It'-tiii: sss«n>.^»iE3 syja fcLLRO 3SC3E1 SE^i' ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. Ac.^, /2007 APPELLANT Baldev Sahu S/o. Dhaniram tet vkai-t' 4r7y&' •'— Sahu,^ R/o. Village- 6udi, Tahsil Seepat, District- Bilaspur (C.6.) VERSUS RESPONDENTS ^•^^^•^ ^-c€.. \-or ...^%^ €^ T </<'<^ ^'.-•^- ^".A.- •^- /'", ^"' .^ <,:/ ^/^' \^.~' ^^" /1>N." 2. Rsim Kumar Sharma S/o. Gangaprasad Sharma, aged / about 60 years, R/o. Village- Danganiya Tahsil- Seepat, District- Bilaspur (C.G.) Bharatlal S/o. Gangaprasad Sharma, aged about 60 years, R/o. Village- Danganiya, presently resident of Imlipara, Near Sharma floor-mill, Bus Stand Bilaspur- (C.6.) iolchand S/o. Panchram '' 4. G I^Cllhotelal S/o. Ramadhin 3-c- ^^ Patanwar 5. c^'^meram S/o. ^ila, aged about 40 years, Respondent No. 3 to 5 are R/o. Village Uslapur, Tahsil Mastun' (Seepat), Distnct (£) 6. Bilaspur (C.6.) State of Chhattisgarh, Through;- Collector, bistrict- Bilaspur (C.6.) Cc'-te-^- \t«- <»?f"-<-A •<^> - 2^lo( APPEAL UNDER SECTION 100 OF CODE OF CIVIL C7 i£% 'SSi>. ^^S5;^®;u.?®i?l""^;^^^'^ IS^S^'^':s;i^S\:.^w:S^^ i^S^'-'^- fflGH COURT OF CHHATTISGARH AT BDASPUR S.B: Hon'ble Shri Prashant Kumar MNira APPELLANT Second Appeal No. 468/2007 : BaIdevSahu RESPONDENTS : Versus Ram Kumar Sharma and others Appearance: Shri Ajit Singh, counsel for the appellant. Shri Ajay Dwivedi, Deputy Govemment Advocate for the State. ORAL ORDER (30.062010) The instaht appeal has been preferred by the plaintifC whose suit for declaration oftitle, possession and pennanent injunction was decreed by the Trial Court. However, on appeal by the defendanl, the First Appellate Court has reversed the judgment and decree of the Trial Court and thus the plaintifTs suit stands dismissed. (2) The plaintifif claimed that he has purchased Ihe property from defendant No.2 by registered sale-deed dated 22/06/1981 and remained in possession to the knowledge of the defendant and this possession was peacefal, open and hostile io the knowledge of the \ defendants and thus he has perfected the title by adverse possession. \ The plaintiff further stoted that on the aiylication °fdefendant No. 1, \the Naib Tahsildar wrongly mutated his name and the plaintifFs :t~^~"'^ ^^ appeal was dismissed. The defendants No.3 to 5 interfered with his possession, therefore the present suit was filed. (3) The defendants No.l and 3 to 5 filed common written statement aad denied the plaintiffs claim. According to them, the suit land belongs to defendant No. 1 and tiie defendant No.2 have no right, title or interest in the suit property as the suit property is selfacquired property of the defendant No.l, It was further stated by ftese defendants that the defendant No.2 had no authority to execute a sale- deed in favour ofthe plaintiff. (4) The defendant No.2 supported the case ofthe plaintiff. (5) The Trial Court found that the defendant No.2 had no authority to execute the sale-deed in favour of the plaintiflC as he had never received the property in partition and that the plaintiffdid not acquire any title in pursuance to the sale-deed dated 22/06/1981. However, the Trial Court found that the plaintiff has perfected his title by adverse possession. (6) In the appeal prefen-ed by the defendant No.2, the First Appellate Court has set aside the judgment and decree of the Trial Court and has allowed the first appeal. The AppeUate Court found that the plaintiffhas not preferred any cross appeal or cross objection to assail the findings recorded against him by the Trial Court and thus the said findings on issue No.l, 2 and 3 against the plaintiff has become final. Thus, the only issue for consideration before First 1j; -.^ J ,. '^--'".