P.S. Brahme, J.
1. This is an appeal by the appellant-original defendant No. 2 in Regular Civil Suit No. 365 of 1979 against the judgment and decree dated 24th December, 1986 passed in the said suit by Joint Civil Judge (Junior Dn.), Wardha being confirmed by the 3rd Additional District Judge, Wardha vide judgment and decree dated 7th February, 1990 in Regular Civil Appeal No. 29 of 1987.
2. Respondent No. 1 Mahadeo Bhagwan and respondent No. 2 Krishna Bhagwan, who are real brothers, have filed the aforesaid suit for declaration, injunction and possession of the suit property mentioned as open plot with plinth over it on the averments in the plaint as follows:
Their father namely Bhagwan, admittedly, owned the suit property and after his death, on 9-2-1965, the plaintiffs succeeded to his estate. The said property was in possession of plaintiff No. 1. The suit plot was used by the plaintiffs for storing sundry materials and there was a temporary structure on it which was constructed from time to time. The house and the plot on which there is a construction of plinth are shown in the name of plaintiffs in assessment of tax.
3. It is the case of the plaintiffs that the original defendant No. 1 Wardha Nagorao Patil was a money lender and there was some money lending transaction between their father and defendant No. 1 prior to 1995 and plaintiff's father had given writing to defendant No. 1 and it was as a security for the loan. However, original defendant No. 1, for the first time, tried to assert his right over the plinth in the month of November, 1979 with an intention to take forcible possession. Therefore, original plaintiff No. 1 had lodged report with the police. Original defendant No. 1, by taking undue advantage of the writing, got his name recorded against the suit plot in the Gram Panchayat record without any notice to the original plaintiffs. He also executed one sale deed in favour of original defendant No. 2 i.e. present appellant on 14-11-1979. The appellant also lodged report against plaintiffs on 21st November, 1979 alleging that plaintiffs constructed a structure over the suit plot. The police seized the standing structure on the suit plot which consisted of wooden poles and tin sheets. Original plaintiff No. 1 was prosecuted. The appellant, therefore, tried to obstruct plaintiffs' possession over the suit plot which was continuous, open and adverse to the knowledge of appellant as well as deceased-defendant No. 1. It was, for the first time, that the appellant and original defendant No. 1 asserted their rights since 1950, though there was a writing in their favour. Plaintiffs were in possession of the suit plot since the last 28 years and they have acquired title by adverse possession. However, the appellant took forcible possession of the suit plot on 26-3-1980 after the application for temporary injunction filed by the plaintiffs was rejected on 7th March, 1980. The plaintiffs, therefore, claimed declaration that they have become owners of the plot by adverse possession and also for possession of the suit plot as plaintiffs were dispossessed during pendency of the suit. Plaintiffs also sought further relief of permanent injunction against the defendants.
4. Original defendant No. 1 resisted plaintiffs' claim by his written statement (Exhibit 21). It is, however, denied that plaintiffs owned the house and plot. The map is denied. It is contended that the house of plaintiffs is situated on plot No. 140/1 and the plot in the suit is bearing No. 140/2. It is contended that the defendant purchased the suit plot along with western wall and remaining plinth in a dilapidated condition for Rs. 100/- on 12th July, 1950 and on the same day, he was placed in possession of the same. The defendant then sold the said site to above defendant No. 2 by registered sale deed dated 14th November, 1979 for a consideration of Rs. 2,000/-. It is denied that the plaintiffs were in possession of the suit plot till 14-11-1979 right from 12-7-1950. It is contended that the defendant has been using the structure and site for stocking his fuel till it was sold out to the appellant. In the year 1968, there was an enquiry by the Government of Abadi. After hearing objections, the map and Adhikar Abhilekh were confirmed. The plaintiffs did not take any objection till 1979. Therefore, the plaintiffs cannot challenge the title of defendant. Defendant paid the rent on 22-11-1979 for 29 years. Any money lending transaction between this defendant and Bhagwan is denied. According to the defendant, he was a cultivator and broker. He never advanced any loan to Bhagwan. The contentions of plaintiffs that it was a money lending transaction and defendant No. 1 was never put in possession are denied. It is denied that, for the first time, in the year 1979, defendant No. 1 tried to take possession. It is contended that plaintiff No. 1 had tried to put the tin sheets on the plot and therefore, plaintiff No. 1 was prosecuted for the offence under section 448 of the Indian Penal Code. The contention of plaintiffs about adverse possession is denied. It is contended that title of defendant No. 1 over the suit plot is already ripened by adverse possession if it is held that the document dated 12-7-1950 does not transfer any title. The suit is filed 29 years after the sale deed and therefore, the same is barred by limitation. So the defendant contended that the suit be dismissed.
