LALA ASA RAM Vs. LALA RAM CHANDER

JUDGEMENT

(1.) This is a plaintiff's appeal against the order of a single Judge of this Court. The plaintiffs filed a suit in which they sought for a declaration that they had acquired a title by adverse possession to a plot of land 8 biswas in extent, namely plot No. 330 in Mahal Baru Mal, mauza Kota. The trial Court dismissed the suit. I n appeal however the learned Civil Judge of Saharanpur reversed the order of the learned Munsif and granted decree as Sirayed for. The defendant came in second Appeal to this Court and the learned single Judge has allowed the appeal and restored the order of the learned Munsif dismissing the suit. The material facts of the case are not in dispute. The title to the land in question is in the defendant. It is a matter of admission however that for a long period of years the plaintiffs had tethered their cattle on the land, and further they had been in the, habit of storing logs of wood thereon. Furthermore, some considerable time ago the plaintiffs, apparently with the intention of building walls to enclose the plot, constructed foundations for these walls. They never however went beyond the construction of the foundations. The land in dispute has never been enclosed by the plaintiffs. In these circumstances the learned single Judge held that although the plaintiffs possession had been open and continuous, it had not been adverse to the defendant or his predecessors and that therefore the plaintiffs had failed to show that they had qualified a title to the land by adverse possession.

(2.) We find ourselves in agreement with the learned single Judge. The mere tethering of cattle and storing of logs on a piece of waste land does not amount to denial of title of the true owner of the land. The principle to be applied in cases of this kind was reiterated in a judgment of the Privy Council in Secy. of State v. Debendralal Khan . There, their Lord-whips approved of the principle that the possession required to establish a title to immovable property under the Limitation Act 1908, Section 28 and Art. 144 must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.

(3.) In our judgment the tethering of cattle on the land in dispute, which is waste land, and the storing of logs thereon, is no indication of possession which is intended to be adverse to the title of the proprietor of the land. In this connexion we would refer to the decision in Framji Cursetji V/s. Goculdas Madhowji (1892) 16 Bom. 338. The facts of that case were that a party claiming to have established a right to land by adverse possession had proved that on the land in dispute he had erected a privy and shed for cows, goats, fowls, &c, and a hut for a ghariwallah, all however structures of a flimsy and purely temporary character.