1992 Supreme(MP) 229

S.K. Dubey, J.
Gyan Singh v. Saran Singh
S.A. No. 372 of 1976 (G); Decided on 8.4.1992.

Headnote:(1) Limitation Act, 1963 -- S. 27 and Art. 65 -- agricultural land continuously cultivated for 15 years as owner -- act of cultivation cannot be a secret act -title perfected by adverse possession.

        (2) Limitation Act, 1963 -- S. 27 -- ordinary classical requirement of adverse possession -- it should be nec vi nec clam nec precario (adequate in continuity, adequate in publicity and adequate to show the adverse nature).

        (3) Limitation Act, 1963 -- S. 27 -- claim of adverse possession - - not necessarily to be brought to the notice of real owner if the act of possession is not secret.

       

        (4) Civil P.C., 1908 -- O. 14, R. 2 and O. 6, R. 2 -- pleadings not specific but issue framed -- there can be no prejudice.

        (5) Civil P.C., 1908 - S. 100 -- different conclusion possible -- it is no ground to interfere in second appeal.

       

       ¼1½ ifjlhek vf/kfu;e] 1963& /kkjk 27 rFkk vuq- 65&d`f"k Hkwfe ij 15 o"kZ rd Lokeh ds :i esa fujarj [ksrh dh xbZ &[ksrh dk dk;Z xqIr dk;Z ugha gks ldrk & gd izfrdwy dCts }kjk ifjiw.kZ gqvkA

       

        ¼2½ ifjlhek vf/kfu;e] 1963 & /kkjk 27&izfrdwy dCts dh lkekU; laLFkkfir vis{kk&mldk lkrR; ;Fks"V gksuk pkfg,] fo[;kiu ;Fks"V gksuk pkfg, vkSj ;Fks"V :i ls mldk fojks/kh Lo:i nf‘kZr gksuk pkfg,A

       

        ¼3½ ifjlhek vf/kfu;e] 1963 & /kkjk 27&izfrdwy dCts dk nkok&okLrfod Lokeh dh tkudkjh esa ykuk vko‘;d ugha gS ;fn dCts dk dk;Z xqIr ugha gSA

       

        ¼4½ flfoy izfdz;k lafgrk] 1908 & vk-14] fu-2 rFkk vk- 6] fu- 2&vfHkopu fofufnZ"V ugha fdarq fook|d fojfpr & dksbZ izfrwy izHkko ugha gks ldrkA

       

        ¼5½ flfoy izfdz;k lafgrk] 1908 & /kkjk 100&fHkUu fu"d"kZ laHko&;g f}rh; vihy esa gLr{ksi djus ds fy, vk/kkj ugha gSA

       The trial Court framed issues. Issue No. 1 related to acquiring of title by adverse possession, which reads as under:

       1- D;k oknxzLr Hkwfe ij oknhx.k dk 15 o"kZ ls adverse possession gSA

       2- ;fn gka] rks D;k oknhx.k dks oknxzLr Hkwfe ij HkwfeLokeh LoRo lEiUu gks pqds gSa\

        At the trial, the defendant Mst. Sheorani did not appear in the witness-box. The trial Court, after appreciating the evidence adduced by the parties and the revenue records produced, decreed the suit holding that the plaintiffs have acquired the title by way of adverse possession, as the suit land was in their actual legal control and they exercised their right to possess the land as owner to the exclusion of others. In appeal, on reappraisel of evidence, the lower appellate Court, after discussing the evidence in paras 13 to 21 affirmed the findings of the trial Court.

       

        Held: Shri K.K. Lahoti, learned counsel for the appellant/defendant-transferee, contended that the findings recorded by the two Courts are perverse as in the absence of specific pleadings and legal evidence to the effect that the plaintiffs acquired the possession hostile to the true owner, the title of real owner cannot be said to he extinguished, in view of section 27 and Article 65 of the Limitation Act. Learned counsel pressed into service a decision of the Apex Court in S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), wherein it has been ruled that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. True, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. See Secretary of State v. Debendra Lal Khan (AIR 1934 PC 23). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. See Radhamoni Dehi v. Collector of Khulna, 27 Ind App 136 at p. 140 (PC). Therefore, a party who seeks a declaration of acquiring title by adverse possession has to plead and prove that the possession was not only long and uninterrupted, but was adverse to the true owner, so that the starting point of limitation, against the party affected can be found.

