Second Appeal No.1490 of 2005

30th July, 2008

Petitioner Counsel: Mr. RAJENDRA DESHMUKH
Respondent Counsel: Mr. D. R. IRALE-PATIL

Cases Cited:
Roop Singh (Dead) through L.Rs. Vs. Ram Singh (Dead through L.Rs.), AIR 2000 SC 1485 [Para 6,9]
Thakur Kishan Singh (Dead) Vs. Arvind Kumar, (1994)6 SCC 591 [Para 6]
Krishnamurthy S. Setlur (dead) by L.Rs. Vs. O. V. Narsimha Setty, 2007 ALL SCR 2209 : 2007 AIR SCW 2979 [Para 9]

JUDGMENT

JUDGMENT :- Heard learned counsel Mr. Rajendra Deshmukh for the Appellant and Mr. Irale-Patil for the Respondent Nos.1 to 5.

2. This Court, after hearing learned counsel for the parties, at the stage of admission, had framed two substantial questions of law and admitted this second appeal. These two substantial questions of law are reproduced herein below :

(i) Whether the defendants appellants acquired title by adverse possession and whether plaintiffs' title is extinguished on account of adverse possession of the defendants appellants.

(ii) Whether, in the present matter, issue of tenancy arise ? If yes, whether same needs to be referred to the Tenancy Court?

3. Briefly stated, the facts are that one Tejrao Madhavrao Deshmukh was resident of village Ghankheda, Taluka Jafrabad, district Jalna. Tejrao Deshmukh, indisputedly, died on 15th June, 1991. There is no dispute that plaintiff Nos.1 and 2 are sons of deceased Tejrao, plaintiff No.3 is widow of deceased Tejrao and plaintiff Nos.4 and 5 are daughters of deceased Tejrao. There is also no dispute that defendant No.3 Ganesh is real brother of defendant No.1 Dattatrya and defendant No.2 Baban is son of defendant No.1 Dattatraya. There is also no dispute that defendant No.1 Dattatraya is husband of sister of deceased Tejrao. There is also no dispute that defendant No.3 Ganesh is husband of plaintiff No.5 Kasturabai, who is daughter of deceased Tejrao. The plaintiff has filed the suit for possession and mesne profits. The agricultural land Block No.71 (old survey No.34/2), admeasuring 6 Hectares 75 Ares, situated at village Dahegaon, Taluka Jafrabad district Jalna is the subject matter of the suit (suit land). The defendants, after entering appearance have filed written statement at Exhibit-10. The trial Court framed five issues in the suit. The issue No.1 was placing burden of proof on the plaintiff. It was regarding claim of the plaintiff that he is owner of the suit land and has acquired ownership by succession. Finding partly is in favour of the plaintiff. Issue No.2 was regarding allegation of the plaintiffs that occupation of the defendants over the suit property is illegal. Finding is in favour of the plaintiffs. Issue No.3 was regarding limitation, whether suit is barred under law of limitation and finding is against the plaintiff. Issue No.4 was in respect of entitlement of the plaintiff for possession of the suit land and finding is against the plaintiff. The trial Court, after considering the evidence dismissed the suit with costs and directed the plaintiffs to pay costs to the defendants and bear their own costs. This was the judgment and decree passed by the trial Court on 31st October, 2002. This judgment and decree was challenged by the original plaintiffs by filing Regular Civil Appeal No.164 of 2002 in the Court of learned District Judge at Jalna. The 4th Adhoc Additional District Judge, Jalna, after hearing the parties, allowed the appeal with costs and quashed and set aside the judgment and decree passed by the trial Court in Regular Civil Suit No.50 of 1992. The respondents/defendants were directed to deliver the possession of the suit land to the appellant/ plaintiff. This judgment and decree passed by the first Appellate Court dated 9th June, 2005 in Regular Civil Appeal No.164 of 2002 is subject matter of the present second appeal.

