1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.123 OF 2009 WITH CIVIL APPLICATION NO. 1641 OF 2009 Gangubai Shenfadu Patil, Age: 80 years, Occ: Agril., R/o. Pimpri Tq. Chopda, Dist. Jalgaon, and others. .. Appellants Versus Chavdas Kisan Patil, Age: 50 years, Occ: Agri. R/o. Pimpri Tq. Chopda, District Jalgaon and another. .. Respondents ... Mr. M.N. Navandar, Advocate for the appellants. Mr. Girish Rane, Advocate for respondent No. 1. Respondent No.2 : Abated. ... CORAM : K.K. TATED, J. DATE : 15th JULY, 2009. PER COURT : 1. Heard learned Counsel for the appellants and learned Counsel for respondent No. 1. 2. Present Second Appeal is preferred by the 2 original defendant Nos. 1 to 7 against the judgment and decree dated 19-12-2003 passed by the District Judge-1, Amalner in R.C.A. No. 20/2003 arising out of the judgment and decree dated 22-07-2003 passed by the Civil Judge, Junior Division, Chopda in R.C.S. No. 73/2001. The appellants are the original defendant Nos. 1 to 7 and respondent No. 1 is the original plaintiff. Respondent No. 2 is the original defendant No. 8 against whom the present Second Appeal has abated as per order dated 26-06-2009. (Hereinafter parties are referred as they appear in the trial Court). 3. The plaintiff filed R.C.S. No.73/2001 in the Court of Civil Judge, J.D. Chopda for possession of agricultural land bearing Gat NO. 172 at village Pimpri, Taluka Chopda District Jalgaon. The plaintiff's contention is that the suit land Gat No. 172 admeasuring 36 Ares was in the joint cultivation of mother of plaintiff and the defendants. However, after the death of the 3 plaintiff's mother, the defendants occupied the entire suit land. Thereafter, the plaintiff repeatedly requested the defendants to hand over his share in the suit land. In spite of repeated requests, the defendants failed and neglected to do so and therefore, the plaintiff issued a legal notice calling upon the defendants to hand over his share in the suit land Gat No. 172. Thereafter, the plaintiff filed present suit for possession of 50% share from Gat No. 172. 4. The defendants appeared in the said suit and filed their Written Statement dated 12-02-2002 and denied the plaintiff's claim for possession of 50% share in the suit property. The defendants contended that they were in possession of the suit property for last several years. Not only that, they are cultivating the suit land. It is their case that Tejabai Kisan Patil executed release deed in the year 1975 in favour of Shenfadu Krishna Patil and since then they are in possession of the suit property. 4 Defendants' further contended that on the basis of release deed, appropriate entries and changes were made in the revenue record. It is submitted that on the basis of release deed, revenue authorities issued extract of Village Form No. 6 showing that Tejabai Kisan Patil released her right, title and interest in respect of the suit property in their favour. Copy of the extract of Village Form No. 6 produced by the defendants on record at Exhibit-35 and 38. On the basis of these two documents, the defendants contended that they are in exclusive possession of the suit property for last several years and therefore, they acquired title by adverse possession. It is the case of the defendants in their W.S. dated 12-02-2002 that with the consent of Tejabai Kisan Patil, they are cultivating the suit property. Even after the death of Tejabai, in the year 1993, after the death of Shenfadu Patil in the year 1991, the defendants are in possession and cultivation of the suit property 5 with the consent of the heirs of Smt. Tejabai. On the basis of these facts, the defendants contended that the suit filed by the plaintiff was liable to be dismissed. 5. On the basis of these submissions of both the Counsel, the trial Court framed the following issues. ISSUES FINDINGS (1) What is nature of 18 R land in gat suit land.? no.172 was sole property of Tejasbai, mother of the plaintiff. (2) Whether defendants prove their possession over suit land? .. Affirmative (3) Whether suit land is open for partition? .. Negative (4) Whether plaintiff has share in the suit land; if yes to what extent.? .. Negative (5) Is plaintiff entitled for partition and separate possession with mesne profit? .. Negative 6 (6) What order and decree.? As per final order. 