Second Appeal No.600 of 1991,Second Appeal No. 601 of 1991,Second Appeal No. 602 of 1991

4th September, 2008

Petitioner Counsel: Mr. P. K. DHAKEPHALKAR
Respondent Counsel: Mr. R. A. THORAT,Mr. P. J. THORAT and R. P. KADAM,Mr. V. A. THORAT

Cases Cited:
P. T. Munichikkanna Reddy Vs. Revamma, 2007 ALL SCR 1582 : AIR 2007 S.C. 1753 [Para 9]
Vasantiben Prahladji Nayak Vs. Somnath Muljibhai Nayak, 2004(5) ALL MR 432 (S.C.)=2004 AIR SCW 1704 [Para 9]
Karnataka Board of Wakf Vs. Government of India, (2004)10 SCC 779 [Para 9]
P. Periasami Vs. P. Periathambi, (1995)6 SCC 523 [Para 16]

JUDGMENT

JUDGMENT :- All these three appeals may be disposed off by the common judgment as they arise out of the common judgment delivered by 6th Additional District & Assistant Sessions Judge, Nashik in a group of five appeal against the decree for recovery of possession passed by the Civil Judge Junior Division, Pimpalgaon Baswant in a group of five suits.

2. To state in brief, these appeals are filed by the original plaintiffs, who had filed five regular civil suits being civil suit nos.149, 150, 151, 152 and 153 of 1978 for possession of suit sites, which are parts of survey no.437/A situated at Kasbe-Pimpalgaon Baswant in Taluka: Niphad, District: Nashik. The representative Suits were filed by the present appellants for and on behalf of Gosavi community of Pimpalgaon Baswant. According to them, there is a Devsthan, Math and Samadhi of Gosavi Community of Pimpalgaon Baswant on the land survey no.437/A. Survey no.437/A-1 is a part of same survey no.437/A. Devsthan, Math and Samadhi are commonly known as 'Shri. Martand Dev Sansathan'. It was contended that this property belongs to the said Sansathan and Gosavi community since ancient times. The Government had denied the title of Gosavi Community over the said property and, therefore, for a long time litigation was going on between the Government and Gosavi community. Finally in 1976, it was held by the Bombay High Court that the said property belongs to the Gosavi community of Pimpalgaon Baswant. It was contended that there was no inhabitation near the temple, math and samadhi and, therefore, in order to guard and take care of the said property, one Mhasu Bhoir was allowed to raise a hut admeasuring 10'X 10' ft. at the North-West corner of the Survey No.437/1. That property is marked as city survey no.297 and Mhasu used to reside in that hut alongwith his family members. The said hut is presently in occupation of Hari son of Mhasu. Hari Mhasu also encroached upon a piece of land admeasuring 6" X 6". Therefore, he was asked to remove the hut and hand over possession of suit site to the Gosavi community but he declined. Hence, regular civil suit no.149 of 1978 was filed against him. It is contended that recently some new huts were constructed. In 1969 the Government had demolished the unauthorised huts. However, later on again some huts were constructed. Vasant Hari Bhoir, (defendant in Regular Civil Suit No.150 of 1978) raised hut in city survey no.292. Babu Bhima Bhoi (defendant in regular civil suit no.151 of 1978) is in possession of the hut marked as City Survey No.296. The hut of Pundlik Bhima Nehare, (defendant in regular civil suit no.152 of 1978) bears city survey no.293 and the hut of Dattu Narayan and Chinchdu Narayan Bhoi (defendant in regular civil suit no.153 of 1978) bears city survey no.294. According to the plaintiffs, all these defendants were in unauthorised occupation of the land belonging to the plaintiffs and, therefore, plaintiffs had filed suits for removal of the huts and for vacant possession of the said land. At the outset, it may be stated that even though in the plaints, the said huts are said to be marked with city survey numbers but later on, it was revealed that these are actually Chalta numbers of city survey record.

