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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
S.B. Mhase, J.
Kunnabai wd/o Ganeshlal (deleted) others ..... Appellants.
Versus
Ashru son of Waman another .... Respondents.
Second Appeal No. 200 of 1982, decided on 31-7-1996.
Advocates appeared :
R.L. Khapre, for the appellants.
S.R. Deshpande, for respondent.
Articles 142 and 144-5ee Limitation Act, 1963, Section 31, Articles 62 and 64.
Section 31, Articles 62 and 64-Limitation Act, 1908, Articles 142 and 144-Evidence Act, 1872, Sections 3, 9 and 61-Jahangir land settled and apparted between occupants-Adverse possession-Claimed by original tenants-Basis-25 years old possession-Held-It being a mixed plea involving facts, limitation could not start in absence of proof of commencement of adverse possession.-What is important to be taken into consideration while scrutinising the case of the tenants claiming adverse possession in that the said tenants/defendants are under obligation to point out as to at what point of time, they started claiming possession adverse to the knowledge of the true owner. Pleading and evidence in this respect is absent. 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 the contemplated under Article 142 or Article 144 has never place so as to hold that the period of limitation provided under these two Articles has expired prior to the coming into force of the Indian Limitation Act, 1963
Section 31, Articles 62 and 64-Limitation Act, 1908, Articles 142 and 144-Suit on Jahangir land Ownership of land, land abolished under the Jahangir Land Act-Settlement on occupant-Claim by tenants-Having adverse possession for 25 years-Held-Adverse possession is attached with caution to actual owner in present case there is no such evidence.-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 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 the true owners 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 on to prove their claim of ownership by adverse possession.
Section 31, Articles 62 and 64-See Limitation Act, 1908, Articles 142(A).
2. The facts of this appeal are as under :--
The suit properties involved in this suit are the properties of Jahagirdar, viz. Nurul Jiyauddin son of Nurul Attkiya. The said Jahagirdar had executed lease of the suit land in favour of three persons viz., Sakharam, Ganeshlal and Motilal permanently under the registered deed of lease dated 28-6-1945. The defendants were recorded annual tenants of the suit land in the Record of Right. Therefore, Sakharam and others including Jahagirdar served a notice to quit under section 74(2) of the Berar land Revenue Code and then filed a suit bearing No. 94-A/47 against the defendants for possession of the suit land. This suit came to be dismissed. As the plaintiff's father and other co-lessees were specified tenants in lawful possession of the suit, the Deputy Commissioner of Buldana by his order dated 30-6-55 passed in Rev. Case No. 2/52(1)/1954-55 declared plaintiff's father and other co-lessees as occupants of the suit land as per Exhibit No. 33 under the provisions of the M.P. Abolition of Proprietary Rights, Estates, Mahals, Alienated Lands Act, 1950 (for short the 'Act of 1950') on payment of requisite amount of land revenue. The said order conferring occupancy rights on plaintiff's father and other co-lessees was final and binding on defendants. Afterwards on 20-12-54 a partition took place between plaintiff and other co-lesses in which the suit land was allotted to the share of plaintiff's share. Thus, the defendants had no right whatsoever in the suit land. Even then the defendants denied the rights of the plaintiff and obstructed the possession of the plaintiff over suit land. Thus, the plaintiff made application before Tahsildar but the Tahsildar did not decide the rights and hence the suit was filed for possession.
3. Thus, it will be clear that in this appeal, the plaintiffs are permanent lessees to whom after abolition of Jahagirs, lands have been granted as per the provisions of the Act of 1950. It will be further clear that the defendants in that suit were and are the annual tenants against whom on the basis of deed of 28-6-45, suit was filed by the plaintiffs in the year 1947 after issuing notice to quit under section 74(2) of the Berar Land Revenue Code, wherein decree for possession has been refused in 1950-51. All these facts, even though disputed by the defendants have been proved by the documents on record. The defendants are claiming the property as owner and according to them, they are owners by virtue of adverse possession. Present Suit No. 267/82 filed by the plaintiffs was dismissed by Civil Judge, Jr. Division, Mehkar on 12-10-65 and the Civil Appeal No. 83/66 filed against the judgment was also dismissed by District Judge, Buldana on 31-1-1981 and thus, the present second appeal is by the plaintiffs, who were plaintiffs in Regular C.S. No. 262/82.
4. Both the lower courts have found that the defendant/ respondent have matured their title by adverse possession. However, the learned Counsel for appellants/plaintiffs Mr. R.L. Khapre contended that the plea of adverse possession raised by the respondents/defendants have not been properly constituted in the written statement by the respondent. He submits that the plea of adverse possession is mixed plea of facts and law. He submitted that as per Order VI, Rule 2 of the Code of Civil Procedure, the defendants should have pleaded a concise statement of material facts on which the defendant rely for the purpose of maturity of title by him by virtue of adverse possession. According to the learned Counsel, the pleadings in written statement do not show as to when the
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