(1) The unsuccessful defendants are the appellants. The first respondent laid the suit for possession. On the ground that the appellants trespassed into the land and in may 1971 they were making unauthorised constructions. It is bis case that 1/12th share of hyder ah khan and 1/8th share of sarfary ali khan situatedin subhan khan devidi, shah ali banda was notified to be evacuee property by the cusotodian. The custodian put it to auction on 25th december, 1962. Respondents vendor one uberroi purchased the said property and under exhibit a - 4. Sale certificate dated 12th june, 1965 was issued. Subsequently he obtained a rectification deed exhibit a - 4 on 8th may, 1964, specifying the boundaries and extents. The first respondent purchased the said property including the one in dispute from uberoi under exhibit a - 1 dated 23rd october, 1963, and even since he has been in possession and enjoyment of the same. The appellants trespassed into the land and he got issued a notice under exhibit a - 10 dated 9th june 1971, for which reply dated 21st june, 1971 was got issued by the appellants, denying the first respondent's title to and possession of and also asserting their possession and purchase of the propery from their vendors under exhibits b - 1 to b - 3, and as a result the suit was filed.
(2) It is the case of the appellants than an extent of 406 sq. Yards belonged to md. Qutub ali khan and two others and this property is outside the devidi. They were in occupation for more than 15 years. They purchased the said property from their vendors under exhibits b - 1 to b - 3 and got the sale deeds registered on 9th may, 1962. They applied to the municipal corporation for permission to construct a pucca house in the place of the existing huts, on 21st august, 1962 under exhibit b - 4 and the municipality accorded permission in 1964 under exhibit b - 6, and thereafter they constructed a house and they have been in possession of the same. After framing appropriate issues and adduction of evidence, the trial court dismissed the suit in the first instance on 31st march, 1977, but on appeal the appellate court held that the first respondent had title to the plaint schedule property, but since the question of adverse possession was not gone into, it remitted to the trial court by its judgment dated 13th november, 1978. Thereafter, by judgment dated 30th june, 1979, the trial court held that the appellants have not established their adverse possession and accordingly decreed the suit for ejectment. When the appellants carried the matter on appeal, the appellate court confirmed the decree. Thus the second appeal
(3) In this appeal, sri poornaiah, the learned counsel for the appellants has contended that the appellate court has not considered the relevant admissions made by p. W. 1 and p. W. 2 in their oral evidence touching the question of adverse possession. The plaintiff as p. W. 1 has admitted that as on the date of the auction the appellants are in possession. P. W. 2 admitted that right from 1949 the appellants are in possession. Taking there two admissions into consideration, the plea of the appellants that they acquired title by adverse possession has been established. But the appellate court did not consider this evidence. He also sough to contend that on question of title though before remand the appellate court in the first instance held that respondent had title that question is open to canvass in this court. The question of finality is for the purpose of the first appellate court, and the second appellate court when it is considering the matter finally, it is open to this court to go into the question of title as well. Though this contention does carry force, i directed the counsel to address on the question of adverse possession, assuring that in case i am not inclined to accept his contention, then i would permit him to argue on the question of title as well. He contended thereby that the approach of the appellate court in not considering the question of adverse possession on the basis of the material oral evidence, namely the admissions made by the adversary, constitutes substantial question of law. Their admission establishes the plea of the appellants that they had perfected their title by adverse possession.
(4) Sri, s. L. Chennakesava rao, the learned counsel for the respondent, while conceding that the appellate court has not considered the oral evidence, contends that they were not admissions. It is only a piece of evidence which has got to be considered in the context of the other evidence on record. If the statement of p. W. 1 is to be considered as an admission it goes no further than their possession in the year 1962 but the suit was filed in 1971, within 12 years from that date. When it is pointed out that when there is an admission that on the date of the auction, the appellants were found to be in possession then an inferece of continuity of possession backwards cauld also be drawn sri chennakesava rao the learned counsel, has stated that in such an event the effect of article 65 of the limitation act would be whittled down. Preceding the amendment act, 1963, the burden of proof of adverse possession was on the plaintiff. But article 65 posts that the person setting up the plea of advene possession has to establish his plea. If the presumption is drawn it would amount to placing the burden on the plaintiff to establish that the defendants were not in possession within 12 years. Sinoe the appellate court omitted to consider oral evidence, he stated that two courses areopen to this court: (1) to call for a finding from the appellate court ; and (2) this court may by itself to consider the entire evidence on record, including the evidence relied on by the counsel for the appellant. He pointed out that the substantial question of law that was framed by this court is with regard to the right of the appellants to tag on the possession of their predecessor in title. But, that is not the case of the appellants in the courts below or of their evidence. Therefore, the question as framed is not correct. Sri poornaiah, the learned counselfor theappellants, in reply contended that the evidence on record is sufficient to conclude that the appellants have established their plea of adverse possession and even if there is any doubt, the presumption can be drawn backwards till 1949 as admitted by p. W. 2 and if that evidence is taken into account placing reliance on the presumption noticed in illustration (d) to section 114 of the evidence act, it is conclusive that the appellants have established their plea of adverse possession. In this situation, to avoid protraction of the lis it is needless to remand the matter to the appellate court calling for a fresh finding and this court can decide that point. Under these circumstances, he requested this court to dispose of the matter on merits on this plea of adverse possession,
(5) It is true that the question as framed does not arise for consideration. But, upon the respective contention, the first question to be considered is whether the appellants have perfected their title by adverse possession. Normally, this will be a question cf fact when it is considered in the :ontext of appreciation of evidence. But since the appellate court admittedly did not consider this question with reference to the oral evidence on record, the necessary question with has to be framed for decision is: whether the appellate court, being final court of fact, is justified in law in not considering the oral evidence in juxtaposition with the documentary evidence in recording the finding that the appellants had not perfected their title by adverse possession?. I framed this question in exercise of the power under proviso to sub - section (5) of section 100 of the code of civil procedure.