4. I have heard the learned counsel for the parties at length. Mr. Rajendra Deshmukh, who appears for the Appellants, strenuously urged before this Court that the suit filed by the plaintiffs is based on previous possession of the plaintiffs and, therefore, is governed by Article 64 of the Limitation Act. The plaintiffs have filed this suit on 17th September, 1992. This suit, therefore, according to him, is not filed within a period of limitation. In support of his submissions, he has invited my attention to the observation of the trial Court, while deciding issue No.3. The first Appellate Court has also framed point No.1 in relation to limitation and/or bar of limitation. Mr. Deshmukh, has referred to finding recorded by the first Appellate Court on the point of limitation. According to him, the finding of the first Appellate Court on the point of limitation is not legal and in consonance with the facts and circumstances available in the case on hand. The judgment of the Maharashtra Revenue Tribunal is on record. Mr. Deshmukh submits that, though matter is not remanded by the Maharashtra Revenue Tribunal, Aurangabad, said judgment is not final in the matter and defendants were permitted to file appropriate application. Mr. Deshmukh has submitted that pleading in the case on hand needs to be considered as mofussil pleading. Plea of adverse possession is raised in the pleading and plea of tenancy is also raised in the pleading. According to him, the civil Court does not have jurisdiction to decide the status of a person as tenant and, therefore, matter should have been referred to the tenancy authorities by the civil Court. Plea of adverse possession, though was raised by the defendants in their pleading, no issue has been framed by the trial Court, neither point for determination is framed by the first Appellate Court. According to him, the substantial question of law, in the case on hand, is raised by the Appellants regarding their plea of adverse possession. The defendants, in fact, have acquired a status of tenant and for this purpose he submits that there is evidence on record showing that the defendants are in actual physical possession of the suit property as tenant from 1957-58 onwards.

Mr. Irale Patil, learned counsel for the respondents/ plaintiffs submitted that suit filed by the plaintiffs is based on title and not previous possession. In his submission, Article 65 is applicable to the facts of the present case. He supports the judgment of the first Appellate Court on the point of limitation. According to him, there is no substantial question of law, so specifically, as framed in this second appeal, and appeal, therefore, needs to be dismissed.

DATE : 30.07.2008

5. Mr. Irale Patil, learned Counsel for the respondents submitted that no substantial question of law regarding Ground no.1 is involved in the case on hand. In the alternative, he submitted that no case for acquisition of title by principles of adverse possession is proved by the defendants. Mr. Irale Patil has invited my attention to the meaning of phrase "adverse possession" given in the Law Lexicon. "Adverse possession" may be defined as "holding possession under a claim of title inconsistent with that of the true owner. Possession may be adverse ab initio or may become adverse subsequently. Other definitions are also given, according to which, "Adverse Possession" designates a possession in opposition to the true title and real owner; and implies that it commenced in wrong and is maintained against right. Adverse possession, generally speaking, is a possession of anothers land which, when accompanied by certain acts and circumstances, will vest title in the possessor. Decisions and text books are unanimous in declaring that the possession must be actual, visible, exclusive, hostile, and continued, during the time necessary to create a bar under a statute of limitations. Ultimately, the title acquired cannot be higher than what it would be if the pretence or falsehood were true. According to Mr. Irale Patil, learned Counsel, plea of adverse possession is not established in the case on hand and, therefore, this substantial question of law no.1 needs to be answered in favour of the plaintiffs, holding that the defendants have not acquired the title to the suit property by principles of adverse possession. Mr. Irale Patil, learned Counsel, in relation to Ground No.2, which is accepted as substantial question of law, submitted that issue of tenancy does not arise in the case on hand and in turn there is no question of reference of such issue to the tenancy authorities. In substance, Advocate Mr. Irale Patil seeks dismissal of the appeal.

6. Mr. Irale Patil, in support of his submissions relies upon a judgment of the Supreme Court in the matter of Roop Singh (Dead) through L.Rs. Vs. Ram Singh (Dead through L.Rs.) reported in AIR 2000 SC 1485 and Thakur Kishan Singh (Dead) Vs. Arvind Kumar, reported in (1994)6 SCC 591.

