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ALLAHABAD HIGH COURT
Virendra Kumar-II, J.
Krishna Chandra & Ors. —Appellants
Versus
Smt. Sarju Dei (died), Widow of Durga Prasad & Ors. —Respondents
Second Appeal No. 7 of 2008
Decided on 23.07.2020
For the Appellants :- D.C. Mukerjee, Mohammad Aslam Khan, Advocates.
For the Respondents:- S.K.Mehrotra, Anurag Srivastava, I.D. Shukla, Ishwar Dutt Shukla, Santosh Kumar Mehrotra, Advocates.
IMPORTANT POINTS
(1) In order to defeat title of plaintiff on the ground of adverse possession it is obligatory on part of respondent to specifically plead and prove as to since when their possession came adverse.
(2) A person pleading adverse possession has no equities in his favour since he is trying to defeat right of true owner.
Headnote:
Adverse Possession – In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on part of respondent to specifically plead and prove as to since when their possession came adverse – If it was permissive or obtained pursuant to some sort of arrangement, plea of adverse possession would fail – Where a plea of adverse possession is taken, pleadings’ are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession – Since mere long possession cannot satisfy requirement of adverse possession, person claiming it, must prove as to how and when adverse possession commenced and whether fact of adverse possession was known to real owner. plea of adverse possession is not always a legal plea – It is always based on facts which must be asserted, pleaded and proved – A person pleading adverse possession has no equities in his favour since he is trying to defeat right of true owner and he has to specifically plead with sufficient clarity when his possession became adverse and nature of such possessions – In present case, findings recorded by first appellate court are based on analysis and appreciation of evidence of both the parties, oral as well as documentary – First appellate court has found possession of defendants/ appellants based on implied permission/ license, therefore, permissive entry/ possession cannot be termed as adverse possession – Defendants cannot claim that they have perfected their right on the basis of alleged adverse possession – First appellate court has rightly decreed suit of plaintiffs by recording finding based on oral as well as documentary evidence adduced by plaintiffs in correct perspectives – Appeal dismissed with costs. [Limitation Act, 1963 – Article 65] (Paras 59, 119, 144 and 145)
Result: Appeal allowed.
JUDGMENT
Virendra Kumar-II, J.—Heard Shri Mohammad Arif Khan, learned Senior Counsel, assisted by Shri Mohammad Aslam Khan and Shri Mohiuddin Khan, learned counsel for the appellants and Sri I.D.Shukla, learned counsel for the respondents.
2. The present Second Appeal No. 7 of 2008: Krishna Chandra and others Vs. Smt. Sarju Devi (since dead) and others, has been preferred assailing impugned judgment and decree dated 26.09.2007 delivered by the Court of Civil Judge (Senior Division), Court No. 15, Sultanpur in Civil Appeal No. 45 of 1970.
3. The first appellate court has set aside judgment and decree dated 28.02.1970 delivered by the Court of Munsif (South), Sultanpur in Regular Suit No. 209 of 1963, by which suit of respondents/ plaintiffs was dismissed. During pendency of original suit before the trial court defendant No.1-Dargahi had expired and his legal representatives were substituted. The present matter was decided by learned trial Court Munsif South Sultanpur vide judgment dated 28.02.1970. The appellants assailed impugned judgment dated 28.02.1970 in Civil Appeal No. 45 of 1970.
4. Learned District Judge, Sultanpur dismissed aforesaid Appeal No. 45 of 1970 vide impugned judgment dated 10.11.1970. The plaintiffs/respondents preferred Second Appeal No. 2585 of 1970: Durga Prasad and another Vs. Dargahi and others, before this Court, which was decided on 01.08.1980 by coordinate Bench and matter was remanded to the first appellant court. Therefore, Civil Appeal No. 45 of 1970 was again decided by first appellate court of Additional Civil Judge-II, Sultanpur vide impugned judgment dated 09.09.1986. The first appellate court again dismissed the suit of plaintiffs/respondents. Hence, Durga Prasad (since dead) through his legal representatives Sarju Devi and Bhaiya Ram preferred Second Appeal No. 677 of 1986 : Durga Prasad and another Vs. Smt. Chameli Devi and others. This court decided Second Appeal No. 677 of 1986 on 16.12.2004 and again remanded the matter to the first appellate court.
5. The appellants of present second appeal preferred Special Appeal to Leave (Civil) assailing judgment dated 16.12.2004 passed by this court in Second Appeal No. 677 of 1986. Hon’ble Apex Court had dismissed it on 26.04.2005.
6. The first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur again decided Civil Appeal No. 45 of 1970 and delivered impugned judgment and order dated 26.09.2007. Learned first appellate court has set aside impugned judgment dated 28.02.1970 delivered by the trial court of Munsif South, Sultanpur and decreed the suit of plaintiffs. Learned first appellate court has directed to the appellants/defendants to vacate the disputed house within one month from the date of judgment.
7. The appellants/defendants have preferred present second appeal assailing impugned judgment and order dated 26.09.2007 delivered by first appellate court.
8. It is pertinent to mention here that during proceedings of Second Appeal No. 2585 of 1970 and Second Appeal No. 677 of 1986 and proceedings of Appeal No. 45 of 1970, original plaintiffs and defendants have expired and their legal representatives have been substituted.
9. In Second Appeal No. 7 of 2008, originally Durga Prasad and Bhaiya Ram were the plaintiffs and Dargahi, Phool Chand, and Prem Chand, Deep Chand were defendants, out of them Durga Prasad and Bhaiya Ram-plaintiffs and Dargahi, Phool Chand and Prem Chand defendants have expired.
10. The present appeal was admitted on 25.05.2009 and coordinate Bench has passed order dated 25.05.2009 and formulated substantial question of law after hearing learned counsel for the appellants. The order dated 25.05.2009 is reproduced hereunder:
“Heard Sri D.C. Mukherjee, learned counsel for the appellants and Sri S.K. Mehrotra, Advocate who has put in appearance on behalf of the caveator-respondents.
Learned counsel for the appell
