IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.147 of 2011 Parmanand Thakur, Son of Late Gajbi Thakur, permanent R/o Village-Dumari khurd, P.S.- Parbatta, District- Khagariya. Present village-Tarawan, P.O.+P.S.-Siwan, District-Siwan. -Defendant –Appellant-Appellant. Versus Dr. P. Devi, Wife of Late Sarayu Thakur, Resident of Village- Rajendra Path Siwan(Chapra Road),P.O.- Tarawana Via-Siwan, P.S.-Siwan Town, District- Siwan. -Plaintiff-Respondent-Respondent. ---------------------------------- 12. 01.12.2011 Heard Mr. K.N.Singh the learned senior counsel appearing on behalf of the appellant and Mr. Basant Kumar Choudhary, the learned senior counsel appearing on behalf of the respondent. 1. The defendant who has lost in both the courts below has filed this second appeal. The suit has been filed by the plaintiff for declaration of title and recovery of possession against the defendant. 2. The plaintiff has clamed the title over the suit property on the basis of purchase by registered sale deed dated 23.11.1986. The necessity for filing the suit according to the plaintiff has arisen only because the defendant who had been permitted by the plaintiff to 2 look after the land and develop the same for cultivation has refused to vacate the property and give vacant possession to the plaintiff. The defendant in his turn has come out with the case that the plaintiff initially permitted him to develop the land and look after the same with the promise to give him about 15 kathas of land in lieu of his services. It is the further case of the defendant that the plaintiff did not fulfill the promise and did not execute the requisite transfer deed for the promised land although the defendant had constructed his house over the land and is residing therein. 3. Both the courts below after considering the evidence of the parties in view of the pleadings and rival submissions have disbelieved the case of the defendant and have passed the decree as prayed for by the plaintiff. 4. The learned senior counsel appearing in support of this appeal has contended that the issue of adverse possession was necessary to be framed and decided by both the courts below which they have failed to do and as such their judgments and decrees are vitiated in law. It has been urged by the learned senior 3 counsel that from the facts appearing in the written statement it is clear that the defendant has been in possession over the suit land and initially although there was the promise by the plaintiff to execute the transfer deed in his favour with regard to about 15 kathas of land but even in absence of such deed, the defendant continued in possession and his long possession over the suit land is established. It is also the submission of the learned senior counsel that the plaintiff in her deposition as P.W.7 has herself accepted that the defendants have been in forcible possession over the suit land from the year 1995. It has been also the submission of the learned senior counsel that although the plea of adverse possession has not been taken in the written statement but still from the averments made therein if it appears that the necessary facts are present then the issue could have been raised and should have been considered by the courts below. In support of his contention that the issue of adverse possession can be raised for the first time at the second appellate stage, the learned senior counsel has placed reliance upon the two decisions of this Court reported in 2003(1)PLJR 305 and 2004 (3) PLJR 197. 4 Further in order to buttress his submission with regard to adverse possession, the learned senior counsel has placed reliance upon the decision of the apex court reported in AIR 1970 SC 1778. However, during the course of submission, the learned counsel has not disputed the fact that till 2003-2004, the defendant was labouring under the impression that the plaintiffs would fulfill the promise made by her and execute a transfer deed in favour of the defendant with regard to the promised land including the suit land. 5. Per contra, the learned senior counsel appearing on behalf of the respondent has firstly submitted that the issue of adverse possession being primarily a question of fact cannot be allowed to be raised at the second appellate stage. He has further urged that even otherwise also for entertaining a plea of adverse possession, there must be a pleading in that regard followed by evidence in support of that pleading. It has been pointed out by the learned senior counsel that the defendant has not raised the plea of acquisition of title by prescription over the suit property in his written statement and in his deposition also he has nowhere 5 asserted to have acquired such title by adverse possession. It has also been contended that for successfully establishing the acquisition of title by adverse possession, the requisite animus (intention) must be apparent from the pleadings and evidence available on the records and as there was no such material, the courts below have rightly not framed the said issue of adverse possession and the defendant cannot be permitted to fill up the lacuna and assail the impugned judgments on that basis at the second appellate stage. 6. After perusing the impugned judgments of both the courts below and considering the rival submissions, it is clear that the issue of adverse possession has not been framed in the suit. It also does not appear from the judgment of the appellate court below that the defendant has raised any grievance regarding non-framing of the issue of adverse possession by the trial court. Further, it also appears that there was no specific pleading by the defendant in this regard averring crucial facts necessary to constitute adverse possession. It is true that an issue by way of question of law can be raised even at a second appellate stage but 6 this can be done only when there is sufficient pleading and evidence in support of that issue. The decision of the apex court reported in AIR 1970 SC 1778, relied upon on behalf of the appellants, has been rendered in entirely different setting of facts where the possession continued without interruption even after the grant was found invalid. The ratio of that decision has been later on considered in the decision reported in AIR 1997 SC 2930 and the principle of law in this regard has been elaborately explained emphasizing the classical requirement of adverse possession to be nec vi, nec clam, nec precario. From the facts appearing in the judgments of both the courts below as well as from the findings recorded therein it is established that the defendant has been entrusted by the plaintiff to look after the suit land which had been purchased by her and there is no denial of this fact by the defendant. As such, the plea of the defendant that there was a promise by the plaintiff to execute a transfer deed with regard to the suit land in lieu of the services rendered by him will not by itself be sufficient to sustain his claim of acquisition of title by adverse possession. 7 7. The issues arising between the parties have been settled by concurrent finding of facts. There is no substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Nitesh ( V. Nath, J.)