3. Defendants contested suits by filing the written statements in the respective suits. In regular civil suit no.149 of 1978, Hari Mhasu Bhoi denied that his father was allowed to construct a hut to guard the property of the Sansthan temple, math and that he was a licensee in respect of said hut. According to him, there was a thick locality near the suit property since long and since formation of the Gram Panchayat, the said hut is recorded as a property of Mhasu Genda Bhoi as Karta of the joint family and after his death, respective hut came in his possession. All the defendants claimed to be owners of the property for a long time and in alternative, they contended that they are in use and occupation of their huts on the suit land for more than 12 years and thus, they have perfected their title by adverse possession.

4. Several issues were framed in each of the suits. In suit nos.150 of 1978, 151 of 1978, 152 and 153 of 1978. The respective defendants examined themselves. The evidence of both the parties recorded in regular civil suit no.149 of 1978 was treated as a common evidence for all the suits. After hearing the parties, the trial Court held that land under each of the huts is part of city survey no.437A/1, which belong to Shri. Martand Dev Sansathan of Gosavi Community. The contention of the plaintiffs in regular civil suit no.149 of 1978 that Mhasu had constructed a hut as a licensee and, thereafter, he had made some encroachment was rejected. The defence of the defendants that they are in possession of the property for 100 years or so as owners or that alternatively they have become owners by adverse possession also came to be rejected. The trial Court came to conclusion that encroachments were made sometimes in May, 1969 and therefore, the plaintiffs are entitled to recover possession of the land under encroachment.

5. Against the judgment and decree passed by the trial Court, the appeal nos.269 of 1986 (in regular civil suit no.149 of 1978), 270 of 1986 (in regular civil suit no.150 of 1978), 271 of 1986 (in regular civil suit no.151 of 1978), 272 of 1986 (in regular civil suit no.152 of 1978), 273 of 1986 (in regular civil suit no.153 of 1978) came to be filed. The First Appellate Court also came to conclusion that suit sites are the part of the survey no.437/A. The Appellate Court also rejected the contention of the plaintiffs that Mhasu Genda Bhoi was a licensee of the Sansathan. The Appellate Court held that the defendants have perfected their title by adverse possession and in the result, contention of the plaintiffs that the defendants had encroached and constructed their huts upon the property of Sansathan and had constructed their huts illegally came to be rejected. In view of this finding, all the appeals were allowed and as a result, the judgment and decrees passed by the trial Court were set aside and all the five suits came to be dismissed.

6. Being aggrieved by the judgment of the First appellate Court, plaintiffs filed five appeals. At the outset, it may be stated that the second appeal filed in Regular Civil Suit No.149 of 1978 against Hari Mhasu Bhoi and in regular civil suit no.150 of 1978 against Vasant Hari Bhoi were dismissed in default and, therefore, only three appeals are before me. They are heard together. In these three appeals original defendants/respondents are Babu Chima Bhoi, Pundlik Bhima Nehare and Dattu and Chinchdu both sons of Narayan. At the outset, it may be stated that because the common judgment was delivered by both the Courts below in all the five matters and common evidence was recorded, I will have to refer to the common evidence but observations will not be applicable to the two appeals, which have been already dismissed and which are not before me.

7. These appeals were admitted by the order dated 15-11-1991 on the grounds f and g, which read as follows :

F. Whether it was legal and proper on the part of the Lower Appellate Court to come to conclusion that the Respondents have become owners of the suit premises by adverse possession ?

G. Whether it was legal and proper on the part of the Lower Appellate Court to come to conclusion that the Respondents have become owners of the suit premises by adverse possession without there being any specific pleading as required for claim of adverse possession ?

8. In view of these two grounds, only point, which needs to be considered is whether the defendants/respondents have pleaded and proved that they have perfected their title on the respective suit sites by the adverse possession for a period of 12 years or more prior to filing of the suits. There is concurrent finding of the facts that suit sites are part of Survey No.437/A. It is proved that the whole of survey no.437/A is divided in four parts bearing nos.437A/1, 437A/2, 437A/3 and 437A/4 and the property belongs to Martand Dev Sansathan of Gosavi community. Record reveals that since 1952 there was dispute between the Government and the Martand Dev Sansathan about the title over this property. Gosavi community had filed a suit for declaration of title against the Government and it was decreed. Finally in 1976, this High Court also held that Martand Dev Sansathan has a title of ownership over the suit property. In view of this undisputed record, there is no dispute that huts of the defendants are on land survey no.437/A belonging to the Martand Dev Sansathan. In view of this, naturally the burden lies on the defendants to establish that they have perfected their title by adverse possession over the suit property for more than 12 years.