6. The trial Court held that the defendants proved their adverse possession over the suit property and therefore, the plaintiff was not entitled to any relief in R.C.S. No. 73/2001. The trial Court considered the crop statement right from 1975-76 onwards till 2001-02 shown below Exhibit - 29, 29-A and 29-B and held that the defendants proved their exclusive right and possession in respect of the suit property. On the basis of revenue record, the trial Court held that the defendants proved their adverse possession in respect of the suit land and dismissed the plaintiff's suit. 7. The plaintiff, being aggrieved by the said judgment and decree dated 22-07-2003, passed by the Civil Judge, J.D. Chopda, in R.C.S. No. 73/2001, preferred R.C.A. No. 20/2003 in the Court of District Judge-1, Amalner, on the ground that the trial Court erred in coming to 7 the conclusion that the defendants proved their adverse possession in respect of the suit land. The plaintiff also urged in appeal that the lower Court has erroneously misinterpreted provisions of Article 65 of the Limitation Act. Considering the submissions made by both the Counsel, the appellate Court framed point for determination thus : "Whether the defendants prove that they have become owner by adverse possession ?" The appellate Court held that the defendants failed to prove their adverse possession in respect of the suit property and appeal preferred by the plaintiff was allowed. The appellate Court directed the defendants to deliver possession of the suit property to the plaintiff within 60 days from the date of the decree. Against the said judgment and decree, the defendants preferred the present Second Appeal. 8. Learned Counsel appearing on behalf of the defendants submitted that the lower appellate 8 Court misinterpreted the provisions of Article 65 of the Limitation Act. It is further submitted that the lower appellate Court failed to consider Exhibit - 35, and 38 in respect of the suit property. He submits that Exhibit-35 and 38 clearly show that the defendants are in possession of the suit property for last several years with the knowledge of plaintiff and their predecessors. In view of continuous possession of the suit property, the defendants acquired title by adverse possession. He further submitted that the lower appellate Court failed to appreciate that the deceased Tejabai Kisan Patil herself allowed the defendants to cultivate the suit property as she was unable to do so. For the purpose of cultivation of the said land, deceased Tejabai herself handed over the possession of the suit property to them. It is further submitted that as per document executed by Tejabai in respect of suit property relinquishing her right, title and interest in favour of the defendants, the defendants are in 9 possession of the suit property for last several years. 9. On the other hand, the learned Counsel appearing on behalf of the defendants submitted that the Appellate Court should have considered that the suit filed by the plaintiff was barred by law of limitation. He submitted that under Article 60 of the Limitation Act, suit should have been filed within three years of the plaintiff attaining majority. The present suit filed by the plaintiff on 31-10-2001 beyond three years of the plaintiff attaining majority was barred by limitation. 10. On the other hand, learned Counsel appearing on behalf of the plaintiff submitted that the defendants failed to prove that their possession of the suit land was adverse to the owner thereof. He submitted that it is admitted position on record that the defendants were put in possession of the suit property by deceased 10 Tejabai Kisan Patil. These facts were admitted by the defendants in their W.S. dated 12-02-2002. It is specifically stated in Para 10 of the W.S. that the defendants were in possession of the suit property, with the consent of deceased Tejabai Kisan Patil till her death in the year 1993 and thereafter with the consent of her heirs and present suit was filed by the plaintiff on 31-10-2001. As the defendants' possession was with the consent of deceased Tejabai Kisan Patil after her death with the consent of heir heirs, the defendants could not prescribe title by adverse possession to the suit property in the absence of animus in that behalf. In respect of the limitation, the learned Counsel for the plaintiff submitted that the present suit was filed by the plaintiff for possession of immovable property on the basis of title and therefore, the same was covered by Article 65 of the Limitation Act, 1963. Tejabai died in the year 1993 and present suit came to be filed on 31-10-2001 and therefore, same was 11 within time. 11. With the assistance of learned Counsel appearing on behalf of both the parties, I have gone through the Record and Proceedings particularly, plaint, W.S., deposition of witnesses and some of the documents exhibited in the trial Court. For claiming adverse possession in respect of the suit land, the defendants have to adduce cogent evidence that they were in possession of the suit property with a knowledge of original owner and adversely to her. In the present case, the case of the defendants is that the deceased Tejabai KIsan Patil allowed them to cultivate the suit land and she executed deed of relinquishment, relinquishing right, title and interest in their favour in the year 1975. On the basis of said deed, the revenue authority entered their names in extracts of Village Form No. 6 which is at Exhibits-35 and 38. Since then with the knowledge of the owner, they are in exclusive possession of the suit 12 property and therefore, they acquired title by adverse