1996 Supreme(Bom) 418

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
S.B. Mhase, J.
Nandlal Sakharam ..... Appellant.
Versus
Babu Bhika others ..... Respondents.
Second Appeal No. 17, 202 203 of 1982, decided on 31-7-1996.
Advocates appeared :
R.L. Khapre, for appellant.
S.R. Deshpande, for respondents.

Headnote:Berar Land Revenue Code, 1928

       Section 55-M.P. Abolition of proprietary Rights, Estates, Mahals, Alienated Lands Act, 1950, Sections 2(p), 69, 68(2)-Abolition of Jahagirs -Where the property of Jahagir vested with Government, their rights extinguished and no adverse possession can be claim against Government.

       Section 74(2)-M.P. Abolition Of-Proprietary Rights, Estates, Mahals, Alienated Lands Act, 1950, Section 3(1)-Limitation Act, 1963, Section 31 Article 65-Court ordering defendants to vacate the based land-Order in 1950-51-Relief sought on ground -They are in possession-Should not be ousted-Adverse possession-Proof-Held-A mere averment is not of any use to set up ownership-Sufficient proofs with materials are required.-The pleas which are based on the question of facts shall, contain those material facts which constitute the said plea. In the absence of averment of material facts constituting facts cannot be controlled and thereby defendants or person claiming adverse possession is at liberty to lead any evidence which may be by way of surprise to the plaintiffs. Not only that, but the relevancy of facts of the material facts cannot be decided by the Trial Court a while recording evidence whenever objected by the owner of the property. This gives an opportunity for the person claiming adverse possession to take the other party by surprise which ultimately affects case of true owner and, therefore, Court is of the view that a plea of adverse possession is a mixed plea based on facts and law. Therefore, it was necessary for the present respondents/defendants to constitute a plea of adverse possession based on material facts and particulars on which the defendants wanted to rely to prove their claim of ownership by adverse possession.

       Section 74(2)-See-Limitation Act, 1963-Section 3, Article 65.

       Section 74(2)-Limitation Act, 1908, Articles 142 and 144.

       (Indian) Limitation Act, 1908

       Section 31, Articles 142 and 144-Berar Land Revenue Code, 1928, Section 74(2)-Adverse possession-Where the plea of adverse possession was a mixed plea based in facts and law, then respondents have to constitute a plea of adverse possession based on particulars on which he rely to prove their claim of ownership by adverse possession.-On the basis of these pleadings the issue of adverse possession is being considered by the Courts below. Adverse possession refers to actual and exclusive possession, coupled with the intention to hold as owner, and accompanied by such an invasion of the rights of the true owner as gives the later a cause of action to sue for recovery of possession at once. Thus, the facts constituting the adverse possession must be of such nature that the property in possession of the person claiming adversely must be the property belonging to others and a person in possession claims a right to own the said property. That means, the possession must be with an intention or with an animus to own the said property with a hostility to the true owner. Thereby, it becomes necessary that the possession with the person must be of such nature that it gives caution to the true owner of the property that if, he does not take steps for obtaining possession, then the person in possession claiming adversely will mature his title into ownership. The person claiming adverse possession will also have to point out as to since when i.e., at what point of time, he started claiming possession adversely to the real owner and further will have to satisfy that even though his possession was of such nature that it cautioned the real or true owner of the property to take steps for obtaining possession, he remained into possession of the property uninterruptedly, peacefully, without any obstruction from the true owner of the property. Therefore, the concise statement of material facts constituting plea of ad verse possession are necessary. A bare statement without there being any material particulars pleaded in the written statement. If, allowed be proved will lead the plaintiffs or true owner of the property into confusion and take him to surprise at the trial. The pleadings in the present case only point out that the defendants/respondents are in possession of suit land since their father as owner and they were cultivating the land for a period of more than 12 years as owner as against the whole world continuously and without any obstruction. The plea does not point out as to how his entry in the land was effected and secondly, as to how that entry was adverse to the true owner. It, further does not point out against which of the owner the possession was being claimed as adverse possession. An ommbus plea that as against the whole world his possession was adverse, cannot be said to be a plea of adverse possession. Defendants have not pleaded material facts which give sufficient notice to the true owner of the property that the defendants are claiming possession over the property adversely to the true owner of the property i.e., to the present appellants. He further does not point out the material facts which are in consonance with the fact of ownership and which constitute the ownership. It is further pertinent to note that it appears that his father initially came in possession, because according to the defendants, from their father more than 25 years the defendants are cultivating the lands as owner. Therefore, it is a case of teaching. Under these circumstances, the time when the possession became adverse and the material facts pointing out adverse claim from the particular point of time are required to be pleaded. In the absence of such pleadings, not only the true owners/plaintiffs, but, the Court is also put at loss of give finding of facts on this aspect of the matter and thereby, total plea in the present matter, even though pointing towards the adverse possession, is a vague plea without containing concise statement of material facts and, therefore, it cannot be said that the proper pleas raising claim of adverse possession have been constituted. The pleas which are based on the question of facts shall contain those material facts which constitute the said plea. In the absence of averment of material facts constituting the said plea, the evidence in respect of the material facts cannot be controlled and thereby, defendants or person claiming adverse possession is at liberty to lead any evidence which may be by way of surprise to the plaintiffs. Not only that, but the relevancy of facts of the material facts cannot be decided by the trial Court while recording evidence whenever objected by the owner of the property. This gives an opportunity for the person claiming adverse possession to take the other party by surprise which ultimately affects case of true owner and, therefore, Court is of the view that a plea of adverse possession is a mixed plea based on facts and law. Therefore, it was necessary for the present respondents/ defendants to constitute a plea of adverse possession based on material facts and particulars on which the defendants wanted to rely to prove their claim of ownership by adverse possession.