9. In P. T. Munichikkanna Reddy and Ors. Vs. Revamma and Ors., AIR 2007 Supreme Court 1753 : [2007 ALL SCR 1582], Their Lordships of the Supreme Court had an opportunity to consider the various aspects and the requirements of the adverse possession. Their Lordships observed in paragraph 5 as follows :

"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile."

Their Lordships also held that for the purpose of adverse possession it is not sufficient to establish that there was an intention on the part of the defendants to possess but it is necessary that there should be an intention to dispossess the true owner. Their Lordships observed that:- it needs to be open and hostile enough to bring the same to the knowledge of the true owner, so that the plaintiff has an opportunity to object to the same. Their Lordships also quoted with approval, the following observations in Vasantiben Prahladji Nayak Vs. Somnath Muljibhai Nayak, 2004 AIR SCW 1704 : [2004(5) ALL MR 432 (S.C.)].

"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff, but commences from the date the defendants possession becomes adverse."

Their Lordships also quoted with approval, the following observations of the Supreme Court in Karnataka Board of Wakf Vs. Government of India and others, (2004)10 SCC 779.

".........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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession........"

"...............In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time wont 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."

Thus it was held that the party claiming adverse possession must prove that his possession is peaceful, open, continuous and hostile to the title of the true owner. Therefore, Their Lordships further observed that enquiry into the starting point of adverse possession i.e. date as to when the paper owner got dispossessed is an important aspect to be considered.

10. In view of the legal position noted above, it is for the defendants to prove that their possession over the suit sites has been peaceful, open, continuous and adverse or hostile to the title of the true owner for statutory period of more than 12 years prior to the filing of the suit by the plaintiffs. The pleadings and the evidence of the parties in respect of adverse possession will have to be scrutinised and analysed carefully in the light of this legal position.

11. Even though the plaintiffs claimed that Mhasu Genda Bhoi was first inducted as licensee and this contention has been rejected by the both the Court below, from the pleadings of the plaintiffs as well as from the evidence led by the parties, it is clear that Mhasu Bhoi was in possession for a long time. The trial Court noted that atleast there was a record from 1937-38 to 1980-81 to show that Mhasu Genda Bhoi and then his son Hari was in occupation of a hut on the suit land. It appears that the defendants had placed on record the extract from the Gram Panchayat record vide Exhibits 101 to 110. The trial Court noted that Exhibits 104, 106, 108, 109 and 110 pertain to the hut of Mhasu Genda Bhoi situated on Survey No.437/A. Therefore, there is sufficient evidence on record about the existence of one hut standing in the name of Mhasu Bhoi since 1937-38 onwards and as per the evidence of D.W.1 Hari son of Mhasu during the life time of Mhasu, they were joint and all the family members were living jointly in the same house. Evidence was recorded in November, 1985 while the suits were filed in 1978. In the cross-examination D.W.1 Hari admitted that his father had died when his son was aged about 5-6 years and he admitted that his son was aged about 30-35 years at the time of recording of evidence. From this, it appears that Mhasu must have died about 25-30 years prior to the recording of evidence. His evidence also shows that during the life time of his father, he himself, his brothers and all family members were residing in the same hut. He admitted that as the time passed and his brothers got married, one by one they constructed the huts and started residing in separate huts. From this it can be gathered that during the life time of Mhasu, all the family was living in one hut and other constructions were made later on. He also admitted that gram panchayat number has been given only to the hut, which was in possession of his father Mhasu and which is now in his possession. He also admitted that the same hut was standing in the name Narayan another son of Mhasu. As pointed out earlier, the trial Court noted that Gram Panchayat extract, Exhibits 104, 106, 108, 109 and 110 pertains to the same hut situated on survey no.437.