possession. Learned Counsel appearing on behalf of the defendants submitted that though relinquishment deed was not registered document, same can be considered for determining adverse possession of the defendants. On these grounds, the learned Counsel appearing on behalf of the plaintiff submitted that the said document dated 15-04-1975 was not produced either before the trial Court and / or before the lower appellate Court. Therefore, he objected to rely upon the said document at the time of hearing the present Second Appeal. Learned Counsel appearing on behalf of the defendants submitted that Exhibit-35 and 38 were issued by the Revenue Authority only on the basis of deed of relinquishment. It is specifically stated in Exhibit-35 and 38 that the deceased Tejabai Kisan Patil on her own executed document on Stamp paper of Rs.5/- relinquishing her right, title and interest in favour of Shenfadu Krishna Patil. In support of this contention, learned 13 Counsel appearing on behalf of the defendants relied on the case in the matter of Bondar Singh and others vs. Nihal Singh and others reported in (2003) 4 S.C.C. 161. The Apex Court held that unstamped and unregistered sale deed, though does not convey title to the vendee and not admissible in evidence, can be looked into for the collateral purposes. There is no dispute about this proposition at all. In the present case, relinquishment deed dated 15-04-1975 neither produced before the trial Court nor before the lower appellate Court and therefore, there is no question of considering the same at the time of deciding present Second Appeal at admission stage. 12. Learned Counsel appearing on behalf of the defendants relied on another authority in the matter of Kalika Prasad and another vs. Chhatrapal Singh (Dead) By LRs. reported in (1997) S.C.C. 544 to support his contention that 14 if a person is in possession of immovable property for more than 12 years as power of attorney holder or in other way then he can claim adverse possession. In this authority, the Apex Court held that a person coming into possession under power of attorney but later on cancelled and thereafter, no action taken for ejectment for more than 12 years, in that case, person in possession can claim title by way of adverse possession. Para 4 of the judgment reads as under : "Shri A.K. Chitale, learned senior counsel for the appellant, contends that the view taken by the High Court is not correct in law. According to the learned counsel, the estate was abolished with effect from February 15, 1954; the appellant had obtained a patta under Section 190 of the M.P. Land Revenue Code on August 10, 1965, for conferment of a sami rights which was rejected; for the first time, the asserted his title to the property only on making an application on August 10, 1965; the suit came to be filed within 12 years from the date 15 and, therefore, the respondent had not perfected his title by prescription. We are unable to agree with the learned counsel. The learned Judge has recorded the finding that even after the abolition till the date of the filing of the suit, the respondent had remained in uninterrupted possession and thereby he perfected his title by prescription. It is also an admitted position that the power of attorney given to the respondent was cancelled and thereafter no action was taken to have him ejected from the lands in his possession. After the abolition of the estate, no attempt was made to have him ejected. When we have put a question to the learned counsel whether any notice was given to the respondent by the other party before obtaining the patta under Section 189 on July 22,1959, the learned counsel is unable to place before us any material to show that such a notice was given to him. Obviously, therefore, the patta was obtained without notice to him. The respondent having remained, without any interruption, for well over 12 years, it would be obvious that he remained in possession in assertion of his own right, that too after the abolition of the estate. Thereby, he perfected his title by prescription since any person who got superior right had taken no action to 16 have him ejected from the lands. Under these circumstances, the finding recorded by the High Court has not been vitiated by any manifest error of law creating any substantial question of law for interference in this appeal." 13. This authority is not applicable in the present case at all because in the present case, the defendants' case is that the deceased Tejabai allowed them to enter into the possession of the suit property on the basis of the deed of relinquishment, relinquishing her right, title and interest in the suit property. On the basis of the said deed, the defendants got mutated the said property in their favour and revenue record. But later on, the said mutation entry was cancelled by the Revenue Department. In any case, the plaintiff filed suit within 12 years from the death of Tejabai. Therefore, the present authority is not applicable to this case, on the facts and 17 circumstances as discussed hereinabove. 