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BOMBAY HIGH COURT
A.P. Bhangale, J.
Ganpat Janu Wagh —Appellant
versus
Vanmala & Ors. —Respondents
Second Appeal No. 51 of 1999
Decided on 8.1.2014
Counsel for the Parties:
For the Appellant:Mr.A.V. Bhide, Advocate
For the Respondent: None
IMPORTANT POINT
1. While taking plea of adverse possession, the party cannot be permitted to raise inconsistent plea.
2. Non user of property by owner by whatsoever long time will not create any right of adverse possession in favour of the defendant.
Headnote:Limitation Act 163- Adverse possession- While taking plea of adverse possession, mutually inconsistent pleas cannot be raised- Plea as to adverse possession must be specifically raised and proved- Before taking such plea, the plaintiff, certainly denounces his title over the property- He cannot claim both i.e. claiming title as well as adverse possession- Moreover non user of property by the owner will not give rise to benefit of adverse possession to the other party- The other party has to prove his hostile title to the denial of title of true owner for more than 12 years- Suit for possession rightly decreed. (Para 8 & 9)
Facts of the Case
Where one Vitthal was owner of the suit property and after his death, he was inherited by plaintiff, the defendant claimed that he was owner of the suit property by way of adverse possession and alternatively also claimed to be owner of the suit land having sold the same to one Vasant Sakharam. The trial Court rejected the plea of defendant directing it to deliver possession of the suit property to the plaintiff. The appeal was dismissed by the First Appellate Court.
Findings of the Court
Considering the concept of adverse possession, it is but necessary to be borne in mind that the claimant must establish occupation of the suit property for a period of 12 years or more without interruption of possession, to the exclusion of all persons openly and hostile to the true owner adequate in continuity and in publicity. It is settled position of law that plea of adverse possession must be expressly raised and established. Defendant has to necessarily admit that some one else is owner of the property and further more, according to law, such claimant must clearly plead and establish all the facts which are required to prove adverse possession. One cannot be permitted to raise mutually inconsistent pleas at different stages of the suit to base his claim as sharer in ancestral property and other plea based on adverse possession. Plea as to adverse possession and claim thereof cannot commence unless claimant denounces his title claimed as sharer in joint family property. Defendant No. 1 never denounced his title as son of Janu or as an brother of lat Vitthal Janu Wagh nor he had admitted the ownership title of the plaintiffs to the suit land so as to be permitted to raise a plea of adverse possession. A person, who is owner of the property under registered sale deed, is deemed to be lawfully in possession so long as there is no intrusion. The trial Court rightly decreed suit of the plaintiff.
Result: Appeal dismissed.
A.P.Bhangale, J.—This appeal challenges the judgment and order dated 8th September 1998 delivered by the Additional District Judge, Khamgaon in Regular Civil Appeal No.47 of 1990 confirming the judgment and order dated 30th July 1990 passed by the Civil Judge, JD, Jalgaon (Jamod), District Buldana in Regular Civil Suit No.50 of 1981 whereby suit of the plaintiffs (present respondents No.1 and 2) was decreed. In that, original defendants No.1 and 2 were directed to deliver possession of suit property i.e. Gat No.5/6, area 1.21 HR situated at village Khamkhed, residential house situated in Ward No.10, Jalgaon (Jamod) described in plaint paragraph 3 to the plaintiff. It was the grievance of the plaintiffs Vanmala and Sunanda that 1st defendant i.e. Ganpat Janu without any right, title or interest, sold gat No.5/6 situated at Khamkhed, Tahsil Jalgaon Jamod, District Buldana to Vasant Sakharam (original defendant No.2) vide sale deed dated 23.2.1981 for a sum of Rs.6,500. Contention of the plaintiffs was that they had immediately by notice dated 27.2.1981 (exhibit 31) had called upon defendants to restore possession of the suit land to the plaintiffs, but their notice remained unheeded. Thus, they had to file suit for possession on the ground that the suit land referred to above was exclusively owned and possessed by their grandfather pursuant to sale deed executed in favour of Janabai wife of Vitthal Wagh for asum of Rs.750 (exhibit 32). Thus, according to plaintiffs, owner of the suit land was Janabai (their grandmother) under the registered sale deed and land was in possession of their grandfather Vitthal Janu Wagh. Mother of the plaintiffs by name Narmada d/o Vitthal Wagh had predeceased Vitthal Janu Wagh in the year 1971 while Vitthal died in the year 1978 as owner of suit land which was inherited from him by plaiiitdls as only legal heirs of deceased Vitthal. Contention on behalf of I st defendant Ganpat Janu Wagh was that suit land was ancestral and not self-acquired by Vitthal or Janabai. Defendant No.1 claimed that as exclusive owner of the suit land, he sold it to Vasant Sakharam under sale deed dated 23.2.1981. However, this document referred to by defendant No.1 is not supported in evidence. In the alternative, it was claimed by defendant No.1 that plaintiffs had only 1I4th share if they proved their title. In second alternative, defendant No.1 claimed that he was owner of suit property by adverse possession and was entitled to sell it to Vasant Sakharam as owner.
2. The pleadings were examined by the trial Court and the trial Court found in favour of the plaintiffs Vanmala and Sundanda that they are entitled to possession of the suit land as legal heirs of Vitthal who was exclusive owner of the suit land. Thus, the trial Court disbelieved the case of defendent No.1 that the suit land was ancestral property or that he was exclusively entitled to dispose of the same. The trial Court found that there was original deed of the suit land at exhibit 32 which indicated that suit land was purchased by Janabai Vitthal Wagh for a sum of Rs.750 on 2nd February 1955. The documentary evidence produced by the plaintiffs also consisted mutation extract (exhibit 30) in the name of Janabai dated 20th January 1956 to prove that she was absolute owner of the suit land. The legal position that she became absolute owner of the suit land in view of Section 14(1) of the Hindu Succession Act was also considered by the learned trial Judge. Thus, after Janabai’s death, original and exclusive owner of the suit land, the suit land was mutated in the name of Vitthal Janu Wagh as legal heir of Janabai. Thus, it was Vitthal Janu Wagh who inherited from Janabai in view of Section 15(a) of the Hindu Succession Act. He remained in possession of suit land till he died in 1978 and thus, plaintiffs as legal heirs succeeded to the property (suit land) left by Vitthal. Considering the fact that Narmada daughter of Vitthal had predeceased Vithal in th