5. Appellant-defendant No. 2 also resisted plaintiff's claim by his written statement (Exhibit 25). He has denied any transaction between Bhagwan and defendant No. 1 for want of knowledge. He contended that before purchase of the plot from defendant No. 1, he had verified title of defendant No. 1. He denied that he had tried to take forcible possession of the plot in the month of November, 1979. This defendant also lodged report against plaintiffs on the basis of which plaintiff No. 1 was prosecuted for the offence punishable under section 448 of the Indian Penal Code. He also denied plaintiffs' contention of adverse possession. It is denied that this defendant took forcible possession on or about 26-3-1980. Defendant has constructed tin sheet over the suit plot and started tailoring job. It is specifically denied that plaintiffs were dispossessed. According to the defendant, plaintiffs' suit is liable to be dismissed.
6. Parties went on trial with issues framed at Exhibit 31. The learned Judge of the trial Court found that plaintiffs were in possession of the suit property shown by letters ABCJ till the date of filing of the suit. That defendant No. 1 failed to prove that he purchased the suit plot under the document dated 12-7-1950. Defendant No. 1 also failed to prove that he was in possession of the plot since the date of Exhibit 74 dated 12-7-1950. The Judge also found that defendant No. 1, in the alternate, failed to prove his title to the suit plot by adverse possession. However, plaintiffs have proved their title to the suit plot by adverse possession. Defendant No. 2 failed to prove his possession over the suit plot since 14-11-1979. It was found that plaintiffs have prove that defendant, for the first time, asserted their right in the month of November, 1979 vis a vis the suit plot. Plaintiffs' suit and particularly, claim for possession was within limitation. Plaintiffs were entitled for declaration injunction and possession. Consequent upon these findings, the Judge of the trial Court decreed the plaintiffs suit in terms as sought for.
7. As stated earlier, the appellant, feeling aggrieved by the judgment and decree passed by the Appellate trial Court, preferred Regular Civil Appeal No. 29/1987 and the said appeal came to be decided by 3rd Additional District Judge, Wardha on 7th February, 1990. The Appellate Court recorded positive findings on point Nos. 1, 2 and 5 holding that plaintiffs were in possession of the suit site since long and their possession was forcibly disturbed by defendants on or about 26-3-1980 when the application for temporary injunction was rejected and plaintiffs have acquired title to the suit site by adverse possession and plaintiffs are entitled for declaration, possession and injunction. The Appellate Court also recorded negative findings on point Nos. 3, 4 and 6 holding that defendant No. 1 failed to establish that he purchased the suit plot by sale deed dated 12-7-1950 and the defendant has acquired title by adverse possession over the suit plot. The Appellate Court recorded a finding that the judgment and decree passed by the trial Court Judge needs no interference. That is how, the appeal has been dismissed confirming the judgment and decree passed by the trial Court. Hence, the appellant-defendant No. 2 has preferred the present second-appeal.
8. This Court, on 7-9-1990, admitted the appeal on the point of adverse possession only. The appellant is, admittedly, in possession of the suit property. He claims to be owner thereof by virtue of sale deed dated 14-11-1979 (Exhibit 79), admittedly executed by original defendant No. 1. It is admitted that the suit property which was open plot belonged to Bhagwan Umak, who was father of original plaintiffs. He died on 9-2-1965 and original plaintiff succeeded to this suit property. It is the matter of record that deceased Bhagwan had executed a deed in respect of the suit property in favour of original defendant No. 1 on 12-7-1950. This document was, in fact, a sale deed Exhibit 74. But, the courts below have concurrently found that, by this sale deed (Exhibit 74), original defendant No. 1 did not get title over the suit plot, though the document was styled as a sale deed. The amount mentioned towards consideration of the suit plot is Rs. 100/-. According to section 17 of the Indian Registration Act, for a transaction of any immovable property worth Rs. 100/- or upwards, registration is must. Admittedly, the document Exhibit 74 is not a registered document and therefore, the document Exhibit 74 does not create a title in respect of the suit plot vis a vis original defendant No. 1. However, both the courts below have concurrently found and rightly so, that the said document can be used for collateral purposes about the property and possession thereof. It is not in dispute that a person having invalid document in his favour can claim adverse possession from the date of document, which could have been otherwise legal, but for want of registration, provided he proves his possession from the date of execution of that document.
9. In the instant case, the controversy between the parties is over factual position as to possession of the suit plot. According to the plaintiffs, in spite of deceased Bhagwan having executed the document Exhibit 74 on 12-7-1950, the suit plot remained in his possession and after his death, plaintiffs continued possession and when obstruction was caused by the defendants, plaintiffs were required to file suit for declaration and permanent injunction and further, during pendency of the suit, after plaintiffs' application for temporary injunction has been rejected, defendants forcibly took possession of the suit plot and therefore, the plaintiffs were required to claim possession of the suit plot. It is the case of the plaintiffs that, as the suit plot continued in their possession inspite of the document Exhibit 74 being executed by their father and it was, for the first time, in the year 1979 that the defendants caused obstruction to their possession, plaintiffs have become owner of the plot by adverse possession. As against that, the appellant-original defendant No. 2, who derived title in the suit plot by virtue of sale deed Exhibit 79 dated 14-11-1979, claimed to have become owner by adverse possession. It was his case that, in pursuance of the document Exhibit 74 dated 12th July, 1950, though defendant No. 2 did not get title, he got possession of the suit plot as recited in the sale deed Exhibit 74 and he continued with possession till the suit plot was sold to the appellant by sale deed dated 14-11-1979 (Exhibit 79). Defendants have specifically denied plaintiff's claim that the suit plot remained in their possession till filing of the suit and that defendants dispossessed plaintiffs during pendency of the suit and more particularly, after plaintiff's application for temporary injunction was rejected. It is, therefore, in this context that the defendants have also claimed to have acquired title over the suit plot be adverse possession.