7. I have examined the plaint in Regular Civil Suit No.50/1992 filed by the plaintiffs. From the pleadings, it appears that plaintiffs have alleged that the suit property was owned and exclusively possessed by Tejrao, father of the plaintiff nos.1 to 4 and 5 and 6. Mr. Tejrao died on 15th June, 1991. Status of Plaintiff nos.1 and 2, as sons of deceased Tejrao and Vatsalabai plaintiff no.3; status of plaintiff nos.4, 5 and 6 as daughters of deceased Tejrao and Vatsalabai and status of plaintiff no. 3 - Vatsalabai as widow of Tejrao is not in dispute. Thus, in substance, the plaintiffs have claimed ownership to the suit property by inheritance after demise of Tejrao on 15th June, 1991. They also claim possession through deceased Tejrao. In paragraph 4 of the Plaint, they have pleaded that defendant nos.1 and 2 have exploited their relationship with plaintiffs and situation obtaining at that time, i.e. 1984 and have occupied suit property illegally. According to the plaintiffs, till then, plaintiff no.1 alone was cultivating the suit land. I have also carefully examined the written statement (Exhibit-10) filed by the defendants. In paragraph 4 thereof, after denial, it is pleaded by the defendants that the defendants have constructed farm house and cattle shed many years prior to filing of the suit. They have denied that they are in illegal possession of the suit property. Regarding plea of adverse possession, defendants have pleaded in para 2 of the additional written statement, i.e. Exh.10. This pleading is to the effect that defendants' possession over the suit property is for more than 12 years and, therefore, maintaining their plea that defendants are tenant in the suit property, it has been further pleaded by them in para no.2 of the additional written statement (Exh.10) that the defendants have acquired title to the suit property by principles of adverse possession. Evidence of P.W.1 - Mr. Bhaskar is at Exh.19. This witness has narrated relationship between the parties which is an admitted fact. He has made a statement in the evidence that his father Tejrao was the owner and possessor of the suit property and died on 15th June, 1991. He has also made a statement that after the demise of his father, he became owner of the suit property. At the commencement of the examination-in-chief, P.W.1 - Bhaskar has clarified that he is deposing on behalf of the plaintiffs. Regarding entries in the revenue record, this witness has stated in the evidence that entry in the name of Deft. no.1 - Dattatraya was recorded in the year 1987-88. At the closure of examination-in-chief, he has stated that the plaintiffs are legal heirs of deceased Tejrao and, therefore, the suit has been filed. He denied the suggestion made on behalf of the defendants that the suit property is in possession of defendants for 40 years. He admitted in the cross-examination that he alone is not owner of land Gut No.70, 71. In the cross-examination, he denied that suit property is in possession of deft. no.1 - Dattatraya prior to his birth. Deft.no.1- Dattatraya is examined at Exhibit-32. In his examination-in-chief, he claims that the suit property is in his possession as tenant since 1958. Suggestion was denied in cross-examination by deft.no.1-Dattatraya that he was not cultivating the suit property as tenant. I have also considered the evidence of Bhagwanrao Lahane, which, in fact, is not material, considering the controversy between the parties.

8. The plea of adverse possession is the substantial question No.1 framed by this Court at the time of admission of the appeal. It is not in dispute that on behalf of the defendants and in support of the plea of adverse possession, which is raised by the defendants in their additional written statement, para 2 (Exh.10), only one witness, i.e. P.W.1 - Dattatraya is examined. I have read the evidence of Dattatraya carefully. He made a statement in his examination-in-chief that the suit property is in his actual physical possession since 1958 on crop share basis (Batai basis). Thereafter he applied to the Tahsildar seeking ownership of the suit property and it was accordingly decided by the Tahsildar in his favour. He claims that he was cultivating the suit property as tenant since 1958/59. He states that the suit property thus is possessed by him as tenant for about 38/39 years. Owner of the suit property deceased Tejrao Madhavrao did not turn up to the suit property and or village Dahegaon during his life time. At the end of his examination-in-chief, he denies that since 1984/85 the suit property is possessed by him illegally. This is the evidence, i.e. examination-in-chief in substance of deft. no.1 - Dattatraya. Without adverting to the cross-examination and even accepting every statement made in examination-in-chief by deft. no.1 - Dattatraya to be true, only two positive assertions seem to have been made by him, namely, i) since 1958 he is cultivating the suit property on crop share basis; and ii) denial that since 1984/1985 his possession over the suit property is not illegal. His possession as tenant he has figured out to the tune of 38/39 years. With this pleading and evidence of the defendant for plea of adverse possession, now let us consider the scope and ingredients of principles of adverse possession. For application of doctrine of adverse possession, it is to be clarified that doctrine of adverse possession essentially operates by default. When the property is sought to be claimed by third party, ordinarily the third party would not have any right to that property. However, it is only on the ground that third party has set up a title to the knowledge of the true owner and continued in uninterrupted possession or in hostile possession of that property for over 12 years. Thus, law takes into account the fact that true owner has by virtue of his in-action, lack of action during the entire period of 12 years time, does nothing to reclaim the property and has allowed a right to accrue to the party in possession. These are factors usually that confer benefit of the right of adverse possession. This principle chiefly presupposes the fact that there is no other right available to the party claiming adverse possession. Thus, absence of no better rights in relation to such property in favour of the party, setting up a plea of adverse possession, is significant. Such plea of adverse possession has to be pleaded sufficiently and clearly by the party concerned. All facts need to be pleaded by the party concerned, if such party seeks benefit of doctrine of adverse possession and acquisition of title to such property, which undisputedly not owned by such party and to which no better right stands with party claiming benefit of such plea of adverse possession.