12. The trial Court also noted that the remaining documents bearing exhibit numbers 101, 102, 103, 105 and 107 indicate that the houses are situated in Koliwada. As per the evidence of P.W.1 Shankar Gosavi, there is a old koliwada across Agra road. Admittedly, there is a Agra Road abutting the land survey no.437/A and across the road, there is a koliwada . Therefore, the trial Court came to conclusion that these five documents being Exhibits 101, 102, 103, 105 and 107 do not pertain to the huts situated on the land survey no.437/A belonging to the Martand Dev Sansathan and, therefore, no reliance could be placed on them. In view of this it becomes clear that there is a Gram Panchayat record since 1937-38 only in respect of one hut standing in the name of Mhasu and then his son Narayan and then Hari. As far as remaining four huts are concerned, there is no record with Gram Panchayat. The trial Court came to conclusion that in 1969, the Government had demolished the unauthorised huts and they must have come up again in May, 1969 as pleaded by the plaintiffs. As the suits were filed in 1978, according to the learned trial Court, the defendants had failed to prove that they were in adverse possession for more than 12 years prior to filing of the suits by the plaintiffs.

13. The learned 6th Additional District Judge decided the appeal and noted in paragraph 27 of the judgment that Gram Panchayat record is only in respect of house belonging to Mhasu Genda Bhoi, Narayan and Hari sons of Mhasu. The learned Additional District Judge also observed that there is no record in respect of other huts in which the defendants Vasant son of Hari, Babu son of Chima, Dattu son of Narayan and Pundlik son of Bhima are residing. The learned lower Appellate Court noted in paragraph 23 of the judgment that on 13.10.1958, Deputy Collector had passed an order in which it was disclosed that there were some huts on the said land and the Deputy Collector had also expressed surprise that Gosavis, who were claiming title to the land in dispute were not knowing how the huts of Kolis were constructed. Infact, there is nothing to show as to how many huts were there at that time. As per the City Survey, Sheet No.9, prepared in 1969, there were old houses bearing Chalta Nos.292, 293, 294, 296, 297. The learned Additional District Judge noted that if these huts were new, there was no reason why the city surveyor had referred them as old houses. One has to keep in mind difference in the pucca or well built house or building and a hut. Within a short period, a hut may look to be old. As they were only huts, at the most, it can be said that they were old huts but it can not be said when they were constructed. According to the plaintiffs, old houses were demolished in the year 1969 and subsequently they were re-erected. The learned Appellate Court noted that there is no corroboration to the contention of the plaintiffs that the old houses were demolished. Now in view of this, it is necessary to find out when these huts must have been constructed.

14. As per the evidence of D.W.1 Hari Mhasu Bhoi during the lifetime of his father Mhasu, all the members of the family were living jointly in the same house and after that one by one, new huts were constructed. As noted earlier, as per his admissions it appears that Mhasu might have died 25 to 30 years before recording of evidence in 1985. So period of his death may be between 1955 to 1960. D.W. Babu (Regular Civil Suit No.151 of 1978) admitted that he and his father Chima were living together in the same hut. His father died in 1977 i.e. just one year before filing of the suit. He also claimed that his uncle Hari Mhasu used to pay the assessment of his hut and other property and that all the five huts are jointly recorded in the name of Hari Mhasu. This evidence of Babu is contrary to the record. He admitted that Gram Panchayat allots a number to each house and that different numbers are not given to every hut and that the Gram Panchayat has given number only to the house of Hari. D.W. Dattu Narayan (Regular Civil Suit No.153 of 1978) admitted that he does not have old information regarding suit property. Infact he denied that Hari is residing in the house in which Mhasu was residing. This statement of Dattu is contrary to the admission of Mhasu himself. D.W. Pundlik (regular civil suit no.152 of 1978 is not even member of this family. Mhasu was his maternal grandfather. According to him, he was too small when his father died. He does not know when his father and mother died. He did not produce any record about the death of his parents. He tried to state that he and his parents were living in the same house near Gosaviwada. In the cross-examination, however, he admitted that he had grown up in the house of Mhasu Genda. According to him, he was married about 15-20 years and if it is so, as admitted by Hari, Pundlik must have constructed separate house after his marriage. If this evidence is believed, he must have been married between 1965-70. He has not given any specific month or year when his hut was constructed. At the time of recording evidence in 1985, D.Ws. Babu, Dattu and Vasant were aged about 30 years. It means they were young persons aged about 23 years when suits were filed. It cannot be believed that they had constructed huts when they were boys aged 10-11 years.