10. Mr. A.B. Chaudhary, the learned Counsel for the appellant, submitted that both the courts below have committed an error in arriving at the finding that the plaintiffs continued in possession of the suit plot in spite of execution of document Exhibit 74, dated 12-7-1950 and also plaintiffs having earned title by adverse possession. He pointed out that in the sale deed (Exhibit 74) it is clinchingly recited that possession of the suit plot was given to original defendant No. 1 and that the courts below have sheerly ignored these recitals in Exhibit 74 without assigning any reason. The courts also did not take into consideration the public document Exhibit 76 i.e. Adhikar Abhilekh etc. entries in which were recorded after due inquiry way back in the year 1967 by the Government Officers after inviting objections. By this document Exhibit 7, the name of defendant No. 1 came to be recorded in respect of the suit plot. The entries are made in Exhibit 76 on the basis of factual possession. However, the courts below did not correctly interpret this document Exhibit 76. The courts below also did not take into consideration the fact that defendants paid tax in respect of the suit plot as could be seen from the tax receipt for 29 years i.e. from 1952 to 1979. The courts below did not assign any reason why the said documentary evidence indicating possession of the defendant vis a vis the suit plot was not taken in consideration. The learned Counsel further submitted that the courts below committed an error in holding that plaintiffs have acquired title by adverse possession when neither it is pleaded by plaintiffs nor there is any evidence showing that plaintiffs asserted their hostile title vis a vis the suit plot against the defendant. So the finding recorded by the courts below regarding adverse possession is based on no evidence. As against that, the courts blow should have recorded a finding that defendants have acquired title over the suit plot by adverse possession having regard to the material evidence indicating that the suit plot was very much in possession of defendant No. 1 since execution of deed Exhibit 74 and that of defendant No. 2 since transfer of the suit plot by sale in his favour by defendant No. 1. It is submitted that as defendants have become owner by adverse possession, plaintiff's suit for possession on the basis of title was barred by limitation. That is much more so when plaintiffs have failed to prove, according to the learned Counsel for the appellant, that they have become owner by adverse possession. He, therefore, urged that though it is a case of concurrent finding of fact, the High Court has every power under section 100 of the Code of Civil Procedure to interfere with as the finding of fact basically as to possession by the courts below was arrived at in ignorance of material and relevant evidence.
11. Mr. Paliwal, Advocate appearing for the respondents supported the judgment of courts below. He submitted that the sale transaction between father of plaintiffs and original defendant No. 1 was not a true transaction of sale. It was actually loan transaction and for that purpose, deceased executed the document Exhibit 74 as a security for the loan taken. So plaintiffs continued to be owner of the property by succession after death of their father Bhagwan. The title in the suit property did not pass to original defendant No. 1 as has been concurrently held by the courts below. As regards the factual position regarding possession of the suit plot, he submitted that plaintiffs were paying tax of the suit plot from beginning. Defendants tried to obstruct plaintiff's possession in November, 1979 for which plaintiffs lodged complaint to the police. Defendant No. 1 got recorded the name in Gram Panchayat record in respect of the suit plot in the year 1979 for the first time on the basis of the deed Exhibit 74. The learned Counsel pointed out specifically that from 1950 till 1979 defendant No. 1 did nothing, though the document Exhibit 74 was with him in respect of the suit plot. As against that, plaintiffs, from time to time, asserted their title over the suit plot having acquired the same by adverse possession. When there was obstruction by the defendants in the year 1979, plaintiffs lodged complaint again indicating their assertion of title and possession of the suit land. Defendant No. 1 did not get title over the suit plot as has been rightly held by the courts below as the deed Exhibit 74 was not legal and valid in the eye of law for want of registration. The Counsel pointed out that defendants paid tax for 29 years in the year 1979 only. Therefore, the courts below were right in recording the finding of fact as to possession in respect of the suit plot vis a vis plaintiffs. It is not the case where the courts below have committed an error in recording finding of fact by ignoring the positive evidence as contended by the learned Counsel for the appellant. In respect of the recitals in the sale deed Exhibit 74 and also recording of the name of defendants vide entry Exhibit 76, both the courts below have assigned reasons as to why that documentary evidence is not acceptable to establish the claim of possession of the suit plot by defendants. If that is so, this Court in second appeal has no jurisdiction under section 100 of the Code of Civil Procedure to interfere with the concurrent findings of fact. In case of concurrent findings of fact by the courts below, High Court in the second appeal has no jurisdiction to reappraise the evidence and substitute its own findings, even though the findings of fact recorded by the courts below is found to be erroneous and on appreciation of evidence, it is possible for the High Court to arrive at different finding. He, therefore, urged that the appeal merits no consideration at all and as such, the same should be dismissed.
