Full Judgment
1 Second Appeal No.765/98 Rajkumar & others Smt.Ramrani & others 11.9.2012 Shri B.M.Dwivedi, Counsel for appellants.
Heard on admission.
This appeal is directed against judgment & decree dated 8.5.1998 by 4th Additional District Judge, Sagar in Civil Appeal No.4-A/1998 by which judgment & decree dated 1.9.1997 in Civil Suit No.37-A/1989 by the 3rd Civil Judge Class-II, Sagar was affirmed.
Both the Courts below decreed the suit of the respondents.
The judgment and decree passed by the Courts below have been assailed by the appellants mainly on the ground that the suit was barred by limitation and the appellants were in exclusive possession of the property since 1951-1956 in the knowledge of the respondents.
The plea of adveRs.possession was also not considered by the Courts below.
To appreciate the contentions of the appellants, judgment and decree passed by the Courts below and record perused.
Facts of the case are that respondents filed a suit on the ground that the land survey No.719 area 3.57 acres was purchased by Bhagwan Singh, husband of plaintiff No.1 Ramrani and Takhat Singh, husband of co-deceased- plaintiff Neema bai on 26.10.1951.
Since then they were in possession as Bhoomiswami of the land.
On the basis of sale-deed, names of Bhagwan Singh and Takhat Singh were recorded in the revenue papeRs.Part of the land Survey No.719 area 1.8 2/3 acres was sold by Bhaiyaram, father of appellants No.1, 2 & 3 in favour of defendant Rajkumar.
Aforesaid sale-deed was illegal and was not affecting the rights of plaintiffs as it was the property of Bhagwan Singh and Takhat Singh.
Aforesaid land was purchased by Bhagwan Singh and Takhat Singh by a registered sale-deed dated 26.10.1951.
Any subsequent sale deed was not affecting their right.
Both the 2 Second Appeal No.765/98 Rajkumar & others Smt.Ramrani & others 11.9.2012 Courts below found that aforesaid lands were purchased by Bhagwan Singh and Takhat Singh by a registered sale-deed dated 26.10.1951.
The land which was sold to defendant by Bal Giri and Virendra Giri was without any right.
Subsequent sale- deed is dated 22.11.1956 for the same land, which was purchased by the defendants, does not affect their right as they were prior purchaser of the land.
Both the Court below found that the by a subsequent sale-deed dated 22.11.1956, though the same land was sold in favour of the defendants, but without any right and title and decreed the suit of the plaintiffs/respondents.
So far as the plea of adveRs.possession is concerned, the appellate Court in Para 24 of the judgment has considered this aspect and held that there was no division between the co-owners and even if there was possession of one co-owner then it cannot be treated as an adveRs.possession against the co-owner.
Apart from this, it is settled law that to prove a plea of adveRs.possession, the party claiming adveRs.possession against other side has to show that when his possession became adveRs.against other side, starting point of his adveRs.possession, specific overt act denying title of the other side and that his possession was continuous in the knowledge of the other side.
Until and unless such are pleaded and proved, plea of adveRs.possession cannot be found proved.
In this case, neither there were pleadings not there was evidence.
In these circumstances, if the Courts below have not found any case of adveRs.possession against the appellants, no fault is found.
Though aforesaid contentions are raised by the appellants but in view of the aforesaid findings recorded by the Courts below that the suit was within limitation, no right was accrued to the appellants by way of adveRs.possession against the co-owner, 3 Second Appeal No.765/98 Rajkumar & others Smt.Ramrani & others 11.9.2012 no case is made out for admission of this appeal.
Looking to the concurrent findings recorded by the Courts below, this appeal is found without merit and is dismissed at admission stage with no order as to costs.
(Krishn Kumar Lahoti) Judge C.