1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 588 OF 1984 Shri Pandiit Tukaram Dharrao (since deceased) by his L.R.s & ors. ... Appellants v/s Shri Shankar Raoji Dharrao (since deceased) by his L.R.s & ors. ... Respondents Mr.V.S.Gokhale for the appellants. Mr.R.M.Haridas i/by Mr.P.N.Joshi for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH SEPTEMBER, 2009 ORAL JUDGMENT: 1. The present appeal has been filed against the judgment and decree passed by the Trial Court in Regular Civil Suit No. 78 of 1972 and the judgment and order in the appeal i.e. Civil Appeal No.233 of 1981. 2. The facts giving rise to the present appeal are as follows :- 2 One Chandrabhagabai had inherited the disputed property being an open space and a house standing at C.T.S. No.1163 at Kasbe Niphad, Tal. Niphad, Dist. Nasik. Her grandson Ananda inherited her property after her death. In the year 1929, it appears that Ananda’s father Bhikaji i.e. the son-in-law of Chandrabhagabai had mortgaged the property with a Co-operative Society. Ananda then redeemed the property from the Co-operative Society in 1933. The appellants claim that Ananda executed a registered sale deed in favour of one Pandit Tukaram Dharrao and one Shri Punja and sold the suit property to them. 3. The plaintiff Shankar filed Regular Civil Suit No. 78 of 1972 against the defendants for an injunction and in the alternative, for possession of the disputed property. The plaintiff contended that, after the death of Chandrabhagabai he was entitled to possession of the property as he became the owner by reversion. 4. A written statement was filed by the defendants on 18.6.1973 in which it was contended that they were in possession of the suit property under a sale deed executed by Ananda. The suit was decreed and the plaintiff’s prayer for possession and injunction was granted on 30.6.1981. 3 5. Aggrieved by this decision, the defendant Nos.1 to 10 preferred Civil Appeal No.233 of 1981 on 31.7.1984. That appeal was dismissed and the order of the Trial Court was confirmed. The present second appeal was preferred by the defendant No.1 on 11.12.1984. During the pendency of the appeal, the appellant i.e. defendant No.1 filed Civil Application No. 545 of 1986 seeking permission to amend his written statement by taking an alternate plea that he was in possession of the suit property by way of adverse possession. The civil application was allowed and an additional issue was framed on 8.6.1987. The following additional issue was framed:- (i) Does defendant No.1 prove that he had acquired the title to the suit property by adverse possession for a period exceeding 12 years before the date of the suit ? This Court remitted the issue to the Trial Court for a finding thereon by the order dated 8.6.1987. 6. The Trial Court, after recording further evidence in respect of this issue, has answered the additional issue in favour of the defendant No.1 by its order dated 11.7.1988. This order has been confirmed by the Additional District 4 Judge in appeal on 8.8.1989. The findings have been submitted to this Court. 7. Therefore, the situation in the present second appeal is that, although the defendant No.1’s claim that he is in possession of the suit property under a sale deed executed in his favour by Ananda, has been negatived by the Trial Court and the Appellate Court, his plea of adverse possession has been accepted. Thus, both the Courts below have held that defendant No.1 is entitled to possession of the suit property as his claim was adverse to the plaintiff Shankar, who was entitled to the suit property by way of reversion. During the pendency of this second appeal the appellant/defendant No.1 expired and his heirs are prosecuting the appeal. 8. The heirs of the respondent/plaintiff have submitted objections under Order 41 Rule 26 of the Code of Civil Procedure to the findings recorded by both the Courts below with respect to adverse possession. The second appeal and the cross-objections have been heard together. 9. Mr.Gokhale, learned advocate appearing for the appellant i.e. defendant No.1 submits that although the appellant has succeeded on the issue of adverse possession, 5 the decree passed in favour of the plaintiff would have to be set aside in the present second appeal. He submits that unless the decree is set aside, the findings in favour of the defendant No.1 that he has acquired title to the suit property by adverse possession will be meaningless. 