15. It is admitted fact that just adjoining the suit sites and huts, there is a temple of Gosavi community on the open land. By the side of the temple, there are Tamarind trees. D.W. Hari admitted that P.W.2 Fakira Mohamad Attar used to purchase Tamarind fruits for number of years. P.W.2 Fakira deposed that he was purchasing tamarind fruits from the plaintiffs for the last about 30 to 40 years. According to him, near the trees there was previously only one zopadi or hut and within the last about 10 years 5-6 zopadas or huts were seen. Thus, according to him, except one, all other huts were constructed within last about 10 years. According to the plaintiffs, the huts were constructed in 1969, i.e, within 10 years before filing the suits. The defendants have not specifically pleaded nor proved as to when they had constructed the huts.

16. If the written statements of the defendants are seen, it appears that they have denied the title of the plaintiffs. According to them, the land was never belonging to the Martand Dev Sansathan or to the Gosavi Community. They claimed that they are in possession as the owners. In paragraph 10 of the written statement, Hari also maintained that the land below the huts is owned by the defendants and he specifically denied that the land belonged to the Gosavi community. In his examination-in-chief D.W. Hari also claimed that the defendants are residing as owners of the property. According to him, one Khandu Naik had given this land to his father but there is no writing in this connection. He also admitted that he has no writing or document to show that they are owners of the land below the huts. From this stand of Hari, which is also stand of all the defendants, it appears that defendants claimed to be owners of the property and did not admit the title of the Martand Dev Sansathan of the Gosavi community. As stated earlier, it is settled legal position that the defendant, who claims to have become owner by adverse possession has to plead not only about the actual possession but also that his possession was hostile to the title of the true owner. In P. Periasami Vs. P. Periathambi, (1995)6 SCC 523, the Supreme Court had ruled that "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." This authority was quoted with approval in P. T. Munichikkanna Reddy and Ors. Vs. Revamma and Ors. wherein Their Lordships observed as follows :

"Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami Vs. 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."

To claim adverse possession against the plaintiffs, i.e., the true owners, it was necessary for the defendants to admit title of the plaintiffs and then to claim possession adverse and hostile to the title of the plaintiffs. However, in the present case, pleadings as well as the evidence of the defendants show that they claim to be owners of the property for which they have no evidence and they did not admit the title of the plaintiffs. Thus, their plea is inconsistent with plea of adverse possession. On this ground also the defendants must fail in respect of plea of adverse possession.

17. Taking into consideration the evidence on record, it becomes clear that land survey no.437/A belongs to the plaintiffs. Originally since 1937-38 or so there was one hut on that land wherein Mhasu Genda Bhoi and his family members were residing jointly. Defendants have not specifically stated the month or the year when they had constructed remaining huts on the said land. Besides this, as pointed out earlier, they have taken inconsistent stand. On the one hand, they claim to be owner of the land and on the other hand, they claim to have perfected their title by adverse possession. These inconsistent pleas can not stand together. It is not clear from their pleadings and evidence since when their possession over the land under the huts had become adverse to the title of the plaintiffs. As there is no record with the Gram Panchayat about the huts of the defendants Babu son of Chima, Dattu and Chinchdu sons of Narayan and Pundlik Bhima Nehare, who are the defendants in the present three appeals nor there is any other documentary or reliable oral evidence, it can not be said from what date, their possession over the land had become adverse to the title of the plaintiffs. Therefore, it must be held that defendants have failed to prove that they had perfected their title over the suit sites by adverse possession hostile to the title of the plaintiffs for more than 12 years before filing of the suit in 1978. In view of this, I find that the trial Court was justified in passing the decree against these defendants. The Appellate Court committed serious error in holding that the defendants had perfected their adverse possession over the suit sites. In view of this, all these three appeals deserve to be allowed.

18. For the aforesaid reasons, all these three appeals are hereby allowed. Impugned judgment passed by the learned First Appellate Court in Appeal Nos.271 of 1986, 272 of 1986, 273 of 1986 stands set aside and the judgment and decree passed by the trial Court in respect of Regular Civil Suit Nos.151 of 1978, 152 of 1978, 153 of 1978 are hereby restored.

Appeals allowed.