A claim of adverse possession can be established when the possessor has openly asserted ownership for 12 years without interruption, despite initial permissive circumstances.

JUDGMENT :

ANIL KSHETARPAL, J.

1. In this regular second appeal, the defendants assail the correctness of judgment passed by the first appellate Court, which in turn has reversed the judgment passed by the trial Court.

2. On 15.10.1985, the respondents-plaintiffs filed a suit for declaration that they are the owners in equal shareholding of the suit land measuring 42 kanals and 13 marlas comprised in Khewat and Khata No. 326/516, as per Jamabandi for the year 1979-1980, located in village Ghattkar and the entries recorded in favour of the defendants are liable to be corrected with a consequential relief of injunction restraining the defendants from taking possession from the plaintiffs. In substance, the plaintiffs claim to be in possession of the suit land for the last hundred years and they also claim to be in cultivating possession for more than 12 years to the knowledge of the defendants without payment of any rent or chakota or any interruption from the defendants, hence, they have acquired right of ownership by way of adverse possession from their forefathers and from 22.12.1969, when they challenged the title of the defendants. The defendants while filing the statement contested the case. It was claimed that the suit land belongs to the defendants and the plaintiffs are in possession as gair marusi i.e. tenant at will on payment of land revenue. Hence, they cannot claim to be the owners of the suit property by way of adverse possession. It was submitted that the plaintiffs are in permissive possession in lieu of the work, which their predecessor used to do as blacksmith for the defendants.

3. The trial Court held that the plaintiffs have proved that they are in adverse possession of the property for more than 12 years without any interruption, however, dismissed their suit after finding that the suit has been filed beyond the period of limitation. The plaintiff filed an appeal, which has been accepted by the learned District Judge. This appeal was admitted for regular hearing and now it has come up for hearing.

4. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook along with the requisitioned record.

5. The learned counsel representing the parties have filed their respective synopsis containing the gist of their arguments.

6. The synopsis submitted by the learned counsel representing the appellants reads as under:-

“That the respondent No. 1 to 4/plaintiff filed a suit for declaration to the effect that they are owner and in possession of the land in dispute to the extent of 7/8 share and also alleged that they are cultivating the land as owner for the last 100 years and in case there was any deficiency in the title that has been fulfilled on the basis of the adverse possession and also prayed that they are owner in possession in equal share and the entry in the revenue record may be corrected.

That the finding of the Ld. Courts below that the respondents/plaintiffs have become owner by adverse possession is contrary to pleading, evidence and law. The respondent plaintiff claimed themselves to be owner in possession cannot claim or become owner by way of adverse possession. The plea of adverse possession can be taken against a true owner and the person claiming adverse possession must prove that his possession is a hostile possession by clearly asserting hostile title in denial of title of true owner and must be peaceful, open and continuous in publicity as held by the Hon'ble Supreme Court of India in the matter of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & others, (2009) 16 SCC 517 That if a person claims a lawful title, it cannot be considered to be adverse as held by the Hon'ble Supreme Court of India in the matter of Annasaheb Bapusaheb Patil Vs. Balwant @ Balasaheb Babusaheb Patil (Dead) by LRs. & heirs, (1995) 2 SCC 543 as well as in the matter of Vidya Devi Vs. Prem Parkash , Law Finder Doc ID#37513.

The Hon'ble Supreme Court ha