(6) The facts are not in dispute. The property originally belonged to hyder khan and sarfaraz ali khan in 1/12th and 1/8th shares respectively, situated in subhan khan devdi in shan - ali bunda. It was notified as an evacuee property and the custodian of the evacuee property auctioned the property on 25th december, 1962. Mr. Obroi is the purchaser and the respondent purchased from him. It is the case of the appellants that it does not form part of the respondent's land and it is situated adjacent to it and belonged to their prcdecessor - in - title. Be that as it may the question now remains to be seen is admittedly the appellants are in possession of this property. The respondent is seeking to recover possession after ejecting them. Therefore, the question is whether the respondent has title to the plaint schedule property. That finding was recorded by the appellate court and i assume that the respondent has a title to the property. As am satisfied that this matter can be decided on the question of adverse possession i did not permit sri c. Poornaiah, the learned counsel to argue on the question of title. Therefore, under these circumstances let me proceed to the question whether the appellants have perfected their title by adverse possession.
(7) In this suit notice, exhibit a - 10, issued on 9th june, 1971, the respondent stated in paragraph 2 thus: "you have committed illegal trespass upon the vacant land belonging to my client and situated on the northern side of the aforesaid property and forming part and parcel of the same and occupied illegally an area or 406 sq. Yards and, further that since the 5th may 1971, you have also started raising thereon illegally a compound wall and some structures of a permanent nature despite my client's protest. " the same has been repeated in paragraph 2 of the plaint verbatim. In the written statement after setting out the title, purchased under exhibit b - 1. Exhibit b - 2 and exhibit b - 3, from their vendors nawab mohd. Qutub ali khan, nawab mohd. Fiaz ali khan and nawab mohd. Subban khan on 9th may, 1962 they have also adumbrated thus. "the real fact is that defendent along with her sister k. Jayalakshimi is in possession of the land since more than 15 years. Initially, we the two sisters had directed our huts on the said land the later on, the said land was divided into four plots. The defendant (first defendant filed the written statement and the second defendant fiied a separate fied the written statement but with the same allegations) purchased plot numbers 1 and 2 as per registered sale deed and the plan annexed to it dated 9th may, 1962 from their vendors. " they also pleaded that they filed a plan for sanction before the municipal corporation and that the corporation accorded sanction for the construction. In the evidence, p. W. 1 has stated at p. 57 of the typed material papers thus : "i do not know who was residing in the residential portion prior to the sale by the competent officer. Similarly, i do not know as to who were residing oa on the suit property during the time of the heirs of subhan khan. At the time of auction by the custodian defendan ts i and 2 were on the suit property. When my vendor sold the property to me under exhibit a - 1, the defendants were occupying the land. My vendors issued notice to them in respect of the suit land. " (italics supplied.) the respondent examined p. W. 2 one cap. B. N; e raj. He stated at p. 57 of the material papers thus : at the time of oberoi's purchase, there were two huts one of anjali devi, defendant no 1, and another of jayalakghmi, defendant no 2 oa the northern side of subhan khan devdi. On the southern side, there was one hut of durgamma at p. 71 hs stated thus : "since 1949 i have been seeing the huts of defendant 1, her sister jayalakshmi, and durgamma. It is true to say that in the place of huts, they raised country titled houses. " this part of p, w. 2's evidence is an admission. It is not in dispute that p. W. 2 is a disinterested witness called by the respondent - plaintiff himself as his witness. When he made an unequivocal statement in the cross - examination, favourable to the appellants, unless it is explained in re - examination, it is binding on the respondent as an admission. No such attempt has been made. He was not declared hostile. In these circumstances, the evidence of p. W. 2 shall be an unequivocal admission made by the party. As already noted, the respondent - plaintiff as p. W. 1 admitted that as on the date of the auction, /. E. , 25th december 1962, the appellants were in possession of the disputed land. They purchased on 9th may, 1962 i. E. , prior to sale in favour of oberoi, the predecessor - in - title of the respondent. In these circumstances, the question that arises for consideration is whether the appellants have established their plea of adverse possession.