12. Before we embark upon the submissions of the learned Counsel for the appellant and respondents, it would be useful to refer to the decisions to which reference has been made by the learned Counsel for the parties. The first decision referred by Mr. A.B. Chaudhari, the learned Counsel for the appellant is in the case of Dilbagrai Punjabi v. Sharad Chandra, reported in 1988 (Supp.) SCC 710. In this case, the dispute was between landlord and tenant and the proceedings has reached to the Apex Court in appeal against the decree for possession on eviction of the tenant. There was material evidence on record showing that tenant-appellant had accepted respondents' title. The trial Court as well as the Appellate Court, however, did not take into consideration this important relevant evidence and therefore, the suit of the landlord was dismissed. The High Court, interfered in the matter in second appeal and set aside the finding of fact on the ground that the said finding of fact was arrived at in ignorance of the material and relevant evidence on record. In this context, the Apex Court held that the High Court can reverse concurrent findings of fact in second appeal, on failure of courts below to consider important and relevant evidence. The Apex Court observed that though the High Court, while hearing the appeal under section 100 of the Code of Civil Procedure, has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first Appellate Court, but at the same time, its power to interfere with the finding cannot be denied if when the lower Appellate Court decides an issue of fact a substantial question of law arises. The Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding.
13. The Apex Court in Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (Smt.) and others, reported in : AIR1996SC869 , has considered the question of adverse possession in the context of the evidence on record and has observed that 'we may emphasize that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.' It is in this context that it was submitted by Mr. A.B. Chaudhari, Advocate for the appellant that plaintiffs were required to make it clear in the pleading as to from what time their adverse possession commenced. In the absence of that, plaintiffs cannot claim title by adverse possession.
14. In Ramlal and others v. Chetu @ Chet Ram and others, reported in , the High Court has observed that, 'It is true that the question whether the possession of land is or is not adverse is a question of fact, but a second appeal can lie from such a finding when it is a mixed question of law and fact depending upon the proper legal conclusion to be drawn from the findings as to facts. The High Court further observed that if the possession is permission and not antagonistic to the owner, it cannot ripen into title by mere possession. In that case, the tenant claimed to be owner by adverse possession. The Court observed that the possession of the tenant is that of his landlord and will be so presumed until the contrary is proved by clear and convincing evidence, for every presumption is in favour of possession in subordination to the true owner. Although possession of a tenant, however full and complete, does not of itself operate as an ouster of the owner, the mere fact that a person enters as a tenant does not preclude him from acquiring title against his landlord by adverse possession. It can operate as an ouster if he abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself. The fact that a tenant continues to retain possession of the property after the expiry of the lease or the fact that he fails or refuses to pay the rent is not sufficient to show that he holds adversely to the landlord unless he actually sets up an exclusive right in himself by some clear, positive and unequivocal act. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner i.e. when the acts of the tenant are of such a character as to show that he claims exclusive ownership and denies the right of the owner. Mere declarations are not enough.
15. In this context, the submission by the learned Counsel for the appellant was that the plaintiffs have failed to make out their case, either from the pleadings or from the evidence, that they had asserted their possession hostile to the title of defendants and therefore, plaintiffs cannot claim to have become owner by adverse possession.
16. In Mohan Lal (deceased) through his L.Rs. Kachru and others v. Mira Abdul Gaffar and another, reported in : (1996)1SCC639 , the Apex Court held that in case a party is in possession of the land pursuant to agreement of sale, plea of title by adverse possession is not available to him. The Apex Court observed that such a plea is inconsistent with the plea for retaining possession by operation of section 53A of Transfer of Property Act, 1882. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e. upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on section 53A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.
17. In Suhashini Dasi v. Ahi Bhusan, reported in : AIR1963Cal520 , it is held, 'The adverse possession by a co-sharer to succeed against another co-sharer must be one 'nec vi nec clam' and ''nec precario'. In other words, such possession to be adverse must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitor. Secondly, it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the property. The ouster of the non-possessing co-sharer by the co-sharer in possession who claims title by adverse possession may be clearly established and made out. Such possession cannot be adverse by merely cherishing a hostile animus without any overt hostile acts to call the attention of the other co-sharers that they are intended to be ousted. The burden of proving ouster is on the person claiming to displace the lawful title of a co-sharer by his adverse possession and there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other so as to constitute the ouster'.
18. In I.L.R. 1989 282, Sayyad Nyamtula v. Nana Valad Faridsha, it was held that under Article 144 of the Limitation Act of 1877, it is not for the plaintiff to prove that he has been in possession within 12 years before suit, but it is for the defendant to show that he has held adversely to the plaintiff for 12 years. The learned Counsel for the respondent submitted with emphasis, placing reliance on this case, that original defendant No. 1, while claiming ownership by adverse possession is respect of the suit plot, has failed to establish his possession for over 12 years before institution of the suit and that, defendant No. 1 also failed to assert his hostile title by possession since after execution of the deed Exhibit 74.