^" -•2- Appellate Court was that whether the finding recorded by the Trial Court with regard to the plaintiffhaving perfected tfae title by adverse possession is law full or not. (7) The First Appellate Court by detailed diseussion and analysis ofthe evidence available on record and fhe principles ofprescription of title by adverse possession has come to a conclusion that the plaintififhas utterly failed to prove the plea ofadverse possession. (8) On perosal ofthe plaint, it would appear tfaat the plaintififhas stated that he perfected his title after having purchased land from defendant No.2 by sale-deed dated 22/06/1981. (9) Apart &om these few lines which were pleaded as para 4-A in the plaint by way ofamendment, the plaintiflFhas not stated anything as to how on execution of sale-deed by defendant No.2, he has perfected his title against the defendantNo.l. There is no pleading as to on which date he dispossessed the defendant No.l to the knowledge of the said defendant and that his possession was peaceful, hostile and un-intermpted as against defendant No.l. Contrary to this there is avenrient ia the plaint that the defendant No.l was objecting to the plaintiffs right over the property meaning thereby that plaintiflPs possession was not peacefal. Leamed First Appellate Court has also found fhat to begin with pIaintifFs possession was pennissive and was not adverse. In view ofthis it was all the more necessary for the plaintifFto have specifically stated as to ^r"" -~'>,¥i'^ ^^.^ •/• ^ from which date his possession on the suit land became adverse to the defendantNo.l. (10) In the matter of Thakur Kishan Singh Vs. Arvind Kumar reported in (1994) 6 SCC 591, the Hon'ble Supreme Court has observed in para 5 as under:- "As regards advave possession, U was not dvy/uted even. by the trial court that the eypeOant entered mto possesswn over the land in dispute unda' a Gcencefrom the respondent for purposes of brif^-kiln. The possession thus imtiaUy being permissh'e, the burden was heavy on the appeUtmt to estabKsh that it became adverse. A possessum of a co-owner or ofa Scensee orofan agent w a penmssive passessum to become adverse must be established by cogewt and convincing evidence to show hostSe animus and possession adverseto the knawledge ofreal owner. Merepossessionfor howsoever lengfh of time does not result in convertmg the permissive possession into adverse possesswn. Apartfrom it, theappeSate court has gone into detail and after considering the evidence on recordfound it as a. fact that the possession ofthe iyipellaiU was not adverse. The leamed counsel, despite streiwous argwnent, could not demoBsh the finding of adverse possession. Attemptwas made to rety on the evidence led on behay of the parties and the endence of the Commissioner who prepared the »wp. We are vfraid that such an exercise is iwt pernassible even in second appeal, what to say of the jwisdictwii exercised by this Court under Artide 136 ofthe Constitution. Further, we do notfind that the appeSant has suffered any mjus6ce which requires to be remediedby this Court. -.¥' l."\ it!i ^' t^O (11) In the matter of Annakfli Vs. A. Vedanayagam & Ors. reported in AIR (2008) SC 346, the Hon'ble Supreme Court has observed in para 22 as under:- Claim by adverse passession has two elemeitis : (1) the passession of the defendant should. become adverse to the plaintiff; and (2) the defendant must continue to remmn in possession for a period of 12 years thereafter. Aiumus possidendi as is weS known is a reqwsite ingre£ent of adverse passession. It is now a well settled princyfle oflaw that mere possession of the land would not ripen into possessmy litle for the said purpose, Possessor must have animus possidendi and hold the land advwse to the titte of the true owner. For the smd pwpose, nat onty animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. Be naist contlnue in said capacxty for the period prescribed under the timitatwn Act. Mere longpossession, it is trite, for a perwd ofmore than 12 years without anj^hing more <fo not ripen into a title." (12) In the matter of Gaya Parshad Diteshit Vs. Dr. Ninnal Chander And Another rqwrted in (1984) 2 SCC 286 and in the matter of Vishwanatti Bapurab Sabale Vs. Shalhubai Nagappa Sabale & Ors. reported in (2009) AIR SCW 3592, the Hon'ble Supreme Court has laid down principles and Ifae nature of evidence required to be proved in a case based on plea ofadverse possession. (13) In the present case, the plaintifiFhas failed to establish his case ^of adverse possession. The pleading and evidence on this aspect is K Vi ;a?s& fc :'^^\^ 'gj' A~ ^ rl not convincing. The finding recorded by the First Appellate Court on this issue does not appear to be perverse. (14) No substantial question of law arises for detennination in this appeal. (15) The Second Appeal fails and is hereby dismissed at the admission stage. Sd/- Prashant Kumar Mishra Judge i