Case: SRI UTTAM CHAND (D) TH LRS  Vs. NATHU RAM (D) THR. LRS

2. The plaintiff filed a suit for possession on the basis of purchase of suit property from the Managing Officer, Department of Rehabilitation, Government of India in a public auction held on 21 st March, 1964. The certificate of sale was issued thereafter on 4 th January, 1965. The plaintiff filed a suit for possession on 17 th February, 1979 alleging the defendants to be in an unauthorised possession of the suit property and who have refused to vacate the same3. The defendants in the written statement denied that the plaintiff is the owner of the property. The defendants asserted that their house existed on the property in question for more than the last two centuries. The grandfather of the defendants was said to be in possession of the property as owner, thereafter their father one T ara Chand and now all the defendants are in possession of the property as owners. It was denied that the property was ever vested with the Managing Officer and, therefore, it was claimed that the Managing Officer has no authority or jurisdiction to auction the property in question. Therefore, the plaintiff has no interest, right or title in the property4. Parties went to trial on the following issues:1. Whether the suit is properly valued for the purpose of Court fee & Jurisdiction?2. Whether the suit is time barred?3. Whether the plaintiff is the owner of the property in suit?4. Whether the defendants become owner by adverse possession of the property in suit?5. Whether the defendants are in unauthorized occupation of the property in dispute?5. Before the learned trial court, the plaintiff examined PW-4 Chander Bhan, Lower Division Clerk from the Land and Building Department who has proved that the sale certificate was issued in favour of plaintiff on 15 th January, 1965. The learned trial court recorded the finding on the basis of testimonies of Din Dayal Khanna (PW-3), Chander Bhan (PW-4) and S.B. Lal (PW-5) that the property is situated in Khasra No. 9 and has been sold through auction. The learned trial court also considered the testimonies of Bhagwan Dass (DW-1) and Ranjit (DW-2), both sons of the defendant, that the plaintiff is the owner of the property purchased through Ex.B4/1 in an auction from the Managing Officer, Department of Rehabilitation. Thus, Issue No. 3 was held in favour of the plaintiff and the plaintiff was found to be owner of the property. But Issue Nos. 2, 4 and 5 were decided in favour of the defendants and against the plaintiff and consequently the suit was dismissed but with a direction to the plaintiff to make good the deficiency of court fee of Rs. 2000/- within one month in view of the finding recorded on Issue No. 16. In the first appeal by the plaintiff, the learned First Appellate Court affirmed the findings recorded by the trial court on Issue Nos. 1 and 3 that the plaintiff is the owner of the property in question. However, in respect of Issue No. 2 as to whether the suit is time barred, the learned First Appellate Court returned a finding that the suit is within time as the same was filed on February 17, 1979 i.e. before the completion of 12 years. Issue No. 2 was decided against the defendants holding that the findings recorded by the trial court that the limitation starts from the date of purchase of the suit property is not sustainable. The right of the respondents over the property was challenged before the completion of 12 years, therefore, the suit filed in February, 1979 is within period of limitation. Under issue No. 4, the findings recorded were that the mere possession of land, however long it may be, would not ripe into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. The assertion of title must be clear and unequivocal. Consequently, Issue No. 5 was also decided against the defendants and the suit stood decreed7. In the second appeal, the High Court affirmed the finding of ownership in favour of the plaintiff and relied upon electricity and house tax bills showing the possession of the defendants over the suit property from November, 1963. It was, thus, held that the adverse possession of the defendants over the same matured within 12 years, by November, 1995, therefore, the suit filed on 17 th February, 1979 was barred by limitation8. The High Court referred to the statement of PW-1 Uttam Chand that the suit property was assessed to house tax but no one had paid such tax. He stated that there was only one kachha room of mud at the site but he did not know when the unauthorised construction was made in the suit property. The High Court considered the statement of witness of the plaintiff to return a finding that T ara Chand, deceased father of the defendants was found in possession of the suit property in March, 1964. The High Court returned a finding that T ara Chand was in occupation of the suit property even prior to the purchase of the same by the plaintiff in the year 1964. The Court referred to the judgment of this Court reported as T. Anjanappa & Ors. v. Somalingappa & Anr. (2006) 7 SCC 570   to hold that the defendants were in open, uninterrupted, peaceful and hostile possession since March, 1964 and the period of 12 years was completed in March, 1976. Therefore, the suit filed by the plaintiff on 17 th February, 1979 was barred by limitation.

Reasoning: 16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.