19. In the case of Balaji v. Pandurang and others, A.I.R. 1928 Nag 306, it has been held that if possession does not pass under the sale, a presumption is apt to arise straightway that the sale deed is a fraudulent one. The learned Counsel for the respondent placed reliance on this case that defendant No. 1, in spite of said deed Exhibit 74 being executed in his favour by deceased Bhagwan in the year 1950, did nothing to establish his title as well as possession. But, it was only in the year 1979 that defendant No. 1 caused obstruction, for which plaintiff lodged complaint and thereby plaintiffs asserted their possession. This factual position, as has been accepted by the courts below, definitely goes to show that defendant No. 1 did not acquire title over the suit land, much less title by adverse possession.
20. In Firm Sriniwas Ram Kumar v. Mahabir Prasad and others, reported in : [1951]2SCR277 , it has been held by the Apex Court that a plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. It is observed further that ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. The learned Counsel for the respondent has placed reliance on this case to justify alternate claim of plaintiffs for possession of the suit property on the basis of pleading that plaintiffs have acquired title by adverse possession, event though under the sale deed Exhibit 74 no title in the suit property passed to defendant No. 1 in the eyes of law for want of due registration of the deed Exhibit 74.
21. Now we consider the factum of possession of the suit plot on the basis of the evidence led by the parties before the trial Court. Besides oral evidence of plaintiffs and the witnesses examined by the plaintiffs, reliance has been placed on the tax receipt Exhibits 41 to 61 and assessment list Exhibit 62. It is pertinent to note that in Gram Panchayat record the suit property is recorded in the name of father of plaintiffs namely Bhagwan and the tax receipt Exhibits 42, 43, 44 and 46 go to show that plaintiffs have paid tax in respect of the suit property which stood in the name of their father Bhagwan Govind Omak. It is also clear from the record that after death of Bhagwan the suit property in the Gram Panchayat record came to be recorded in the name of plaintiffs and accordingly, the tax receipts Exhibits 48 to 50, 51 to 59 i.e. for the years from 1967 to 1979 the suit property which is shown as open plot of land suit (sic stood) in the name of plaintiffs. This has significance in the background that defendant No. 1 purchased the suit property under sale deed Exhibit 74 on 12th July, 1950. Defendant No. 1 also claimed to have been placed in possession of the suit property under the sale deed Exhibit 74 right from the year 1950. But, in the Gram Panchayat record till the year 1979, the name of plaintiffs as a owner and a person in possession continued. The trial Court has given much emphasis on this fact as to the record of Gram Panchayat in respect of the suit plot showing plaintiff's name in respect of the suit plot till the year 1979 and there being no change made in it till the year 1979 in Gram Panchayat record by either of the defendants. Plaintiff No. 1, in his evidence, also stated that he was in possession of the suit plot. He was storing his material in the suit site. He has assertively stated that defendant was not in possession of the suit site when it was sold to defendant new when obstruction was caused in the year 1979. According to the plaintiff, he lodged complaint and gave report to Police Station, Pulgaon. Thereafter, according to the plaintiff, when he filed the suit claiming injunction and when his application for temporary injunction was rejected, defendant new took forcible possession of the suit plot and that is why, he was constrained to claim possession of the suit plot.
22. The trial Court also considered the evidence adduced by the defendant to substantiate his claim for possession. Plaintiff has specifically denied that defendant No. 1 was keeping sundry articles and fuel in the suit plot. He, however, admitted that defendant No. 2 built a house of stone and mud on the suit plot. Plaintiff's witnesses have also corroborated plaintiffs' case as to their possession of the suit plot, as also, obstruction by defendants. Plaintiffs' witness Govind Pillewar, who was Sarpanch of village Nachangaon since 1984, brought with him assessment register for the years 1967-68 and 1962-63 and according to him, Entry No. 1260 belonged to the open plot belonging to the plaintiffs and Entry No. 1261 is of the house of plaintiffs.
