SARASWATIBAI Vs. LILA

JUDGEMENT

(1.) This Second Appeal was admitted on 2-7-2012 on the following substantial question of law:

(2.) A suit was instituted by one Shriram Sampatrao Tarhekar for possession of the suit land of eight acres and 11/2 gunthas out of field bearing Survey No. 8 admeasuring total area of 16 acres. It was the case of the plaintiff that father of the plaintiff had given on lease the suit land to the father of the defendant. The plaintiff's father applied to Tahsildar, Achalpur for possession of portion of the agricultural land which was let out. The application was registered as Revenue Case No. 1672/59(10F/6061), decided on 26-9-1962 against father of the defendant. The defendant's father gave possession of the suit land to father of the plaintiff on 11-3-1963 under possession receipt, but according to the plaintiff, actual physical possession was not given to the father of the plaintiff. Under these circumstances, father of the defendant continued with possession of the suit field. Father of the plaintiff executed Will and bequeathed the whole area of the land Survey No. 8, admeasuring 16 acres to the plaintiff (including area let out to father of the defendant). In the year 1981, the plaintiff came to know about Succession Certificate Case No. 35 of 1979, decided on 6-2-1981. The plaintiff requested the defendant to hand over possession and also served registered notice dt. 24-4-1987 calling upon the defendant to deliver possession of the suit field, but the defendant did not deliver possession. The defendant in the trial Court had resisted the suit and admitted that the plaintiff's father had leased out the suit field to the father of the defendant. According to the defendant, father of the defendant became owner of the suit field pursuant to price fixed by the President of Agricultural Land Tribunal, Achalpur. The defendant, therefore, contended that the Civil Court has no jurisdiction and that the suit was barred by limitation.

(3.) The trial Court, upon evidence held that the plaintiff has failed to prove that defendant's father gave possession of the suit land on 11-3-1963. Thus, the trial Court negatived the case of the plaintiff for possession of the suit land and held further that the issue of limitation as well as the issue as to whether the defendant became owner of the suit field did not survive. According to the trial Court, the defendant proved that he perfected title by adverse possession. Thus, the suit came to be dismissed on the ground that the defendant was in adverse possession of the suit field. The first Appellate Court confirmed the findings and dismissed the appeal. The first Appellate Court also, thus, negatived the claim to recover possession of the suit field pursuant to taba pavati dt. 11-3-1963 holding that the defendant became owner of the suit field by adverse possession. The learned Counsel on behalf of the appellant canvassed the substantial question of law in view of the evidence led before the trial Court. According to her, there was no any evidence led on behalf of the defendant to prove the various ingredients required to establish ownership by adverse possession and therefore, both the Courts below erred to dismiss the suit for recovery of possession. She submitted that if suit was leased out to father of the defendant, that itself is a fact to negative the plea for adverse possession. Further, according to her, the defendant did not examine himself nor led evidence of any witness to establish the ingredient of adverse possession. The plea for adverse possession must indicate the intention to possess the suit land with animus possidendi i.e. requisite animus for entire period of 12 years in view of Article 65 of the Limitation Act. The evidence has to be led about actual and continuous possession with intention to perfect title by way of adverse possession. It is settled legal position that permitted possession cannot become adverse possession merely because of change in mental attitude of the person in possession. The plea of adverse possession must be established to the satisfaction of the Court. The defendant must first concede that title as owner of the land vested in the plaintiff. The plea of adverse possession would not be available to the defendant if, according to defendant, he or his predecessor-in-title entered in possession lawfully under an agreement (in this case 'taba pavati') and continued to remain in possession till the date of the suit because person who enters in possession of the suit land under lawful tide (as tenant in this case) cannot divest the owner of his title or ownership. In the present case, when specific plea was taken that defendant is owner by adverse possession and there was bar of limitation for the suit in view of Article 65 of the Limitation Act, it was essential for the defendant to enter in the witness box in order to prove or establish his hostile animus as also long uninterrupted possession by exercise of right of ownership to the knowledge of real owner (plaintiff in this case). When no such evidence was led by the defendant at all, there was no question of finding that defendant was owner by adverse possession. That being so, there was clear error on the part of both the Courts below to hold defendant owner by way of adverse possession in the absence of evidence led by defendant. In the circumstances, the appeal has to be allowed. Hence, the order.