Possession must be open, continuous, and adverse to establish adverse possession; failure to prove this invalidates claims of ownership.

JUDGMENT :

Gauri Godse, J.

BASIC FACTS:

1. This appeal is preferred by the original defendant to challenge the concurrent judgments and decrees directing the defendant to deliver possession of the suit land. The decree also directs payment of mesne profits to the plaintiff. The suit is filed for possession on the ground that the plaintiff is the owner of the suit property and the defendant is occupying the same unauthorizedly. The second appeal is admitted vide order dated 22^nd April 1994 on the question of law framed in ground no.10, which reads as under:

“10. Now, it is well – settled law that if the plea of adverse possession is raised and if the defendant proves that the defendant is in possession for more than 12 years, whether the defendant establishes or fails to establish the plea of adverse possession, it cannot save the starting point and ending point, so far as the limitation is concerned. A.I.R.1963 Mysore 1 is the first and the leading case and the principles laid down therein are not even considered.”

PLAINTIFF’S CASE:

2. The suit property is a landed property originally owned by one Baban Gaikwad, i.e. husband of the respondent (plaintiff). Baban Gaikwad died issueless on 13^th January 1971, and all his properties, including the suit property, devolved upon the plaintiff. At the relevant time, the plaintiff was a minor aged 17 years. After the death of Baban, the plaintiff’s name was recorded in the revenue record. Since the plaintiff was a minor, the properties were looked after by the plaintiff’s father as her guardian. The appellant (defendant) is the real sister of the plaintiff. The defendant got her name recorded in the 7/12 extract by a Mutation Entry No.49 dated 7^th December 1971. The plaintiff’s father expired in 1982, and thereafter, the plaintiff started managing all her properties, including the suit property.

3. On 26^th March 1984, the plaintiff learnt for the first time of the revenue record in the name of the respondent. Hence, she applied to delete the respondent’s name and prayed to enter her name in the revenue record. It is the plaintiff’s contention that on 26^th March 1984, she learnt about the Mutation Entry No.49. Hence, on 12^th June 1984, the plaintiff filed an application for the correction of the mutation entry. After the necessary inquiry, the defendant’s name was deleted vide order dated 12^th October 1984, and the plaintiff’s name was recorded in the revenue record by Mutation Entry No.182. However, the defendant was in possession of the suit property. Hence, the plaintiff filed the suit for possession on 29^th June 1987.

DEFENDANT’S CASE:

The defendant filed a written statement and denied the suit claim. She contended that she had been in possession of the suit land since 1971 as an owner. As per the application dated 7^th December 1971, the defendant’s name was entered in the record of rights by mutation entry no. 49, as the land was gifted to her by the plaintiff. She claimed to have spent huge amounts on improvements to the land. In the alternative, the defendant claimed to have perfected her title by way of adverse possession.

FINDINGS BY BOTH COURTS:

4. The trial Court held that the plaintiff is the owner of the suit land, and it was proved that, for the first time on 26^th March 1984, she learnt of the revenue record showing the defendant’s name as the owner of the suit land. Thus, the trial Court held that the defendant was a trespasser on the suit land and was not entitled to continue in possession. The defendant’s contention that she was in possession of the suit land since 1971 as an owner was