23. Defendant No. 1, in his evidence, claimed that he got possession of the suit plot by virtue of sale deed Exhibit 74 and he was in possession of the same using the same for storing fuel. It is very significant to note that witness Rahim Khan who was examined on behalf of defendants and who was Sarpanch of the village Gram Panchayat for the period from 1978 to 1984 admitted the assessment list Exhibit 62. Defendant also placed reliance on the tax payment receipt Exhibit 78 whereunder defendant No. 1 paid property tax to the Gram Panchayat in respect of the suit plot on 22-11-1979 for the year 1950-51 to 1978-79. The trial Court, in this context, observed that defendant No. 1's name was recorded in the Gram Panchayat record in the year 1979. Defendant No. 1 sold the suit plot by sale deed dated 14-11-1979 to defendant No. 2 and defendant No. 1 paid tax for 29 years at a stretch on 22-11-1979. Defendant also placed reliance on the entry Exhibit 76 whereunder defendant No. 1's name came to be recorded in respect of the suit plot on the basis of the sale deed Exhibit 74 dated 22-7-1950. It was the contention of defendant No. 1 that the Survey Officer, after making inquiry and taking measurements, made an entry in the name of defendant No. 1. It is not known at what time this entry was made in the record of right. However, the entry Exhibit 76 shows that the date of enquiry was 17-9-1969. Much emphasis was given on behalf of the defendants on the basis of this entry Exhibit 76 to substantiate the claim of possession. The trial Court has not accepted this entry Exhibit 76. According to the trial Court, the very title of this document is 'Kuccha Adhikar Abhilekh and Hakkache Chowkashichi Panji'. This document-deed referred to the inquiries made, but it does not give the date. This document does not show that defendant No. 1 was in possession of the suit plot on the date when sale deed Exhibit 74 was executed. The trial Court, therefore, found that entry Exhibit 76 was of no consequence to support the claim of defendant as to possession. The trial Court accepted the contention of plaintiff No. 1 that he was prosecuted for the offence punishable under section 448 of the Indian Penal Code which was initiated on the basis of the complaint lodged by defendant new. That very prosecution shows that, on the date of that report, plaintiff No. 1 had possession over the plot with the structure thereon.
24. The Appellate Court, in its judgment, dealt with the issue as to factum of possession of the suit plot. As stated earlier, the Appellate Court has recorded an affirmative finding on point No. 1 holding that plaintiffs were in possession of the suit site since long and their possession was forcibly disturbed by defendant No. 2 on or about 26-3-1980. The application for temporary injunction was rejected. The Appellate Court accepted plaintiffs' evidence showing that plaintiffs were in possession of the suit site, after death of their father and before that, their father was in possession of the suit site since beginning. As regards certified copy of Kuccha Adhikar Abhilekh Exhibit 76, the Appellate Court found that these documents go to show that defendant No. 1 paid tax in the month of November, 1979 for the period from 1950 to 1979 and Exhibit 76 shows that it is a document of inquiry regarding recording the names in the record of right. However, it was not made clear as to why the inquiry was made. So, the Appellate Court found that these documents are not of any assistance to defendant No. 1 to substantiate his claim for possession over the suit plot. The Appellate Court also found that the fact that defendant No. 1 paid tax for 29 years at a stretch under receipt Exhibit 79 itself created doubt about his possession of the suit plot. As against that, payment of tax in respect of the suit plot by plaintiffs continuously till the year 1984-85, in spite of the sale deed Exhibit 74 in the year 1950, supported the claim of plaintiffs that they were in possession of the suit plot. The Appellate Court also confirmed the findings of the trial Court that plaintiffs were in possession of the suit plot when the suit was filed and they were dispossessed during pendency of the suit when their application for temporary injunction was rejected.
25. I have independently assessed the evidence led by the parties. In my own assessment of the evidence, I have no hesitation in holding that plaintiffs have proved that they were in possession till the date the suit was filed and that they were dispossessed during pendency of the suit. As such, I do not find that any error has been committed by the courts below in recording a finding of fact as to possession of the suit plot. But, the learned Counsel for the appellant, has submitted that this finding of fact is perverse as both the courts below have ignored relevant and material evidence on record. Therefore, he contended that the High Court can interfere with the finding of fact in exercise of powers under section 100. In the first place, the learned Counsel for the appellant pointed out from the sale deed Exhibit 74 that deceased Bhagwan had given possession of the suit plot to defendant No. 1. That is so recited in the sale deed Exhibit 74. Therefore, it was submitted with emphasis that oral evidence contrary to the recitals in the document was not permissible and therefore, plaintiffs could not be heard in contending that they continued in possession of the suit plot inspite of execution of sale deed Exhibit 74. I have considered the submission very carefully. There is no dispute of the fact that, in the sale deed Exhibit 74, there is a recital of possession being given by deceased Bhagwan to defendant No. 1. It is also true that both the courts below have not dealt with this aspect of the matter. But, having regard to other circumstances attending the case, I am of the opinion that mere recitals in the sale deed Exhibit 74 about giving possession of the suit plot to defendant No. 1 alone is not sufficient to justify the claim of defendant No. 1 that the suit plot was in his possession actually since the date of sale deed. I have already pointed out that no step has been taken by defendant No. 1, since the date of sale deed Exhibit 74 till the suit was filed, to record him name in the Gram Panchayat record in place of plaintiffs on the basis of sale deed Exhibit 74. As against that, in spite of sale deed Exhibit 74, name of plaintiffs' father continued in the Gram Panchayat record and after his death, that of plaintiffs and this fact is supported by the entry Exhibit 62, as also, tax payment receipt to which reference is already made. As against that, it was after the suit plot was sold to defendant No. 2, that all the endeavour was made to change the Gram Panchayat record and obstruction was caused and complained was lodged against plaintiff No. 1. In this context, it is very pertinent to note that defendant No. 1 paid tax on 22-11-1979 under receipt Exhibit 79 at a stretch for 29 years. This is significant because defendant No. 1 sold the suit plot on 14-11-1979 to defendant No. 2. As against that, the Gram Panchayat record, as per entry in the assessment list Exhibit 62, the suit plot stood in the name of plaintiffs. Therefore, the entire material and documentary evidence on which plaintiffs have placed reliance, totally wipes out truthfulness of the recitals in the sale deed Exhibit 74.