10. Mr.Haridas, learned advocate appearing for the respondents i.e. the legal heirs of the plaintiff submits that this Court ought not to have allowed the appellant/defendant No.1 to amend the written statement by incorporating para 20A in the written statement as the plea taken in that paragraph is inconsistent in rest of the pleadings in the written statement. He submits that although the respondents did not challenge the order of this Court allowing the amendment, a bare perusal of the amendment would indicate that the appellant has not in clear terms stated as to when he came in possession of the suit property nor has he stated the date on which he claimed that his title was adverse to that of the respondent/plaintiff. The learned advocate points out that unless these two essentials are present in the pleadings, no decision on adverse possession can be arrived at by the Trial Court in favour of the appellant. The learned advocate further submits that, when the written statement proceeds on the footing that the 6 appellant is in possession under the sale deed, a plea of adverse possession cannot be raised as that would be contrary to the earlier pleading of the defendant No.1 that he was in possession under the sale deed. He draws my attention to the evidence on record and points out that there is no evidence to establish that the claim of defendant No.1 that he is in hostile possession of the suit property. The learned advocate therefore submits that the cross objections of the respondent/plaintiff must be allowed and the finding of the Courts below on the issue of adverse possession should be set aside. The learned advocate urges that the decree should be maintained by dismissing the second appeal. 11. Mr.Haridas relies on several judgments of the Supreme Court to buttress his submissions. I will presently advert to these judgments. 12. Mr.Gokhale appearing for the appellants submits that initially the defendant No.1 had claimed that he was in possession under a sale deed executed by Ananda. The plaintiff i.e. the respondent herein had claimed that he was entitled to the suit property as after the death of Chandrabhagabai he became the reversionary heir of Chandrabhagabai. The learned advocate submits that by 7 amending the written statement there is no inconsistency in the pleadings. He points out that the sale deed has been executed by Ananda and the defendant No.1 had not claimed a title adverse to Ananda but to the rights of the plaintiff who claims to be the reversionary heir of Chandrabhagabai. He points out that the defendant No.1 is in possession of the suit property ever since 1950 and, therefore, the judgments relied on by the advocate for the respondent have no application in the present case. He further draws my attention to the fact that the name of defendant No.1 is recorded in the Gram Panchayat record and he has been paying taxes as can be seen from Exhibits 84 to 89. He further points out that the defendant No.1 i.e. the appellant herein has been in possession of the suit property ever since 1950 openly and without any disturbance to his enjoyment by the plaintiff. 13. Therefore the substantial question of law which arises for determination is :- (1) Whether the appellant’s claim to the suit property by way of adverse possession is inconsistent with his plea that he was in possession of the suit property under the sale deed executed in his favour in 1950 ? 8 (2) Whether the decree is required to be set aside since the Courts below have recorded a finding that the appellant had established that he was entitled to the suit property by way of adverse possession ? 14. It would be appropriate to consider the judgments cited at the bar at this stage. 15. In the case of Roop Singh v/s Ram Singh, reported in 2000 (3) S.C.C. 708, the Supreme Court has held that, when the defendant’s entry on the suit land was permissive, the permissive possession would become adverse only if a hostile title is asserted and proved by an overt act. The Supreme Court observed that the defendant, in such a case, is required to establish by cogent and convincing evidence that he has hostile animus and his possession is adverse to the knowledge of the real owner. Permissive possession cannot be converted to adverse possession merely because the possession of the suit property is for a long period of time. 16. The next judgment relied on is in the case of V. Rajeshwari v/s T.C.Saravanabava, reported in 2004 (1) S.C.C. 551. In this case, the defendant denied the 9 title of the plaintiff over the suit property on the ground that he had been in continuous, uninterrupted, open possession and enjoyment of the suit property for more than the prescriptive period and he had thus perfected his title to the suit property by adverse possession. While dealing with this contention, the Supreme Court observed that on the facts in that case the plea of adverse possession was vague and had not been substantiated. The defendant claimed that he was an adopted son of one of the predecessors-in-title of the plaintiff and had filed a suit for partition claiming a share therein. Thus he was canvassing his case as a co-owner in possession. However, there was no indication as to from what point of time he started claiming a hostile title and the defendant had utterly failed to plead and prove his adverse possession. The Supreme Court thus held that unless the plea of adverse possession is specifically pleaded and proved, it need not be accepted. 