GEETA DUBEY Vs. SAROJ SUHANE

JUDGEMENT

(1.) THIS petition, under Article 227 of the Constitution of India at the instance of petitioner/plaintiff, is directed against the order - dated 1.6.2013; whereby, an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 preferred by the petitioner against the order by Civil Court, rejecting the application under Order 39 Rule 1 and 2 of CPC, has been dismissed.

(2.) SUIT by the petitioner is for declaration of title on the basis of adverse possession and for permanent injunction in respect of the property bearing Khasra No.37/1 (New No.35) situated at Village Kosamghat, Jabalpur on the ground that the petitioner and respondent no.1 jointly availed the loan from respondent no.2 and in lieu of security, the suit land was mortgaged. As per paragraph 4 of the suit plaint, the suit property i.e. Khasra No.37/1 belongs to respondent No.1, who is the owner of the said property and mortgaged along with the land bearing Khasra No.37/2 and 38/2 which belongs to the petitioner. It is alleged that the entire outstanding of Bank was paid by the petitioner's husband in the year 1995 and since then the petitioner is in possession of suit property and her peaceful possession having been disturbed, has led her to file the civil suit wherein an application for temporary injunction was filed. The application was dismissed by the Trial Court by its order dated 16.05.2013 on a finding that the plaintiff has failed to prove the prima facie case. As to possession, the Trial Court has returned a finding in paragraph 20 and 21 that the plaintiff has failed to prove an undisturbed, effective and long period in possession over the suit property. The Appellate Court, in appeal, affirmed the findings. In paragraph 19 of the impugned order -dated 1.6.2013, the Appellate Court has returned a finding that though the plaintiff is shown to be in possession and has cultivated the suit land in the year 2012 -13, but has filed to establish long settled possession : <IMG>JUDGEMENT_34_MPWN1_2014.jpg</IMG>

(3.) FURTHERMORE , it has been held in Chatti Konati Rao vs. Palle Venkata Subbarao (2010) 14 SCC 316 that animus possidendi as is well known is a requisite ingredient of adverse possession and mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose.