AYODHYA Vs. DEPUTY DIRECTOR OF CONSOLIDATION VARANASI

JUDGEMENT

(1.) ADMITTEDLY the land in dispute belongs to one Smt. Ram Kala. Petitioners are the descendants of Smt. Jokhani, one of the daughter of Smt. Ram Kala. The opposite parties claimed to be the sons of another daughter, Smt. Mokhani. Before the consolidation courts one of the question was whether Smt. Ram Kala had one daughter Smt. Jokhani or two Smt. Jokhani and Smt. Mokhani. Consolidation authorities nave recorded a finding, after considering the evidence on record, that both Smt. Jokhani and Smt. Mokhani were daughters of Smt. Ram Kala. The finding is based on the appreciation of the evidence. The learned counsel for the petitioner, however, argued that Smt. Ram Kala died on 4th August, 1974 whereas the suit by Smt. Mokhani's son was filed on 26th August, 1976. As the period of 12 years had expired, they acquired rights by adverse possession. The Consolidation Officer accepted this plea. But in appeal the order was set aside and it was found that the petitioners did not take a specific plea on the question of adverse possession and no issue has been framed. He did not consider it proper to record any finding on the question of adverse possession. In the revision, the Deputy Director of Consolidation calculated the limitation from July next 4th of August, 1974 and according to him the suit filed on 26th August, 1976 was within limitation. The approach of the Deputy Director of Consolidation has been characterised as contrary to the provisions of law as he committed an error in calculating the limitation as provided under Section 209 of UP ZA Act, 1951.

(2.) THERE is substance in the argument of the learned counsel for the petitioner that in cases of co-sharers the limitation could be counted from the date of adverse possession. The question, however, is whether the petitioner have been able to establish adverse possession against the opposite parties, who, on the admitted findings, were co-sharers. It is settled that to establish adverse possession against co-sharers the person claiming adverse possession has to prove hostile possession to the knowledge of the person against whom the adverse possession is claimed. This could be established by evidence. In case the petitioner did not plead or lead any evidence it was not possible for the courts to record any finding.

(3.) THE allegation in this paragraph did not make out a case of adverse possession against the opposite-parties. He might have been in possession against the opposite parties. He might have been in possession in denial of rights to the entire World but that will not give him a right against the opposite party unless it is established that his possession was hostile to the knowledge of the opposite-party. THE petitioners based their claim on denial of any right to Smt. Jokhani as she was not the daughter of Smt. Ram Kala. THEy never accepted her title and never pleaded their possession in denial of her title.