9. The plea of adverse possession cannot be said to be a pure question of law. It can be said to be a mixed question of law and fact. A party setting up such plea must plead and establish that its possession was adequate in publicity, in continuity and for the statutory period of 12 years. It is sufficient that the possession to be overt and without any attempt at concealment so that a person against whom time is running ought if he exercises due vigilance to be aware of what is happening. Thus, there must be evidence of open assertion of hostile title occupied with exclusive possession and enjoyment to the knowledge of the other, i.e. true owner of the property. Such party, setting up plea of adverse possession must establish that it's possession was adverse to the knowledge of the real owner and denying the title of the real owner. Commencement of such adverse possession that is pointed out must be pleaded and proved for counting such statutory period of 12 years. It is thus clear that the person, who enters permissive possession, cannot plead acquisition of such title by principles of adverse possession. Facts may differ from case to case. The principles of adverse possession have been referred to by this Court as well as the Apex Court. One of the judgments is made available by Advocate Mr. Irale Patil in the matter of Roop Sing (cited supra), wherein the Supreme Court has held that : mere possession for a long time does not convert permissive possession into adverse possession. There in that case, the defendant entered into possession of premises as Bataidar (tenant). The Supreme Court observed that no knowledge and convincing evidence to show as to when possession became adverse and hostile. Concurrent findings of fact in that case recorded by the lower court that possession of the defendants was permissive, was refused to be disturbed by the Supreme Court. It is apposite to rely upon one more Judgment of the Supreme Court in the matter of Krishnamurthy S. Setlur (dead) by L.Rs. Vs. O. V. Narsimha Setty & Ors., reported in 2007 AIR SCW 2979 : [2007 ALL SCR 2209]. The Supreme Court in para no.13 of its judgment has observed that : "in the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint; the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show hostile title. He has to communicate his hostility to the real owner." Thus, with reference to these two judgments of the Supreme Court, I have examined the pleadings and proof tendered by the defendants, who have set up a plea of adverse possession. Another substantial question of law is regarding plea of tenancy raised by the defendants. These two pleas, i.e. adverse possession and tenancy cannot go hand in hand unless it is pleaded and proved by the defendants as to when he/they surrendered possession as tenant and commencement of date of possession by principles of adverse possession. There is no such pleading and evidence. On examination of the pleading and proof of the defendants in the case on hand, in my view, it cannot be said that substantial question of law no.1, which is framed by this Court at the time of admission of the appeal, can be answered in favour of the defendants by allowing the present appeal and by quashing and setting aside the judgments of the courts below.

10. This now leads me to second ground of question which is formulated by this court at the time of admission of the appeal. Filing of application by the defendant to the Tahsildar under the provisions of Hyderabad Tenancy Act, 1950 (hereinafter to be referred to as Act of 1950) is mentioned in the pleading by the parties, i.e. plaintiffs in their plaint and defendants in their written statement. A copy of the judgment of the Maharashtra Revenue Tribunal is on record. Mr. Deshmukh, learned Counsel for the appellant/defendants, submitted that Maharashtra Revenue Tribunal in its judgment (Exh.20) has permitted his client, i.e. the appellants to file appropriate application before the Tahsildar, Jafrabad. According to him, the application was filed and it was decided by the Tahsildar. That judgment is also on record. Mr. Irale Patil, learned Counsel for the respondents, submits that the said judgment of M.R.T. has quashed the order of the Appellate Court as well as Trial Court and said revision application is allowed by M.R.T. I have read the judgment (Exh.20) delivered by M.R.T. on August 29, 1991 in Case No.131/B/90-J. There is no operative part as such in the judgment of M.R.T. However, last 4-5 lines can be considered or treated to be operative part of the said judgment. The said 4-5 lines of the judgment of M.R.T. are reproduced as under :

"Revision petition is, therefore, allowed. Order of the appellate court as well as trial court under the present Revision Petition are set aside. The application of the plaintiff for declaring him as owner stands rejected. No order as to costs."

This Revision application undisputedly was filed by deceased Tejrao and deft.no.1 - Dattatraya was the respondent in that revision. It is not possible for me to accede to the submissions of Mr. Rajendra Deshmukh that this revision application was not decided on merits and the defendants/respondents in the revision were permitted to file some other application before the Tahsildar. It is also not in dispute that there is no further proceedings against this order of M.R.T. dated 29th August, 1991. In my view, the initial order passed by the Tahsildar and confirmed by the Appellate Court under the Act of 1950, under section 8, has been ultimately quashed and set aside by M.R.T. and said order has attained finality.

11. Mr. Rajendra Deshmukh, learned Counsel has invited my attention to the judgment dated 2nd December, 2002 delivered by the Tahsildar, which is on record. It is because one Mr. Ramrao Madhavrao Deshmukh, real brother of deceased Tejrao, had filed Regular Civil Suit No.42/1991 for the same land, which is the suit property of the present Second Appeal and there was a reference of issue of tenancy by the Civil Court under Section 99-A and incidentally, wherein the present deft. no.1 - Dattatraya was claiming tenancy. This judgment of the Tahsildar dated 2nd December, 2002 was challenged by filing an appeal before the Deputy Collector, Jalna. Order of the learned Deputy Collector in appeal was tried to be placed on record along with C.A. No.5270/2007. This application was subsequently not pressed by the applicants, i.e. plaintiffs in the present case and, therefore, the said civil application came to be disposed of as not pressed. With consent of learned counsel for the parties I have called the papers in C.A. No.5270/2007. I have read the judgment of the Appellate Court also. However, I am not expressing any opinion for the reason, R.C.S. No.24/1991 is independent suit. I am told that the present plaintiffs are parties to that suit. But then it is a different matter. R.C.S. No.24/1991 will be decided by the civil court and appellate court and by this court independently in accordance with the provisions of law. For the purpose of present second appeal, therefore, I do not wish to express any opinion regarding the judgment of the Tahsildar dated 2nd December, 2002 and the Judgment of the Appellate court dated 3rd of April, 2007. Parties in appropriate proceedings can address the appropriate forum in accordance with the provisions of law.

Question No.2 framed by this Court in this appeal is Whether in the matter, issue of tenancy arise ? If yes, whether it needs to be referred to the Tenancy court ? The issue of tenancy, in my view, is a matter of pleading and proof. There has to be foundation in the pleading of the party concerned, meaning thereby in case of plaintiffs in the plaint and in case of defendants in the written statement. In the case on hand, the appellants are the original defendants. I have examined their written statement from this point of view. Tenancy always has to be with reference to ascertainable land in terms of survey number, gut number, its area etc. Terms of the tenancy need to be in relation to payment of rent; crops share or other terms, if at (sic) agreed between the parties. In the case on hand all that has been pleaded by the defendant in the written statement that since 1957-58, he is cultivating the suit property as tenant and entries are recorded in the revenue record for the period 38-39 years. The pleading regarding terms and conditions of the tenancy are absent in the written statement. Looking to the nature of the pleadings and evidence led on behalf of the parties, in my view, it cannot be said that issue of tenancy does arise in the facts and circumstances of the case on hand. Since I am answering part of this substantial question No.2 against the appellants, there is no question of now directing any reference to the authorities under the provisions of the Act of 1950. Thus, Question no.2 framed by this court, in my view, has to be answered in negative, holding that the issue of tenancy does not arise in the facts and circumstances of the case on hand. Resultantly, the Second Appeal needs to be dismissed on both the substantial questions of law by recording a finding against the present appellants. Second Appeal stands dismissed accordingly.

Second appeal dismissed.