(8) In ambika prasad v. Ram ekbal rai, 1966 1 scr 758 : air 1966 sc 605 at 612, their lordships of the supreme court speaking through bachawat, j. , have held as follows :
"now, if a thing or state of things is shown to exist, an inference of its continuity within a reosanably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illustrasion (d) to section 114 of the indian evidence act, 1872 in appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in india. See anangamanjari chowdharani v. Tripura soondari chawdharni, 14 i. A. 108 at 110 (p. C.) : (1886) i. L r. 14. Cal, 740 and edgland see bristow v. Cormican, (
1878) 3 a. C. 641 ax 669, 670, doe v. Young, (1845) 8 q b. 63 : 115 r. 798. The broad observation in manmatha nath v. Q c. Roy, (
1934) 38 cal. W. N. 763 at p. 770 : a. I, r. 1934 cal 707 at 708 and hamendra nath v. Jananendra prasanna, (1936) 40 cal. W. N. 15at p, 117 : a, i. R, 1935 cal. 702 at p. 704, that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature ot the thing and the surrounding circumstances."
(9) Sri s. L chenna kesava rao, the learned counsel or the respondent, contended that if this presumption is drawn it would amount to shifting the burden of possession of the defendant to the plaintiff contrary to article 65 of the limitation act. I am unable to agree with the learned counsel. The drawing up of a presumption under illustration (d) to section 114 of the evidence act would arise when there is acceptable evidence of possession up to a particular point of time and there is paucity of evidence in that regard anterior to the day up to which the possession was established. To such an area, the doctrine of "presumption backwards" would operate and it is for the court to draw such a presumption on a given facts and circumstances of a case where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation. The case must be dealt with on reasonable probabilities and legal inference from the proved or admitted facts alone should be drawn; vide union of india v. Moksk builders, 1977 1 scc 60 : 1977 1 scr 967 : air 1977 sc 409 in k. Jeevaratnam and others v. S rattaiah, s. A. No, 599 of 1980, decided on 6th september, 1984, i have considered that an inference must be carefully distinguised from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which are sought to be established. In soms cases, other objective facts can be inferred with such practical as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. If there arc no positive proved fact from which the inference can be made the method of inference fizzles ou leaving in the field only speculation or conjecture. I have already extracted the admissions made by the respondent as p. W. 1 and his witness p. W. 2. The court his power to draw an appropriate inference from the facts referred to earlier. From the admission that the appellants were in possession from 1949 the only conclusive inference that could be drawn is that their possession is continuous. The fact that the respondeat in seeking for possession would establish that the possession is uninterrupted. There is no evidence that either they came into possession with the permission of the true owner or th it they acknowledged at any time from 1949 of the title of the true owner. The necessary inference to be deduced from this perspective is that they continued to remain in possession openly in assertion of their own adverse right to the knowledge of the true owner and the true owner acquiesced to or never asserted his title nor made any attempt to disrupt possession of the appellants from the year 1949 till the date of the suit. When considered from this perspective, the question of shifting the burden on to the plaintiff does not arise. Therefore, the contention of the respondent that the burden shifts to the plaintiff to establish, contrary to the mandate of article 65, lacks force. Article 65 positivelly puts the burden on the person setting up the plea of adverse possession when the suit is for possession based on title. That burden would never shift on to the plaintiff. It is always for the defendent who sets up the plea of adverse possession to establish that he perfected his title by advene possession by remaining continuously and uninterrupted in possession for a period of 2 years without let or hindrance by the real owner. At this juncture it is necessary to note that both in the plaint as well as in exhibit a - 10, suit notice, the respondent did not state when actually the appellants have occupied the land he kept that aspect delightfully vague. He, however, stated in his evidence that seven months prior to the date of the suit, the appellants have occupied the land. This averment is now belied by his unequivocal admission made in the cross - examination, namely that as on the date of the auction, the appellants were in possession. Under these circumstances, the question that arises for consideration is whether the presumption of the continuity of possession backwards could be drawn on the facts and the circumstances in this case. The evidence of p. W. 2 is unequivocal in which he made categorical admission that appellants were in possession in the year 1949. If that admission is taken into consideration vis - a - vis the plea of the appellants in the written statements that they were in possession since 15 years, it goes without doubt that the appellants were continuously and uninterruptedly in possession for more than 12 years preceding the date of the suit. A presumption of possession backwards could be drawn.
(10) In reddi ramaiah v. S. Lakxmana, (1984) 2 a p. L. J. 424, this court had an occasion to deal with the question of exercising its powers under section 103, civil procedure code i went into the question of the effect of non - consideration by the lower court of the admissions made by the parties. In paragraph 25, i have considered the decisions of their lordships of the supreme court and held thus:
"there is material evidence on record and the appellate court abdicated its power by non - consideration thereof thereby necessitated this court to take recourse to secfion 103, civil procedure code and considered the evidence to do justice."
then the evidence was considered and the decree of the appellate court was reversed confirming the trial court decree since the trial court has given a finding in favour of the appellants therein. Following that ratio, in view of the above discussion, i hold that the appellants have perfected their title by adverse possession. As a result, respondent shall loose his suit. Accordingly, the appeal is allowed. The decrees and judgments of both the courts below are set aside and the suit is dismissed, but, in the circumstances of ths case, the parties are directed to bear their own costs through out, including in this appeal. Appeal allowed.