Possession under a contract is not permissive if occupant asserts ownership; adverse possession requires clear hostility, which was lacking in this case.

Judgment :

Bibhu Datta Guru , J.

1. By the present appeal under Section 100 of the CPC, the appellant/plaintiff challenging the impugned judgment and decree dated 16/08/2005 passed by the learned District Judge, Kabirdham, Kawardha, C.G. in Civil Appeal No.39-A/2004 (Shafi Mohammad Vs. Lalaprasad & Ors) arising out of the judgment and decree dated 11/05/2001 passed by the learned 2^nd Civil Judge Class-I, Kawardha, C.G. in Civil Suit No.13A/2001 [Lala Prasad Vs. Safi Mohammad & Ors] whereby the learned Appellate Court allowed the appeal filed by the defendant/respondent No.1 and reversed the judgment and decree passed by the trial Court. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

2. The instant appeal was admitted by this Court on 23.11.2005 on the following substantial question of law :

“1) Whether the finding of the lower Appellate Court that the nature of possession of the plaintiff was permissive possession and not hostile is legally correct particularly, when the plaintiff was in possession of the property since 1977 on the strength of agreement to sale?"

ii) "Whether the first Appellate Court was justified in decreeing the counterclaim of the defendant which was filed after more than 12 years for delivery of possession on the basis of agreement?"

iii) "Whether the appeal preferred by the defendant before the First Appellate Court was liable for dismissal for not filing proper Court-fee?”

3. (a) The plaintiff preferred a suit for specific performance of the contract or, in the alternative, for declaration, pleading inter alia that on 20.08.1977, Yusuf, the father of defendant No. 1, entered into an agreement to sell the suit land bearing Khasra No. 133/3, area 0.70 decimal, for a consideration of Rs. 1,951/-. On the same day, he received Rs. 1,000/- in cash as advance in the presence of witnesses, and a receipt to that effect was executed before the witnesses. Further, it was agreed in writing that the remaining amount of Rs. 951/- would be paid at the time of execution and registration of the sale deed. Possession of the suit land was delivered to the plaintiff on the same day. The agreement was initially written on plain paper affixed with a revenue stamp. Thereafter, on the same day, a stamp paper worth Rs. 2/- was purchased and the above facts were reiterated and reduced into writing on stamp paper as well. A period of 15 days time was granted to the father of defendant No. 1 for execution of the sale deed. Even after the expiry of 15 days, he did not execute the sale deed in favour of the plaintiff. Whenever requested, he kept postponing the matter by saying that the land was already in the plaintiff’s possession and there was no urgency. The plaintiff has been in peaceful and continuous possession of the suit land till date.

(b) About six years prior to filing of the suit, the father of defendant No. 1 required money for medical treatment, whereupon he called the plaintiff, and the plaintiff paid him the balance amount of Rs. 951/- for his treatment. At that time, the father of defendant No. 1 assured that he would execute the sale deed after recovery from illness; however, he died. The legal heirs of Yusuf, namely defendant Shafi Mohammad and defendant No. 2, the daughter of Yusuf, were fully aware of the said agreement, yet they also failed to execute the sale deed in favour of the plaintiff despite repeated requests. Since the date of the agreement dated 20.08.1977, the plaintiff has remained in continuous, peaceful posses