26. Much has been made about the entry Exhibit 76 in respect of inquiry, whereunder name of defendant No. 1 came to be recorded on the basis of the sale deed Exhibit 74. As stated earlier, both the courts below dealt with this entry Exhibit 76. Therefore, there is no force in the submission of the learned Counsel for the appellant that the courts below and more particularly, the Appellate Court has ignored Exhibit 76. In my opinion, assessment of Exhibit 76 by the Appellate Court is absolutely right. I do not think that the Appellate Court or the trial Court has committed any error in not accepting the entry Exhibit 76. Mr. Choudhary, the learned Counsel for the appellant, submitted that correctness of this entry cannot be questioned by the parties. I do not think that it could be so. But, apart from that there is nothing on record to show that plaintiffs were aware of the inquiry that was made by the surveyor in pursuance of which, the entry Exhibit 76 came to be made. If that is so, that entry is not at all binding on the plaintiffs. There was no occasion for the plaintiffs to object recording of names of defendant No. 1 vide entry Exhibit 76. That apart, that entry in the name of defendant No. 1 had been made on the basis of sale deed Exhibit 74. There is no dispute about the recitals in the sale deed Exhibit 74 as to possession, but for the reasons stated earlier, that is not the correct factual position. Therefore, Exhibit 76 is of no relevance, much less it could be of any assistance to substantiate the claim of defendant No. 1. Therefore, as to factum of possession, I do not find that any error has been committed by the courts below. The findings recorded by the Appellate Court is neither perverse nor it was result of ignoring the relevant material evidence on record. As such, no interference in that regard is permissible for the High Court in this second appeal.
27. Having found the finding of fact as to possession in favour of plaintiffs correct, I shall now consider the corresponding controversial issue as to title acquired by adverse possession. I have already said that the parties have made rival claims even as to adverse possession. That is to say, plaintiffs, on their side, have come up with the case that they have acquired title by adverse possession and defendants have claimed to have become owner of the suit plot by adverse possession. In this context, the findings of fact that plaintiffs were in possession of the suit plot when the suit was filled and that, during pendency of the suit, they were dispossessed by defendants, assumes very much relevance. That is relevant for considering the rival claim of adverse possession set up by the plaintiffs as well as defendants. In this context, it is borne in mind that originally the title in the suit property was that of father of the plaintiffs. After his death in the year 1965, plaintiffs inherited the said property and as such, they have become owner of the same. In the meantime, intervening factor came and that is of the sale deed Exhibit 74, admittedly to have been executed by deceased Bhagwan in favour of defendant No. 1 in the year 1950. In that also, admitted position is that defendant No. 1 did not get title in respect of the suit land, valid in the eye of law, despite the sale deed Exhibit 74. That position is not disputed by the appellant. That position is also accepted by the courts below. Therefore, in this background, factual position that plaintiffs continued possession even after the sale deed Exhibit 74 till they filed the suit is relevant and that possession of plaintiffs vis a vis the suit plot is certainly referable to the legal and valid title. If that is so, in my opinion, though plaintiffs have claimed possession on the basis of that, they have acquired title by adverse possession is itself misnomer.
28. They are, in fact, entitled to possession on the basis of their legal and valid title. They have, initially, filed a suit for declaration and permanent injunction. That relief was sought for on the basis that they were in possession at the time when suit was filed. As stated earlier, there is concurrent finding by the courts below that plaintiffs were in possession when the suit was filed. However, their possession was obstructed by defendant No. 2 for the first time in the year 1979 after he purchased the suit plot by sale deed. During pendency of the suit, defendant No. 1 dispossessed plaintiffs, after plaintiffs' application for temporary injunction was rejected. This fact is also established on evidence and the courts below have given concurrent finding on that issue and this Court has found that the courts below were right in recording that finding in the affirmative. If that is so, plaintiffs claim for possession brought out by amending the plaint after the incident of their dispossession by defendants was tenable. It is certainly within time. Had there been a finding on evidence that defendants were in possession for over 12 years prior to filing of the suit, plaintiff's claim for possession would have been barred by limitation. That is why, the Appellate Court, as also, the trial Court gave a concurrent finding that plaintiffs are entitled to possession as they have earned title by adverse possession. It is in this sense that it is observed that concurrent finding that plaintiffs were in possession when the suit was filed and that, defendant No. 2 dispossessed them during pendency of the suit, is very relevant to grant relief of possession to the plaintiffs. Therefore, the courts below were right in granting relief of possession to the plaintiffs.