14. The learned Counsel appearing on behalf of the defendants further relied on the authority in the matter of Parsinni (Dead)by LRs and others vs. Sukhi and others, reported in (1993) 4 SCC 375. In this case, the Apex Court held that for claiming adverse possession, a person must show his possession peaceful, open and continuous. It is further held by the Apex Court that burden of proof lies on the party claiming the same. Head Note of this authority reads as under. "Limitation Act, 1963 - Art. 65 - Adverse possession - Test - Possession must be peaceful, open and continuous - Burden of proof on the party claiming - Pursuant to division of estate of deceased owner by metes and bounds, appellant daughters getting possession of a part of the land - Mutation record showing that the land was left for appellants' enjoyment till their marriage or death, whichever earlier - But even dafter their marriage, appellants remaining in 18 possession and enjoyment of the land for over 30 years, without any let or hindrance by leasing to tenants and continuous entries in revenue records showing them as owners - Respondent heir thereafter filing suit for declaration that they were owners of the land - Appellants claiming adverse possession on the basis of the revenue records - Held, claim sustainable." 15. This authority is not applicable in the facts and circumstances of this case. In the present case, the defendants themselves stated in their W.S. particularly in Para 10 that the deceased Tejabai allowed them to enter into possession of the suit property. This shows that they were in permissive possession and therefore, the defendants cannot claim adverse possession against the lawful owner within 12 years from the date of cause of action. The learned Counsel appearing on behalf of the defendants also relied on the authority in the matter of Laxmibai vs. Thoreppa reported in A.I.R. 1982 Karnataka 248. In this authority 19 Karnataka High Court held that the possession even under inadmissible document becomes adverse to true owner. It is the case of the defendants that deed of relinquishment dated 15-04-1975, relinquishing right, title and interest is not registered document and is not admissible in evidence, same can be relied to them, for title by adverse possession. In any case, this authority also is not applicable to the facts of the present case. In the present case, the defendants themselves admitted in Para. 10 of the W.S. that they were in possession of the suit property with the consent of the deceased Tejabai, even after the relinquishment deed was cancelled and they continued in possession to the knowledge of Tejabai and with the consent during her life and after her death with the consent of her heirs. The possession of the defendants being with the consent of Tejabai and after her death, with the consent of her heirs, their possession can never be held to be adverse to Tejabai and after her death to her heirs. 20 16. On the other hand, learned Counsel appearing on behalf of the plaintiff submitted that the burden is on the defendants to prove their title by adverse possession. In the present case, as the defendants themselves admitted in their W.S. that the deceased Tejabai allowed them to cultivate the said land, they cannot claim title by adverse possession. In support of this contention, the learned Counsel appearing on behalf of the plaintiff relied on the judgment in the matter of Karnataka Board of Wak vs. Government of India and others, reported in (2004) 10 S.C.C. 779. In this case, the Apex Court held that when adverse possession is claimed, a person must show exclusive physical possession and animus possidendi to hold as owner to the exclusion of he actual owner. Para. 11 and 12 of the said judgment read as under. "11. In the eye of law, an owner would be deemed to be in 21 possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is,peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi 22 Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should 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 long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to 23 clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128). 12. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: (para 4) 24 "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land 25 lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." 17. The learned Counsel appearing on behalf of the plaintiff also relied on the authority in the matter of Annakali vs. A. Vedanayagam and others reported in A.I.R. 2008 S.C. 346. In this case, the Apex Court held that the person claiming title by adverse possession must state in their pleadings the date from which they are claiming the adverse possession. Para 22 and 24 of the said judgment read as under. "22. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a 26 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