       

        As rightly pointed out by Shri R.D. Jain, learned counsel for the respondents/plaintiffs, the averments made in paras 1 and 2 of the plaint are complete in themselves which clearly demonstrate that the plaintiffs not only remained in continuous uninterrupted possession of the suit land for a period of 12 years, but for full period of fifteen years which was in publicity, to the villagers and to all concerned. The defendant Mst. Sheorani came with a different story that she was continuously in possession and was cultivating the land, while, in fact, shifted to village Salaiyya. Moreover, the defendant-transferee during evidence, made out a case at variance to the pleadings that about two years prior to sale, the land was being cultivated by him in Adhhatal" on behalf of the real owner. Above all, issue No; 1 was framed, therefore, in such circumstances, the parties were conscious of the issue and were in knowledge and led the evidence to that effect. Therefore, even if for arguments sake, it is assumed that specific pleading was lacking, that will amount to a mere irregularity, resulting in no prejudice to the defendants. Reliance was placed on a decision of the Apex Court in Nagubai Ammal & others. v. Shama Rao & others (AIR 1956 SC 593).

       

        In my opinion, the contention of Shri Jain has got a force. Besides, from the evidence adduced by the parties, it is clear that it is not a case of either party that the plaintiff Saran Singh was in control and in possession of the land for and on behalf of Mst. Sheorani, in any capacity, but on the other hand, the plaintiffs asserted their possession, that is, actual physical control over the land and exercise of the right to possess the property as owner to the exclusion of others for over 12 years which perfected the title by adverse possession. As there was no plea of permissive possession raised by the defendants on evidence, the Courts below rightly recorded the finding that the plaintiffs were cultivating the land for fifteen years in their own rights, exclusively and in defiance of anybodys title including Mst. Sheorani who shifted to village Salaiyya, her title thus stood extinguished. See Baboolal v. Smt. Rajabai (1983 MPWN SN 438) and Rekhnarayan v. Mudi & others (1991 RN 218).

        In case of Kshitish Chandra Bose v. Commissioner of Ranchi (AIR 1981 SC 707), the Apex Court has observed in para 8 that all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the knowledge of the owner.

       

        In case of Ramu v. Government of M.P. (1988 RN 152), this Court has taken a view that the law does not require that the person who claims adverse possession should bring it to the notice bf real owner. When the adverse possession exercised by overt acts such as open cultivation, it cannot be said to be an act by .concealment and it cannot be said that the defendant had no knowledge or notice of it, as open possession and cultivation of land cannot be a secret act.

        It is clear that the defendants asserted their open and adverse title to the knowledge of Mst. Sheorani, but no effort was made by her to evict the plaintiffs, who, according to her were trespassers the even did not enter in the witness-box to sustain her plea, that she remained continuously in possession and cultivated the land, this goes against Mst. Sheorani.

        Learned counsel for the appellants has also placed reliance on few decisions of this Court, reported in Richhu v. Manga & others (1989 RN 152), Ramlal v. State of M.P. & others, (1990 RN 108), Purushottam Lal v. Jiwan Lal (1991 (I) MPWN Note 88), Indra Singh & others v. Swam Kaur & others (1988 RN 17) and Laluram v. Kantiprasad (1978 (II) MPWN 202), which in my opinion, are quite distinguishable arid do not support the case of the appellants in the facts of the case.

        Even if for arguments sake a different conclusion could be arrived at, that cannot be a ground for interfering in second appeal. See a decision of the Apex Court in Dudh Nath Pandey v; Suresh Chandra Bhattasali (AIR 1986 SC 1509) and a recent decision of this court in Ramjan Khan & others v. Baba Raghunath Das & others (AIR 1990 MP 22). As the findings recorded by the two Courts are concurrent findings of pure facts, both on question of title and that of adverse possession, this Court in second appeal has no jurisdiction to upset the findings even if the findings are erroneous. See Kshitish Chandra Boses case (supra) and Mst. Kharbuja v. Jang Bahadur Rai & others (AIR 1963 SC 1203). AIR 1934 PC 23, 27 I.A.136, AIR 1956 SC 593, 1983 MPWN 438, AIR.1981 SC 707, 1988 RN 152, AIR 1986 SC 1509, AIR 1990 MP 22 and AIR 1963 SC 1203 relied on. AIR 1964 SC 1254, 1989 RN 152, 1990 RN 108, 1991 (1) MPWN 88, 1988 RN 17 and 1978 (II) MPWN 202 distinguished. Appeal dismissed.