29. Much has been made by the learned Counsel for the appellant that plaintiffs have not specifically pleaded regarding their claim on the basis of adverse possession nor plaintiffs have established ouster of defendant No. 1 by exhibiting hostile title as against defendant No. 1. I do not think that there is any substance in these contentions. It is true that, in case a plea of adverse possession is raised, the person has to set up hostile title as against the true owner and mere long standing possession by itself will not be sufficient to hold that the person has earned title by adverse possession. In the case before hand, both the courts below have given concurrent finding that plaintiffs were in possession inspite of the deed Exhibit 74 executed in favour of defendant No. 1. Not only that, plaintiffs' possession continued till they filed the suit. It is also established on evidence that, for the first time, in the year 1979, defendant caused obstruction to peaceful possession of plaintiffs. It is a matter of record that plaintiffs asserted his right of possession by making report to the police when his possession was threatened by defendants. It is also very significant to note that plaintiffs' name came to be recorded in the Gram Panchayat record as owner in possession of the suit plot. Plaintiffs have paid property tax from time to time in respect of the sale deed Exhibit 74. There is also a fact finding by the courts below that defendant No. 1 was not in possession of the suit plot at any point of time, much less on the date when the sale deed was executed and when the suit was filed. The trial Court has rightly observed that with the ouster of plaintiffs from the suit plot in the year 1980 by defendant No. 2, as evidenced by his report and complaint for the offence under section 498 of the Indian Penal Code and consequent seizure of the material from the plot belonging to plaintiffs, positively indicated that possession was that of plaintiffs. As against that, defendant No. 1 did nothing to exert his right acquired under the sale deed Exhibit 74 since the year 1950. It is clinchingly borne out from the evidence on record that it was, for the first time, in the year 1979 that defendant No. 1 caused obstruction to plaintiffs' possession and for that, plaintiffs lodged report. Defendant No. 1 also got his name recorded in the Gram Panchayat on the basis of the sale deed Exhibit 74 for the first time in the year 1979. Even accepting the inquiry report vide Exhibit 76, the name of defendant No. 1 is recorded in the year 1969 on the basis of the inquiry made by the surveyor and as per the sale deed Exhibit 74. The courts below have rightly observed that payment of tax by defendant No. 1 at a stretch vide Exhibit 79 for the first time in 1979, after the suit plot was sold to defendant No. 2, was itself indication that defendant No. 1, at that time only, made an attempt to exert his right of ownership. Therefore, defendant No. 1, in the first place, failed to prove that he got possession of the suit plot under the sale deed Exhibit 74 and further his possession continued till the date of filing of the suit by plaintiffs. That apart, defendant No. 1 failed to established that he, at any point of time right from 1950, exhibited his hostile title over the suit plot as against plaintiffs by doing any positive act. That is why, both the courts have rightly held that defendant No. 1 has failed to establish that he acquired title by adverse possession. I have already stated that the very fact that as defendant No. 1 failed to establish his possession, at any point of time since the year 1950, his claim for adverse possession falls to the ground.
30. As against that, plaintiff were in possession of the suit plot in spite of sale deed Exhibit 74 and that possession continued till the date of filing of the suit and till they were dispossessed by defendant new during pendency of the suit. In addition to that, plaintiffs, by their conduct, exhibited their hostile title as against defendants and to their knowledge also. So far as defendant No. 1 is concerned, who was very much in the same village, connived at plaintiffs' possession over the suit plot in spite of there being sale deed in his favour executed by plaintiffs' father. He only caused obstruction in the year 1979. So, for the period of almost 29 years, plaintiff enjoyed possession without there being any obstruction by the defendants. In addition to that, by making payment of tax from time to time, plaintiffs have asserted their ownership as well as possession vis a vis the suit plot. This position continued till the year 1984. Even in the year 1979, when there was an attempt on the part of defendant No. 1 to oust plaintiff, that was thwarted by making report to police and plaintiffs with all vigilance at their command, rushed to the Court seeking declaration and permanent injunction. Therefore, plaintiffs have also established their claim for adverse possession.
31. It is very pertinent to note that, in spit of sale deed Exh. 74, no valid and legal title passed in favour of defendant No. 1. Corollary of this is that, plaintiffs' father Bhagwan and after his death, plaintiffs continued to be the legal owner of the suit plot. In this legal position, it was for defendant No. 1 to establish title by adverse possession against the plaintiffs, who are true owners of the property. Therefore, on the basis of long standing possession, plaintiffs are entitled to get possession of the suit plot as defendant No. 1 has failed to establish his adverse possession vis a vis the suit plot for over 12 years before filing the suit. It goes without saying that defendant No. 2 did not get any valid title inspite of sale deed being executed in his favour by defendant No. 1. The courts below have rightly rejected his contentions.
32. In the result, I do not find that there is any case for interference with the judgment and decree passed by the courts below. The appeal merits no consideration at all. The appeal is, therefore, dismissed with no order as to costs.