Haraballav Sarma And Others v. Mohodar Sharma .

1. This appeal is by the defendants and is directed against the judgment and decree passed by the Assistant District Judge, Barpeta in Title Appeal No. 132 of 1970.

2. The material facts of the case may be briefly stated as follows:

Defendant No. 6, Satyanath Sarma, took settlement of 3 kathas 16 Lechas of land covered by dag No. 66 of K.P Patta No. 276, more fully described in the schedule to the plaint, on payment of cash rent of Rupees 16/- per annum and was in possession of the land. During his illness during the last re-settlement operation the defendants dispossessed the plaintiff from the land. The plaintiff then served notice on the defendants demanding vacant possession of the land. Defendant No. 6 complied but defendants Nos. 1 to 5 did not. Hence he filed the present suit for recovery of possession.

3. Defendants Nos. 1 to 5 have filed a joint written statement while defendant No. 6 has filed a separate written statement, they have denied that defendant No. 6 was ever a tenant under the plaintiff and that he had vacated the land on demand by the plaintiff as alleged by him. They have also denied that defendants 1 to 5 trespassed on the suit land as alleged by the plaintiff. They have further pleaded that defendants 1 to 5 acquired title to the land by adverse possession. The trial court held that defendants Nos. 1 to 5 have acquired title by adverse possession on the suit land and dismissed the suit. On appeal the first appellate court rejected, as false, the plaintiff's case that defendant No. 6 was a tenant and that he vacated it about 4 or 6 years ago and that defendants 1 to 5 trespassed into the land during the last re-settlement operation. He has concurrently found that defendants 1 to 5 were in possession of the land for more than 12 years. He, however, found that the “plaintiff lost his father at the age of 1 ½ years and, therefore, he grew up in the house of his maternal uncle. During that period the defendants came to occupy the land. But their possession was entirely of a permissive nature.”

4. The finding of the first appellate Court, quoted above, is unsustainable in law inasmuch as it is inconsistent with his own rejection of the plaintiff's case of tenancy of the land under the plaintiff as false. The plaintiff pleaded that defendant No. 6 was a tenant under him. This case has been concurrently rejected by both the courts below. It was nobody's case that defendants 1 to 5 were tenants under the plaintiff or that they were in permissive possession of the land under him. The plaintiff's definite case was that defendants Nos. 1 to 5 were trespassers, while the case of defendants 1 to 5 was that they have been possessing the land as a part of their own patta land since the days of their fore-fathers. The case of permissive possession is a new case not pleaded by any of the parties, but made out by the lower appellate court. A court cannot, under the law, make out a new case not pleaded by the parties. The above finding, therefore, is to be quashed.

5. But for this erroneous finding the learned first appellate court, otherwise, upheld the judgment and decree of the trial court.

6. Shri J.N Sarma, learned counsel appearing for the respondents strenuously submits that even without this finding of the first appellate court, the judgment and decree of the first appellate court are sustainable in law. He submits that on the facts and circumstances of the case it must be held that defendants Nos. 1 to 5 have not acquired title by adverse possession. His submission is that these defendants have pleaded that they believed that the land in question was a part of the land covered by their own patta, while both the courts below have found that in reality the land is covered by the patta belonging to the plaintiff. To put it more precisely his submission is that when the defendants 1 to 5 under a mistaken belief possessed the land, their possession, however long it may be will not constitute adverse possession. His submission is that the defendants must have known that the land belonged to the plaintiff and set up adverse title against the plaintiff in order to get adverse possession.

7. The submission of learned counsel cannot be accepted as a correct proposition of law. In my opinion when a person openly and continuously possesses land under a claim of right adverse to the title of the true owner for the statutory period, his possession becomes adverse to the rightful owner. His belief that the land did not belong to the true owner is immaterial. His belief that it belonged to himself is necessary as that will be a claim of right adverse to the title of the true owner.

8. In AIR 1935 PC 53 their Lordships of the Privy Council have held:

“The principle of law is firmly established that a person, who bases his title on 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.”

9. Their Lordships of Privy Council in AIR 1919 FC 62 have held:

“Where the person claiming to be owner stands by while others continue to possess not by any derivative title but in practical contravention of his legal rights the possession of such other persons is adverse to the person claiming to be the owner. The law does not require that the claimant to ownership must in such circumstances be shown to have protested that his rights were being violated and that the possession went on adversely to his protests.”

10. This case applies in all force to the facts of the present case. In the instant case defendants 1 to 5 were possessing the land “in practical contravention of the legal rights” of the plaintiff. The concurrent findings of the learned courts below are that the possession of the defendants was for the statutory period and open and hostile to the true owner's. The learned lower appellate court held that possession of the defendants 1 to 5 “became adverse only when they were asked to vacate” by “notices Exs. 15 to 20 were issued to them.” The notices were issued by the plaintiff on 6-3-1966 immediately before the suit was filed. (The suit was filed on 22-6-1966). The effect of the finding of the learned lower appellate court is that even if the defendants had already acquired title by adverse possession, it can be disturbed by notice. This finding is untenable in law.

11. Under Section 27 of the Limitation Act of 1963, the plaintiff must bring the suit before his right to the property is extinguished.

12. Learned counsel for the respondents cites a decision of the Sind Judicial Commissioner's Court reported in (1935) 157 Ind Cas 283, where it was held:

“There cannot be adverse possession if the defendant himself did not know that he was occupying somebody else's land: he must have the intention of using the property adversely against the other claimant.”

13. In my respectful opinion in view of the decision of their Lordships of the Privy Council quoted above, the Sind decision does not appear to have laid down the correct law.

14. Shri Sarma has also cited a decision of the Jammu and Kashmir High Court reported in AIR 1972 J and K 75, where it was held:

“……the mere fact that the defendants used the land as a compound or as a passage or that they casually used it for preparing shingles over it cannot be styled as acts of user which the real owner may take notice of as acts of adverse claim.”

15. His Lordship has further observed:

“The kind of possession which is sufficient in one may not be sufficient in another. In the case of properties like vacant building site the presumption of possession following title can be reasonably applied as no act of possession can be exercised in relation to it except by constructing a building on it………”

16. This case is distinguishable on facts. It is not the plaintiff's case in the case in hand that defendants Nos. 1 to 5 were in casual or occasional possession of the land. The concurrent findings of the courts below are that defendants 1 to 5 are continuously in possession of the land for more than the statutory period putting the land to the use to which it could be put.

17. Learned counsel of both the parties cited a number of other decisions, but I have not referred to them as they are not relevant to the question involved.

18. In the result this appeal succeeds and is allowed.

19. The judgment and decree of the lower appellate court are set aside and those of the trial court are restored. I, however, make no order as to costs.

20. Appeal allowed.