AMBA RAM Vs. BHAGIRATH

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the reversing judgment and decree dated 28.8.1998 passed by the 3rd Additional District Judge, Dewas, in Civil Appeal No. 3 A/1998. The appeal was admitted for final hearing on the following questions :-

(2.) PLAINTIFF filed a suit for declaration of title on the plea of adverse possession and also claimed relief of permanent injunction to restrain respondent No. 1 from executing sale deed in favour of respondent No. 2 regarding the suit land.

(3.) PLAINTIFF had admitted the title of respondent No.1 over the suit land. It was therefore, for him to plead and establish necessary ingredients which constitute adverse possession. He admitted in his evidence that prior to demarcation he was not aware that suit land belonging to respondent No. 1 was in his possession. In view of this it could not be said that he was in hostile possession in its inception. Before a neighbour can filch a part of neighbour's land, he must show some act of unequivocal character to put the latter on his guard. Possession to be adverse must only be continuous but it should be visible exclusive and hostile. Stricter and affirmative proof is necessary to establish acquisition of title by adverse possession for the statutory period. The lower appellate Court in absence of positive and affirmative evidence, rightly held that the mere possession would not be enough to constitute denial of title of the real owner of the property. The finding is based on proper appreciation of evidence and could not be said to be perverse in the facts and circumstances of the case in hand. So far as second question is concerned, suffice it to say that plea of settled possession will not protect a trespasser in action against him brought by the owner of the property to claim possession. The plea of settled possession is generally available, depending on the facts and circumstances of a given case, only when a person is sought to be dispossessed of the immovable without due process of law but not in every case. In the present case, plaintiff was rightly denied the permanent injunction on his plea of settled possession. We find no flaw in this finding.