       Articles. 142 and 144-Berar Land Revenue Code, 1928, Section 74(2)-Limitation Act, 1963, Section 31-Court order of 195O-51-For ousting defendants from leased land Claiming adverse possession without any material evidence-Lower Court holding possession from when land was leased first in 1935-Held-Period of limitation has to be calculated from the date of adverse possession.- The evidence of the adjoining owner of the land came to be considered not from the view point of the maturity of adverse possession as against the true owner of the property or was sufficient enough to caution the true owner of the property. Said approach was wrong, because those witnesses have only deposed about possession of respondents, but, have not deposed any fact which would point out acts of ownership by respondent to the knowledge of appellant/plaintiff. Therefore, Court is of the opinion that the very finding that the possession became adverse since 1934 by the lower Appellate Court in the facts and circumstances was bad in law. On the contrary, under Article 144 of the Limitation Act, 1908, 12 years are required to be calculated from the date when the possession of the defendant becomes adverse to plaintiff. There is no pleading and evidence at least in the present case as to when the possession of the defendants/respondents became adverse to the plaintiffs appellants. All this discussion will show that in any circumstances the finding recorded by the lower Appellate Court that since 1934 upto 1955 possession being adverse, the plaintiffs title has been extinguished is bad in law and Court is of the view that the cause of action if, at all as contemplated under Article 142 or Article 144, has never taken place so as to hold that the period of limitation provided under these two Articles has expired prior to the coming into force the Indian Limitation Act, 1963 and therefore, the contention of respondent that present suit which has been filed after the coming into force of the Act of 1963 is not enable in law.

       Articles 142 and 144-Code of Criminal Procedure, 1898, Section 107- Tenants claiming land-On the basis of adverse possession-Proof-Criminal proceedings were against them in 1952-Under Section 107, Cr PC, 189B-Possession also in 1952-Held-Criminal possession granted by Civil Court-It cannot be a proof of possession,-The appellants have pleaded in the plaint itself that they were dispossessed in December 1952 and accordingly, the appellants have deposed. As against this evidence, the case of respondents is of continuous possession. In the absence of any challenge to the statement and evidence of the appellants that the appellants were dispossessed in 1952 and in absence of specific case by the respondents that the appellants were dispossessed by the respondents sometime before September 1952 being pleaded and established Court conclude that the appellants at the most could have been said to be dispossessed in December 1952 after getting possession as per the decree passed in the civil suits of 1946 and if, the period from December 1952 is calculated, the suit filed on 1st October, 1964 is within a period of limitation, as provided under Article 66 of the Limitation Act, 1963 and even if, the possession is said to be adverse from December 1952, it does not mature in full title because on 1st October, 1964 as the period of 12 years required for maturity of adverse possession was not completed. Therefore, the findings recorded by the lower Appellate Court that the adverse possession commenced sometime before September 1952 and, therefore, the ownership by adverse possession was completed prior to 1st October, 1964 when the suit came to be filed, was bad in law.

       Limitation Act, 1963

       Section 3, Article 65-Berar Land Revenue Code, 1928, Section 74(2)-Defendant ordered to be vacated-By order of Court in 1950-51Adverse possession-Proof-Relief sought-Ground-Long-lasting possession by adverse possession is required to be supported by facts-Submitted evidences do not support any possession.-All this discussion will show that in any circumstances the findi.1g recorded by the lower Appellate Court that since 1934 upto 1955 possession being adverse, the plaintiffs title has been extinguished is bad in law and Court is of the view that the cause of action if, at all as contemplated under Article 142 or Article 144, has never taken place so as to hood that the period of limitation provided under these two Articles has expired prior to the coming into force the Indian Limitation Act, 1963. Therefore, the contention of respondent that present suit which has been filed after the coming into force of the Act of 1963, is not tenable in law in view of the provisions of Section 31, thereof, is not proper and i reject the said contention of behalf of the respondents.

       Section 31-See Limitation Act, 1908, Articles 142 and 144.

       Section 31, Article 65-See - Land Revenue Cod, 1928, Section 74(2).

       M.P. Abolition of Proprietary Rights, Estates, Mahals, Alienated Lands Act, 1950

       Sections 3(1), 4, 69 and 68~ants-Abolition of rights-Adverse possession sought by tenant- Civil Court already passing eviction order in 1950--Held- The rights given under Jahangirdari Act extinguished along with the Act itself-Any further rights could only be granted by present Government with certain premium liable to be paid.- The net result of Sections 68 and 69 is that the person who is specified tenant is only entitled to obtain a status of occupant on certain payments to the Government. Those provisions speak about the act of conferral of the occupancy rights on payment of certain premium and thereafter, the said person is liable to pay annual/and revenue to the Government. These provisions have been analysed for the purpose that except the specified tenant, no other person is entitled to obtain status of occupant, thereby, not only the Jahangirdars stand excluded from getting the land, but also the other persons who are not specified tenants claiming through the Jahangirdars stand excluded. Therefore, the respondents were not entitled for any grant or regnant of the said land.

       Section 3(1)-See Berar Land Revenue Code, 1928, Section 74(2).