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ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Girish Chandra -Appellant
Versus
Sheo Nath -Respondent
Second Appeal No. 1753 of 1976
Decided On : 22-05-2013
Adverse possession is a plea to usurp title over immoveable property of another/others which otherwise a claimant does not possess. Its successful claim would mean that real owner shall be denuded of his title and the same would stand conferred upon the claimant. Pleadings, thus, are of utmost importance in order to claim a right founded on adverse possession. They have to be very clear and emphatic and to the extent of covering every necessary ingredient to satisfy the claim of adverse possession. Adverse possession cannot be asserted, unless and until there are clear and specific pleadings, satisfying the basic aspects thereof. The person claiming adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The burden of proof lies on the party who claims adverse possession. He has to plead and prove that his possession is peaceful, open, continuous, and hostile to the true owner. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is a question of fact and must be specifically pleaded and proved.
Fact of the Case:
The plaintiff filed a suit seeking a declaration that the defendant has no concern with the property in dispute and his name has wrongly been entered in revenue records. The trial court held that the plaintiff is the owner of the land, but the lower appellate court reversed this finding. The plaintiff appealed to the High Court, which remanded the case to the lower appellate court to decide the issue of adverse possession. The lower appellate court, after considering the evidence, held that the defendant was in possession of the land as a sub-tenant and not as a joint owner with the plaintiff. The plaintiff appealed to the High Court, arguing that the lower appellate court did not consider the order of the Additional Commissioner, which set aside the order of the Tehsildar. The High Court set aside the judgment of the lower appellate court and remanded the case for fresh consideration.
Finding of the Court:
The High Court held that the lower appellate court failed to consider the order of the Additional Commissioner, which set aside the order of the Tehsildar. The High Court also held that the lower appellate court did not properly consider the issue of adverse possession and did not make a finding on the exact date from which the adverse possession of the defendant started. The High Court remanded the case to the lower appellate court to decide the issue of adverse possession and other remaining questions.
Ratio Decidendi: The High Court held that the lower appellate court erred in not considering the order of the Additional Commissioner and in not properly considering the issue of adverse possession. The High Court remanded the case to the lower appellate court to decide the issue of adverse possession and other remaining questions.
Result: The High Court allowed the appeal, set aside the judgment of the lower appellate court, and remanded the case for fresh consideration.
1. This is plaintiff's appeal under Section 100 Code of Civil Procedure (for short "CPC").
2. Suit No.87/9 of 1951 under Section 229/209(C) of U. P. Zamindari abolition and land reforms act, 1950 (hereinafter referred to as Act No. 1 of 1951) was instituted by Girlish Chandra and three others, seeking a declaration that the defendant no.1 Shiv Nath has no concern with the property in dispute and his name has wrongly been entered in revenue records which should be corrected by issuing appropriate direction to concerned Tehsildar.
3. Defendants no.2 to 10, though, were impleaded but para 5 of the plaint stated that with respect to dispute in question, they have no concern. Since, in the Government record, their names are mentioned along with plaintiffs, therefore, they have also been impleaded as defendants.
4. The plaint was filed in the Court of Additional Sub Divisional Officer, Saidpur, District Ghaziapur.
5. Shiv Nath Aheer, defendant no.1 contested the suit by filing written statement dated 29.11.1957. In the additional pleas, he claimed that plaintiff is not Bhumidhar of the land in dispute and also not in possession thereof. Theory of partition set up between the plaintiff and defendants no.2 to 10 was false and concocted. Plaintiff and defendants no. 2 to 10 were big Zamindars, having a lot of property including plot no.95, situate at village Kusahi, Tehsil Saidpur, district Ghazipur. They used to pay revenue of more than 250/-. However, they were not in possession of plot no. 95/1, which, in fact, was in possession of defendant no.1, as Shikmi, since before enactment of Act, 1951. Thereafter, he (defendant no.1), became Adhivasi and acquired Sirdari rights since 30.10.1954. If there is otherwise entry in the revenue record, the same must have been managed by plaintiff and defendants no.2 to 10, in collusion with Patwari, hence they cannot claim any benefit pursuant thereto. The suit is not maintainable. It is barred by limitation and principles of acquiescence and estoppel. He disputed, being a sharer (joint in possession), with the plaintiffs, in the suit land.
6. The Revenue Court formulated following issues:
"1. Whether the plaintiff is the bhumidhar of the plot in dispute ?
2. Whether defendant I set was Adhivasi and now Sirdar in possession of the plot in suit ?
3. Whether the suit is maintainable ?
4. Whether the Court has jurisdiction to try the case ?
5. Whether the suit is within time ?"
7. As per the provisions applicable at the relevant time for adjudication of issue no.1, reference was made to Civil Court which was registered as Revenue Reference No.1 of 1959 and decided by Munsif, Saidpur, District Ghazipur, vide order dated 21.05.1959. It answered the reference as under:
" Therefore I hold that the plaintiffs are bhumidhars of the plot in suit in case the defendant Ist set is not held Sirdar of the plot in suit and that the plaintiffs are not the bhumidhars of the plot in suit in case the defendant Ist set is held to be the Sirdar of the plot in suit"
8. The aforesaid order was passed in the context of issue no.2, which was to be decided by Revenue Court and the answer thereof would have material bearing on issue no.1.
9. Thereupon the Additional S.D.M. Saidpur, decided suit, vide judgment dated 27.02.1960. Issue no.2 was decided against defendant no.1, holding that he was not Adhivasi and, therefore, right of Sirdari did not accrue. In arriving the aforesaid findings, Trial Court (Revenue Court) held that reliance placed by defendant no.1 on the judgment of Tehsildar, carried no weight since the said order was already set aside by Additional Commissioner, Varanasi, vide judgment dated 06.01.1959.
10. Aggrieved thereto, defendant no.1 preferred Revenue Appeal No. 17 of 1960. The appeal was allowed by Civil Judge, Ghazipur, vide judgment and decree dated 26.07.1961, recording its conclusions on various issues, as under:
(I) The plaintiffs have failed to prove that they are the Bhumidhars of the land in
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