SYED MOHD TAHIR Vs. RAM PRATAP

JUDGEMENT

(1.) BINOD Kumar Roy, J. The petitioners pray to quash different orders passed by the Consolidation. Authorities.

(2.) IN view of the nature of the order which I propose to pass I do not consider expedient to state facts in detail. It appears that there was/is a serious dispute in regard to right, title and interest between the petitioner and respondent No. 1 in regard to 1 Bigha 6 Biswa and 5 Biswansi of land of "plot No. 593 of village Mardanpur; Barzi, pargana Kara, tahsil Sirathu, district Allahabad. The question which fall for consideration by the Consolidation Officer, Saini was as to whether Ram Pratap (Respondent No. , 1 herein) was Sirdar of the disputed land who claimed his rights on the basis of adverse possession, vide the order as contained in Annexure-7 the Consolidation Officer allowed the claim of respondent No. 1 which was affirmed on appeal and revision, vide the orders as contained in Annexure-9 and 11. The Submissions:

(3.) THE law as to what constitutes adverse possession is well settled. In Dip jffarain Rai v. Pundeo Rat, AIR 1947 Patna 99 a Division Bench of the Patna High Court held as follows: " (12) THE classical requirements of adverse possession as propounded by the Privy Council from time to time, are that the possession must be nee vi nee clam nee precario, that is to say, the possession, required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercsies due vigilance, to be aware of what is happening. In Secretary of State v. Debendra Lai Khan, 61 I. A. 78 their lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. Dr. D. N. Miner appearing for the respondents, contends that in view of the aforesaid principle of law as enunciated by their Lordships of the Privy Council, which fulfilled the above conditions would be held to be adverse since its very commencement. (13) This argument, however, overlooks the fact that the practical application of the aforesaid principles is a matter of some difficulty in reference to varying features, of particular cases. In Birishchandra Nandy v. Baijnath Jugal Kishore, 62 LA 40 their Lordships, with reference to the particular facts of that case, expressed themselvesv to say that, in their Lordships opinion, the defendants had failed to show that the plaintiff's predecessors by exercising due diligence ought to have been aware of what was happening apart from the question that the defendants possession, was adequate, in continuity and extent, and that the possession of the defendants failure of the plaintiff's predecessors to notice these things, even if they were sufficient, when seen, to put them on their guard involves, in the opinion of their Lordships, no look of reasonable vigilance on their part, and the defendants' case must fail on this point. In this case their Lordships also found that there was no attempt at concealment. (14) This dictum of their Lordships makes it very clear that mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. (15) It will appear from the following review of cases that the requirement to- make - possession adverse vary according to the peculiar facts of each case is depend upon the particular background of facts and relationship of the parties and other like circumstances in which the adverse possession commences. In Ejaz Ali Qidwai v. Court of Wards, Balrampur Estate, AIR 1935 PC 53 their Lordships of the Privy Council have said that the principle of law firmly established is 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, and thaj possession that is at its inception permissive must be shown to have become adverse by some subsequent change in its character, (16) In Abu Naif v. Secy, of State, 51 IA 257 their Lordships held that a licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse %to that of the licensor, to his knowledge and with his acquisence. Knowledge or notice of adverse act is necessary when permissible possession is admitted to be change to adverse possession. Possession of a derivative holder may be deemed, to be possession of the original owner. (17) It has also to be born in mind, as a settled principle of law, that acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. THEy may be susceptible of another explanation bear some other character or have come other object when placed in just opposition with some other facts and circumstances. " In S. M. Karim v. Bibi Sakina, AIR 1964 SC 1254, the Supreme Court held as follow: "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 jhe starting point of limitation against* the party affected can be found. THEre is no evidence here when possession became adverse, if it at all and a mere suggestion in the relief clause that there was %n uninterrupted possession for "several 18 years or that the plaintiff has acquired "an absolute title" was not, enough to raise such a plea. Long possession is not necessary adverse possession and the prayer clause is not a substitute or a plea. "