17. In the case of Mool Chand Bakhru v/s Rohan, reported in 2002 (2) S.C.C. 612. The Supreme Court was considering a case in which the doctrine of part performance was invoked. The respondents before the Supreme Court contended that they were put in possession of the suit property by way of part performance of the 10 agreement to sell on payment of part of the sale consideration and, therefore, they were entitled to protect their possession of the suit property under Section 53-A of the Transfer of Property Act. Alternatively, they pleaded that they were owners of the property by way of adverse possession as they were in continuous possession for more than 12 years. The Supreme Court reiterated its view expressed in earlier judgments and held that the plea of adverse possession and the plea that the defendant is in possession by operation of Section 53-A of the Transfer of Property Act, are inconsistent with each other. 18. In the case of Mohan Lal v/s Mirza Abdul Gaffar, reported in 1996 (1) S.C.C. 639, the Supreme Court again considered the plea of part performance vis-a-vis that of adverse possession. The appellant claimed that he was in possession under an agreement and also raised the plea of adverse possession. The Supreme Court observed that, in such a situation it was necessary for the appellant to disclaim his right under the agreement and then to plead and prove assertion of his independent hostile possession which is adverse to the knowledge of the transferor or the successor- in-title or interest. The Court held that, since the appellant’s claim was founded on Section 53-A of the Transfer of 11 Property Act and he continued to be in possession of the suit land under the sale deed, the plea of adverse possession was not available to the appellant. 19. Similarly, in the case of Arundhati Mishra v/s Sriram Charitra Pandey, reported in 1994 (2) S.C.C. 29, the Supreme Court held that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 20. In the present case, both the Courts below have found on the basis of the evidence led before them that the issue regarding the adverse possession had been pleaded and proved adequately by the appellant. The plea of adverse possession raised by the appellant is for setting up of the title which is hostile to the respondent/plaintiff who claimed to be a reversionary heir of Chandrabhagabai. The appellant has not set up a title which was hostile to his transferor of the suit property under the sale deed i.e. Ananda. Had the claim of the appellant of being in possession, adverse to the title of Ananda been raised, the appellant surely would not have been permitted to raise such inconsistent pleas. He could not have contended that he was in possession of the suit property under the sale deed which was executed by Ananda 12 in his favour and yet claimed hostile possession against Ananda. The two pleas would have been antithetical. The appellant is not claiming a title which is hostile to his transferor’s interest. His claim is adverse to the reversionary heir i.e. the defendant. Both the Courts below have accepted the evidence and held that the appellant was in possession of the suit property from 1950. He had proved Exhibits 84 to 89 which indicated that he was paying taxes for the suit property and that his name was recorded by the Gram Panchayat in respect of the suit property. Both the Courts below have held that the appellant is in possession of the suit property i.e. open space and a house standing at CTS No.1163 at Kasbe Niphad, Dist. Nasik, openly, to the knowledge of the respondent and without any disturbance from him. Therefore, there is a concurrent finding of fact recorded by both the Courts below indicating that the appellant is in possession of the suit property for the last 50 years and he had acquired title to the suit property by adverse possession. 21. The conclusions drawn by the Trial Court and confirmed by the Appellate Court cannot be faulted. They are based on cogent evidence. In my opinion, there is no need therefore to take a different view. The plea of adverse 13 possession raised against the respondent is not inconsistent with his title of the suit property under a sale deed. 22. The appeal is therefore allowed. The cross objections filed by the respondent under Order 41 Rule 26 of the Code of Civil Procedure are dismissed. The decree is set aside and the findings of the Courts below that the appellant has acquired title to the suit property by adverse possession is confirmed. The suit is dismissed. 23. In view of disposal of the second appeal, Civil Application No.6344 of 1984 does not survive and stands dismissed. ..... 14