2009 Supreme(Bom) 1400

In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE R.M. BORDE
Ganpatrao s/o Ramji Nagul & Another
Versus
Dattatrya Guru Daulatgiri Maharaj & Another
Second Appeal No.85 of 1993
Decided on : 16-10-2009

Headnote:Specific Relief Act, 1963 - Section 34 - Registration Act, 1908, Sections 17 and 49 - Transfer of Property Act, 1882, Section 123 - Suit for recovery of possession - Plea of adverse possession by defendant - Plea of - Starting point of - Community plot given to defendant-1, Poojari to look after temple - Assumed by defendant-1 as his own and alienated a part of it to defendant-2 by a deed - Transfer by gift deed of 1958 not registered - Held - Unregistered gift deed have no effect on entitlement of plaintiff (members of community) - Suit filed by plaintiffs on behalf of community in representative capacity - Findings of Courts below that defendants got title by adverse possession contrary to pleadings and evidence - Plea of adverse possession will not commence unless former plea of title is renounced - No starting point or animus of adverse possession to knowledge of plaintiffs - Plea of adverse possession not tenable - Plaintiff entitled to possession. - What is required to be proved by plaintiffs for claiming recovery of possession is their entitlement/title in respect of the property. It is admitted fact that the property belongs to the Padmashali Samaj and the suit is presented by the plaintiffs in representative capacity they being the members of the Padmashali Samaj. Thus, title of Padmashali Samaj to the property is not disputed and once the plaintiffs prove their title, the onus of proof would be on other side i.e. on the defendants to prove the claim of title by adverse possession. Defendants in the instant matter have claimed title by adverse possession. It would be thus essential to find out as to whether the defendants have established their title by virtue of adverse possession. Both the Courts below have recorded finding that the defendants have proved their claim of title by adverse possession. However, finding recorded by the Courts below is in conflict with the settled position of law and is also not in conformity with the pleadings and evidence placed on record by the defendants. Defendants have categorically stated in their written statement that defendant No. 2 has assumed possession of the property in pursuance to execution of the gift deed effected by members of the community on 28.10.1958. Defendant No. 2 has been put in possession in pursuance to execution of the gift deed. Thus defendants have claimed their title on the strength of the unregistered gift deed and have also contended that they have been put in possession by the members of the community in pursuance to the gift deed executed in 1958. Thus induction of the defendants by plaintiffs or members of the Samaj is by virtue of execution of the gift deed in 1958.

        Defendants thus claim themselves to be the owners of the property on the strength of the gift deed and at the same time, they are claiming their title by adverse possession from the date of their induction in possession in pursuance to execution of the gift deed. Pleadings raised in paragraph No. ’G’ of the additional written statement are mutually in conflict. Defendant in the instant matter is claiming title in himself on the strength of the unregistered gift deed and at the same time is basing his claim adverse to the plaintiff on the basis of the same gift deed executed by members of the community. It is essential in a case where the plea of adverse possession is projected that the defendant has to admit the plea that some one else was the owner of the property.

       Thus in the instant matter, defendant No. 2 claims that he is put in possession in pursuance to execution of the gift deed in his favour by the members of the community in 1958 and has further claimed his title to the property on the basis of said unregistered gift deed. At the same time, defendant has claimed is adverse possession and claimed that he has been put in possession in pursuance to the gift deed and his possession is open to the knowledge of the members of the community. Both the pleas raised by defendant are mutually inconsistent and cannot be entertained. Defendant is claiming that he has been put in possession by the members of the community in 1958. Thus induction of defendant over the proper is with the consent of the community. It is not known as to from what point of time possession of the defendant became adverse to the real owner. Defendant has neither pleaded the date or period of commencement of his adverse possession nor has led any evidence to show that there was any animus or intention made known to the plaintiff that the possession of the defendant is adverse to owner, Apart from the actual and continuous possession which are amongst other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. It is also necessary for the person who claims adverse possession to set up title hostile to the tile of the true owner. Thus the starting point of limitation has neither been pleaded nor has been proved by the defendants.

       However, in the instant matter, defendants have not pleaded the starting point of limitation. They have claimed that their induction in possession by plaintiff is in pursuance to execution of the gift deed and at the same time, they claim their possession adverse to the true owner from the date of their induction in possession. Defence raised by defendants in their written statement is mutually contradictory and thus, it cannot be said that the defendants have substantiated their case in respect of perfection of their tile by virtue of adverse possession.

       Turning to the case in hand as has been observed in preceding paragraphs that the defendants are claiming their induction in possession on the strength of a gift deed executed by the members of the Padmashali Samaj, at the same time defendants claim that their possession is hostile to the interest of the members of the community. Thus the pleadings raised in the written statement in respect of adverse possession are in mutual conflict with each other Defendants have not pleaded nor have placed evidence on record as to from what point of time their possession turned adverse to the true owner. Defendants have neither pleaded nor have led evidence in respect of the necessary animus on their part for performing their title to the property by adverse possession. The essential ingredients for claiming perfection of title by adverse possession have neither been pleaded nor proved by the defendants Mere continuance in possession for a period of more than 12 years in itself is not sufficient for holding that the defendants have perfected their title by virtue of adverse possession. All the ingredients necessary for arriving at the conclusion as stated in above referred paragraphs are required to be proved and those have neither been pleaded nor proved by the defendants. Both the Courts below have not applied their mind to these aspects and have recorded erroneous findings in respect of perfection of title by defendants by virtue of adverse possession. Plaintiffs have claimed their title to the property on behalf of the community. It has not been controverted by the defendants also that the property belonged to the Padmashali Samaj. Thus plaintiffs have discharged their burden in proving their title and as such are entitled to claim possession of the property in dispute. Defendant No. 2 had no title to the property and it cannot be said that by virtue of unregistered gift deed executed in 1958 by the members of the community he has acquired title to the property. Defendant No. 2 therefore was not entitled to alienate the property in favour of defendant No. 1 by executing sale-deed on 27.12.1969. Sale deed executed by defendant No. 2 in favour of defendant No. 1 therefore does not bind right, title or entitlement of the plaintiffs in relation to the property, sale-deed is in-operative as against the rights, title and entitlement of the plaintiffs. Plaintiffs are thus entitled to claim recovery of possession of the suit property. Property is in possession of defendant No. 1 and he has no entitlement in retain the same on the strength of sale deed got executed by him from defendant No. 2.

       In the result appeal deserves to be allowed and the same is accordingly allowed. Judgment and decree passed by the trial Court on 17.2.1984 in Regular Civil Suit No. 546/1981 which has been confirmed by the First Appellate Court in Regular Civil Appeal No. 90/1984 on 20.8.1992 is quashed and set aside. Suit presented by plaintiff is decreed. Plaintiffs are entitled to recover possession of the suit property from defendants and defendants No. 1 shall handover possession of disputed property to plaintiffs. Registered a sale deed executed by defendant No. 2 in favour of defendant No. 1 on 27.12.1969, is inanective/inoperative as against the right title and entitlement of the plaintiffs.