WALHA GANPAT TADGE Vs. RAMCHANDRA BALA SANGALE

JUDGEMENT

(1.) THE order challenged in this appeal directs a remand to the trial Court for a decision on the issue as to whether the defendant proves that he had become the owner of the suit land by adverse possession.

(2.) THE deceased plaintiff purchased the suit lands for a consideration of rs. 10,000/- under a registered sale deed dated 20th February, 1969. The plaintiff was put in possession of the suit property under the sale deed itself. The land was acquired for the Girnar Dam Project and the plaintiff then shifted to another village. It appears that the plaintiffs soon expired after a prolonged illnesses and the plaintiff himself has also expired during the pendency of the suit. It appears that the defendant admitted the sale transaction but put up various inconsistent please, in the written statement. The trial Court after a consideration of the pleadings and the evidence before it, decreed the suit and the defendant was directed to hand over vacant possession of the suit land at Jalgaon within one month of the date of the order i. e. from 11th December, 1990. The trial Court has come to the conclusion that the defendant had been changing his version from time to time and that his pleadings were contrary to each other though pleaded in the alternative. The trial court has observed that the defendant had raised two inconsistent pleas, namely, (i) that he was a tenant and (ii) that he was an owner by adverse possession. However, it appears that these please were not pressed by the defendant and the trial Court has recorded that they were not for consideration before it since the first plea regarding tenancy was deleted and the second plea regarding adverse possession was abandoned at the stage of hearing. Being aggrieved by the order of the trial Court, defendant preferred an appeal before the Additional District Judge at Malegaon, District nashik. The Appellate Authority set aside the decree since it accepted the submission made by the defendant that the issue relating to adverse possession of the defendant over the suit land had not been framed. It is this order, which directs the trial Court to decide the issue as to whether the defendant proved that he had become an owner by way of adverse possession, which has been impugned in this appeal from order.

(3.) MR. Joshi appearing for the appellant i. e. the plaintiff submits that when plea has been abandoned by the respondent-defendant, it could not have framed the same issue for decision of the trial Court. He submits that the plea regarding adverse possession must be specific and it must indicate as to when the possession became adverse so that the starting point of limitation can be determined. He relies on the judgment of the Apex Court in the case of (M. Karim v. Mst. Bibi Sakina), A. I. R. 1964 S. C. 1254 and judgment of this court in the case of (Byramjee Jeejeebhoy Private Limited v. Govindbhai Appaji bhatte and others), 1994 (1) Bom. C. R. 211. According to the learned Advocate, there was no need for the parties to have been sent back to the trial court when parties went to trial with knowledge that a particular question was in issue even though no specific issue regarding that plea has been framed. He places reliance on the judgments in the case of (Bhairab Chandra Nandan v. Ranadhir Chandra Dutta), A. I. R. 1988 S. C. 396 and (Nedunuri kameswaramma v. Sampati Subharao), A. I. R. 1963 S. C. 884. He urges, by placing reliance on the judgment in (N. Jayaram Ready and another v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool), 1979 (3) S. C. C. 578, that when the defendant had wilfully abandoned the plea regarding adverse possession, he could not be permitted to raise that plea again to the prejudice of the plaintiff. He points out that when the issues were framed, it was always open for the defendant to request the trial Court to frame an additional issue under Order 14, Rule 5 of the Civil Procedure Code. According to the learned Advocate, this procedure not having been followed by the defendant, the plaintiff could not be prejudiced so as to defeat his rights. The learned Advocate then submits that the suit was filed in 1980 and remanded in 1999. According to him, there was no need to put the clock back after such a long time had lapsed. He places reliance on the judgment of the Apex Court in (State of Punjab and another v. Gram Panchayat and others), A. I. R. 2002 s. C. 1365 and (Ram Singh v. State of U. P.), 1970 (3) S. C. C. 683. He further submits that the defendant ought not to be given the opportunity to fill the lacuna in his evidence after a period of twenty years. In any event, according to the learned Advocate, evidence with regard to adverse possession ought to have been available to the defendant and agitated by him before the trial court. This issue cannot be re-opened in the appellate stage. He places reliance on the judgment in the case of (Koyappathodi M. Ayisha Umma v. State of Kerala), A. I. R. 1991 S. C. 2027.