) Is son of Ramji. Defendant No. 2 after the death of his father Ramji got his name and his brother Ramlai's narne recorded in the revenue record. Ramlai died after some time and after the death of Ramlai, the land is recorded in the exciusive name of Sadaram, though defendants No. 1 and 2 are jointly entitied for only 1/3 share and p!aintiffs are entitled for one share each of the suit land. It was further pleaded that after the death of Sitaram, his three daughters jointly inherited hls property, however, the plaintiffs permllted the defendants 'to cuitivate the suit land on their behalf and the expenditure towards cuitivation was borne by ai! of them. The Eand was illegaliy recorded in the name of Sadaram by the revenue authorities and the order dated 23/10/1989 by Sub Divisionai Officer Is void. Hence the plaintiffs claimed for 2/3 share and aiso made a prayer for possesslon over their share of the iand. 4. in the joint written statement defendants No. 1 and 2 stated that Masibai and Jasibai dled during the iifetime of Sitaram. Sitaram became biind 10-12 years prior to his death and during this period defendant No. 2 brought him to his house and looked after him. In the !ast years of his iife Sitaram executed a in favour of defendant No. 2 and his brother Ramlal and on the of that the iands were recorded in their narnes In the revenue record and t¥0years the above mutation Sitaram dled. it is further averred that defendant No.2 Sadaram carne into possession over the suit iand as titie holder during the iifetime of Sitaram and since then he is cultivating the same as o\¥ner and the pSaintiffs did not have any Interest thereafter. 5. On the basis of pieadlngs of the respective parties, iearned Clvl! Judge framed Issues and after recording the statements of the witnesses, decreed the suit with a finding that the suit iand bearing Khasra No. 67/1 was the property of Sitaram, the piaintiffs are entitied for 2/3 share, mutation in the name of defendant No. 2 and his brother Ramla! is iilegai, the suit is not by law of llmitation, defendants have not perfected their titie by adverse possession and that Sitaram did not execute any deed in favour of defendant No. 2. However, issue No. 8 was decided against the plaintiffs and it was held that the plaintiffs have failed to prove that the defendants were in possession of the suit iand wlth their permission. Accordlngly, the sult was decreed to the effect that piaintiffs No. 1 & 2 jolntly and plalntifr No, 3 are entitied for 1/3 share each over the suit land and they are entitled for getting thelr share partitioned and obtain possesslon over the same. ^^&sySSKWS'i^^:::. ^^:I^;v^s^l^ .^ V- 6. The defendants preferred civi! appeai against the above judgment and decree. However, the appea! preferred by the defendants v^as dismissed by the lower appellate Court with an identica! finding. 7. This second appeai has been preferred by the appellant/defendant on the following so!e substantia! question of iaw; I "Whether the finding of lower Court in holding that ] I the defendants and their pr^ecessors in titfe had not acqulred \ I exciusive titie over the suit prop^rty by posseasion, te | pen/erseas weil as erroneous in iaw?" 8. Learned counse! for the appeiiant submltted that from the evidence avajlable cn record it is cieariy established that the other co-owners i.e. plaintiffs had been excjuded from the possession over the sult !and much prior to 12 years before the institution of the suit and therefore the defendants and their predecessors in titie had acquired exciusive tltie over the suit property by adverse possession and the suit was hopeiessiy barred by time. He further subrnitted that both the Courts beiow have erroneousiy disregarded this and therefore theirfinding is pervrerse and i!!egai. 9. I have heard iearned counsel for the appeiiant. 10. From the pieadings of the respective partles it Is not in dispute that the suit property originaliy belonged to Sitaram and the piaintiffs are the sons of his two daughters and as such are entitled for 1/3 share each as cla.imed by thern. The onjy question to be decided in this case is - whether both the Courts beiow were justified in ignonng the claim of the defendants that they and their predecessors In titie v^ere In exciusive possession of the suit iand to the exiusion of the real owner and as such perfected their tltle through adverse possession and the suit was barred by !aw of iimitation? 11. it Is settled !aw that a person vvho clajms adverse possesslon is required to 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 iong his possession has continued, and (e) his possession was open and undisturbed. A person pieadlng adverse possession has no equities in hls favour. Since he is trying to defeat the rights of the true owner, it is for him to cleariy plead and establish a!l facts necessary to estabilsh his adverse possessson. 12. in the instant case it is not in dispute that the pialntiffs and the defendants are co-owners and the case of the defendants before the trial Court was based. cn gift deed executed by late Sitaram during his lifetime. 13. it is aiso settied iaw that the p!ea of title and adverse possession are mutuaily Inconsistent and the does not begin to operate untll the former is renounced. !n the Instant case, as already mentloned the case ofthe defendants is based on a gift deed purportediy executed by the original owner Sltaram in favour of defendant No. 2 and Ramlai, both the Courts.beiow have recorded a flnding of fact that the deed in question reiied upon by the defendants does not confer any right or titie to the defendants. Once the defendants who are co- owners In a sult for partition and possesslon, faii to estabiish their title to the suit land, the plaintiffs cannot be unsuited on the ground that the defendants are in exciusive possession of the suit land for more than 12 years and as such have perfected their tit!e through adverse possession and the suit of the plaintiffs Is barred by law of llmitatlon. 14. On the basis of aforesaid anaiysis, this Court Is of the consjdered view th.at both the Courts beiow have correctiy decreed the suit of the plaintiffs and no substantiai question of iaw as proposed by the appeiiant for of this appeai. The appeal Is devold of and the deserves to be dismjssed at the rnotion stage Itself and Is accordingly dlssriissed. Sd/- Dhirendra Mishra Judge