Judgment:
K.K. Lahoti, J.
1. This appeal was admitted on 18-2-1992 on the following substantial question of law:
Whether in view of the facts and circumstances of the case, the finding that the respondent-plaintiff had perfected his title over the suit land by remaining in possession for more than 12 years, is legal and justified?
2. Learned Counsel for appellants assailed the judgment and decree passed by the Court below on following grounds:
(i) That the plaintiff/respondent took inconsistent pleas in the case. On one hand plaintiff took plea that the land was exchanged by the father of plaintiff Ranchor Singh with Ram Pratap Singh, the father of appellant Nos. 1 to 3 and 5 and husband of appellant No. 4 and Smt. Manu Kunwar, and simultaneously the plaintiff pleaded adverse possession on the aforesaid land. Both the pleadings were inconsistent and conflicting and on the basis of these pleadings suit ought to have been dismissed. Reliance is placed to Apex Court judgment in Karnataka Board of wakf v. Government of India and Ors. : (2004)10SCC779 and a decision of this Court in Beharilal v. Jegannath 1992 RN 81.
(ii) That the Trial Court dismissed the suit of plaintiff/respondent, but the Appellate Court erred in decreeing the suit of plaintiff/respondent on the ground of adverse possession. The approach of Lower Appellate Court was erroneous and the Lower Appellate Court had not considered this aspect.
(iii) That appellant Nos. 2 and 3 were minors when the previous litigation under Section 145 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for short) took place between the parties, so the plea of adverse possession cannot be considered against the minors and the suit of plaintiff ought to have been dismissed on this ground.
(iv) The plaintiff was required to plead and prove, when his possession became adverse to the appellants, starting point of limitation and some over act that his possession became hostile to the true owner, but in this case in absence of such pleadings and proof, the suit of plaintiff ought not to have been decreed on the ground of adverse possession. Reliance is placed to the Apex Court judgment in the case of S.M. Karim v. Mst. Bibi Sakina : [1964]6SCR780 .
3. Learned Counsel appearing for respondent submitted that the suit was rightly decreed by the Court below. Though the lands were exchanged between Ranchor Singh and Ram Pratap Singh, the predecessors of parties, but in absence of any document in this regard, the aforesaid plea could not be proved. But the fact remains that proceedings under Section 145 of Cr.PC, took place between the parties and final order under Section 145 of Cr.PC, was passed by the Sub-Divisional Magistrate (Exh. P-1) on 13-4-1970. Before this by order (Exh. P-2), dated 9-9-1969 the land in question was attached from the plaintiff and was given on Supurdgi. After the decision of Exh. P-1 on 13-4-1970 the lands were restored in possession of plaintiff on 11-5-1970. Since then aforesaid land remained in possession of plaintiff and in absence of any proceedings before any Competent Court for taking possession of the property from the plaintiff, the plaintiff acquired right, by way of adverse possession.
The appellants ought to have taken steps for declaring of their right or for possession through process of the Court. After getting possession under Section 145 of Cr.P.C., respondent was entitled to retain possession until evicted therefrom in due process of law. The appellants under Articles 64 and 65 of the Limitation Act were entitled to get the possession back within a period of 12 years. The possession of respondent was specifically adverse. The appellants on getting possession from Supurdgidar on 11-5-1970 as per Exh. P-4, after completion of period of 12 years, in absence of filing a suit for possession against the respondent, the rights of appellants in the land were extinguished and thus respondents acquired right. In this case, even in the light of the law laid down in S.M. Karim (supra), the respondent specifically denied title of appellants on 9-9-1969, when the order of attachment was passed by Sub Divisional Officer under Section 145 of Cr.P.C., and on 19-9-1969, when the land was attached, thereafter on 11-5-1970 when possession of the land was restored to the respondent, the limitation started and in absence of any suit for possession within the period of 12 years, the rights of appellants were extinguished and respondents acquired right by way of adverse possession. It is submitted that Lower Appellate Court rightly reversed the judgment of the Trial Court in which there is no error. This appeal is without merit and may be dismissed.
4. In this case, it is not in dispute that respondent No. 1 failed to prove her case in respect of exchange, but from the perusal of documents it is apparent that the plaintiff/respondent successfully proved, the fact of initiation of proceedings under Section 145, Cr.P.C., preliminary order under Section 145, Cr.P.C. and by order of attachment (Exh. P-2), dated 9-9-1969 the property was attached on 19-9-1969, and was handed over to Supurdgidar. On 13-4-1970, by order (Exh. P-1) the proceedings were decided in favour of respondent and ultimately by Annexure Exh. P-4 the possession of land was handed over to respondent No. 1.
5. Now in the light of this legal position may be examined. Sub-section (6) of Section 145 of Cr.P.C., reads thus:
145. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in a Sub-section (3).
6. In view of aforesaid provision, that after declaration of respondent No. 1 in possession over the property, the respondent was entitled to retain her possession until evicted therefrom in due process of law. Section 145 further provides that appellants were forbidded by any disturbance of possession until the respondent is evicted by due process of law. Meaning thereby that a starting point of limitation commenced from 11-5-1970 when the Sub Divisional Magistrate restored possession to respondent and appellants ought to have filed a civil suit based on their title or on previous possession, as the case may be, within a period of 12 years from 11-5-1970. In absence of this the period of limitation commenced and after a period of 12 years the appellants were not entitled to get back the possession. Section 27 of the Limitation Act specifically provides that at the determination of period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The Apex Court in similar circumstances in Balkishan v. Satyaprakash and Ors. (2001) 2 SCC 498 held that a person claiming title by adverse, possession has to prove three nee--nee vi, nec clam and nec precario. He must show that his possession is adequate in continuity in publicity and in extent. The Apex Court referred S.M. Karim (supra), held thus:
Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.
7. In this case the Trial Court found that plaintiff could not establish the fact that he got the suit land in exchange from Ram Pratap Singh and defendants being the heirs of Ram Pratap Singh have become Bhumiswami of land. The Trial Court found that proceedings under Section 145, Cr.P.C., are not binding on defendant Nos. 1 (a) to 3 as they were not party to those proceedings and they were minor at that time.
The Appellate Court found that so far as the case of respondent No. 1 in respect of exchange between Rajbahadur and Ram Pratap is concerned, in absence of any documents the aforesaid plea cannot be considered and turned down this plea. But the Appellate Court considered the fact that since 9-9-1969 the plaintiff remained in possession for more than 12 years and even if the story of exchange of land as set up by the plaintiff is disbelieved, the plaintiff's case that plaintiff was in adverse possession against the defendants and plaintiff acquired title of the land by adverse possession. In view of Section 27 and Articles 64 and 65 of the Limitation Act, 1963, in the finding recorded by Appellate Court, no infirmity is found. The Apex Court in S.M. Karim and Balkishan (supra), has settled the law and aforesaid cases are fully applicable in this case.
8. So far as the case of appellants that defendant Nos. 1 to 3 were minors when the proceedings under Section 145, Cr.P.C., took place and the finding of possession recorded by Sub Divisional Magistrate in those proceedings is not binding on them is concerned, it is apparent from the record that mother of appellants represented their cause in those proceedings. The elder brother Kamta Singh was also a party to those proceedings, the detailed order (Exh. P-1), dated 13-4-1970 reveals that party No. 2 had placed material on record in support of its case. It is apparent that interest of defendant Nos. 1 to 3 were duly taken care of by their mother and elder brother. Apart from this the defendant Nos. 1 to 3 whose age were 35, 25 and 23 years at the time of filing of suit ought to have taken recourse of law within a period of 3 years of attaining majority and if any such steps were not taken, the period of limitation which commenced on 11-7-1970 will not stop and they cannot take benefit of their minority after lapse of 3 years from the date of attaining majority. In these circumstances, this contention of appellants has also no substance.
9. So far as judgment by Apex Court in Karnataka Board of WAKF (supra), is concerned, though the plea of exchange and adverse possession both were taken by the plaintiff before the Trial Court, but as found hereinabove, the period of limitation for adverse possession commenced immediately after proceeding under Section 145, Cr.P.C., and even if the case of plaintiff in respect of exchange is disbelieved, even then after 11-7-1970 the appellants ought to have taken recourse of law for taking possession from the plaintiff. In absence of this in view of Section 27 and Articles 64 and 65 of the Limitation Act, the right of appellants, if any, were extinguished and plaintiff acquired right by way of adverse possession.
In the result, the Appellate Court has rightly decreed the suit of plaintiff/respondent in which no error is found. This appeal is without merit and is dismissed with costs. Counsel fee Rs. 1,000/- (Rupees one thousand only).