| SooperKanoon Citation | sooperkanoon.com/139888 |
| Subject | ;Tenancy |
| Court | Guwahati High Court |
| Decided On | Nov-29-2006 |
| Judge | H.N. Sarma, J. |
| Appellant | Samsul HussaIn and ors. |
| Respondent | Abdul Wahid and ors. |
| Disposition | Appeal allowed |
H.N. Sarma, J.
1. The predecessor in interest of the appellants Mafazul Hussain filed Title Suit No. 11/82 in the Court of the learned Munsiff (as it then was) at Jorhat, against the defendants praying for their ejectment from the suit land and khas possession with recovery of the arrears of rent and compensation.
2. During the course of legal proceeding the original plaintiff having expired, the present appellants were substituted. Similarly the original respondent/defendant No. 7 died without leaving any legal heir, but the suit proceeded against the surviving defendants.
3. The appellants as plaintiffs instituted the suit asserting that the suit land measuring 1 K. 18 L covered by Dag No. 282, PP No. 43 of village Tiruwalgaon, Mouza-Nakachari, more specifically described in Schedule A to the plaint belongs to the appellants. The predecessor in interest of the defendants took the suit land on lease and constructed temporary houses thereon by paying monthly rent of Rs. 5.00 per month and the tenancy was according to the English Calendar months commencing from the first day of the month ending with the last day of the month. The defendants did not pay the monthly rent to the plaintiffs regularly, rather they preferred to pay 3 or 4 months' rent together or for longer period at a time, in spite of objection of the plaintiffs to that effect. Although there was a stipulation in the lease agreement that the defendants would vacate the suit land as and when demanded. On the expansion of the family of the plaintiffs requiring the suit land for use of their own use occupation when the defendants are asked to vacate the suit land, the defendants though promised to do so, they never vacated the suit land instead they stopped payment of the monthly rent from the month of January, 1981. Plaintiffs sent a letter dated 02.11.81 through their advocate terminating the tenancy on 31.12.1981 and demanded the defendants to deliver the vacant possession of the suit land to the plaintiffs. The said notice was replied by the defendants through their Advocates denying to vacate the suit land asserting their right to stay therein. The appellants further pleaded that the defendants have no right to stay in the suit land for all time to come and they are defaulters in payment of monthly rents since January, 1981. On the aforesaid allegations, the plaintiffs instituted the suit for ejectment of the defendants from the suit land and for khas possession and recovery of arrear of rents amounting to Rs. 60.00 and also for compensation.
4. The defendants resisted the claims of the plaintiffs by filing written statements denying the allegations made in the plaint. Apart from taking the usual defence plea, the defendants also pleaded that they are in peaceful possession of the suit land for more than 50 years and are lawfully authorized to possess the same without any hindrance and they had acquired/inherited unassailable right over the suit land by operation of law to remain in possession thereof and such rights cannot be questioned by the plaintiffs. Except the aforesaid pleadings, the defendants have not denied the other contentions made in the plaint.
5. The suit having been dismissed (sic decreed) by the learned Trial Court on 25.11.83, an appeal was preferred and the learned Appellate Court remanded the matter vide Judgment and Order dated 12.01.89 with the direction to decide afresh by framing an additional issue regarding title of the suit land and by giving liberty to adduce necessary evidence on remand, filed an additional written statement and DW-1 was also re-examined. In the additional written statement the defendants denied the title of the plaintiffs over the suit land pleading, inter alia, that when the plaintiffs have been out of possession and the defendants have been continuing their ownership over the suit land for a period exceeding the statutory period without admitting the title of the plaintiffs, if any, has extinguished and the defendants acquired title by way of adverse possession. The defendants also denied the taking of the suit land on lease from the plaintiffs and also denied payment of any rent.
6. The learned Trial Court proceeded to hear the suit ultimately by framing the following issues:
1) Whether there is cause of action for this suit?
2) Is the suit maintainable?
3) Has the Court jurisdiction to try this suit?
4) Whether the suit is barred by limitation? If it is barred law relating to tenancy and for possession? Are the defendants entitled to remain in possession in the suit land by virtue of their right?
5) Whether the defendants are joint tenant under the plaintiff in respect of the suit land?
6) Whether the plaintiff is entitled to a decree for khas possession?
7) Is the plaintiff entitled to a decree for arrear of rent against the defendants as prayed for?
8) Whether the plaintiff is entitled to compensation and future compensation as prayed for?
9) What relief or reliefs the parties are entitled to?
Additional Issue:
10. Whether the plaintiff has right, title and interest over the suit land?
7. During the course of trial, the plaintiffs examined three witnesses and exhibited several documents in support of their case. The defendants also examined four witnesses.
8. On conclusion of the trial, the learned Trial Court vide Judgment and Decree dated 31.08.89 decreed the suit of the plaintiff, against which Title Appeal No. 70/89 was filed by the defendants in the Court of the learned Civil Judge (Senior Division), Jorhat. The learned first Appellate Court vide impugned Judgment and Order reversed the decree and dismissed the suit of the plaintiffs, against which this Second Appeal has been filed.
9. The following substantial question was framed for disposal of the Second Appeal, as agreed to by the parties.
Whether the learned first Appellate Court was right in law in reversing the judgment of the learned Trial Court holding that there was adverse possession in favour of the defendants/respondents on the basis of the proved facts?
10. I have heard Mr. D.C. Mahanta, learned Senior counsel for the plaintiffs and Mr. A.K. Goswami, learned senior counsel for the defendants. I have also perused the materials available on records.
11. The learned first Appellate Court in deciding the first point framed for decision of the appeal, i.e., 'Whether the plaintiff was the original owner of the suit land', perused and scrutinized Ext-1, which is a certified copy of the Zamabandi of the suit land containing the relevant Dag, Ext-1(1). The first Appellate Court further considered the revenue paying receipts, Ext.-2, 3 and 4. Considering the title of the suit land, the learned first Appellate Court held that from Exts. 1, 2, 3 and 4, it is seen that the suit land originally belonged to the plaintiff Mafazul Hussain (since deceased) as per the land records. The learned Trial Court in deciding the additional Issue No. 10, on examination of the aforesaid exhibits and considering the statements of DW-1 and unchallenged position of the aforesaid exhibits, indicated that the plaintiffs have right, title and interest over the suit land. Although, the learned first Appellate Court did not render any concrete decision as to whether the plaintiffs has any right, title and interest over the suit land from the proved facts, more particularly, exhibits referred to above and the unchallenged statements of PWs, it can safely be held from those findings that the plaintiff has right, title and interest over the suit land, which is also not under challenge in this appeal.
12. In the light of the aforesaid finding of fact that the plaintiffs have right, title and interest over the suit land; it is now to be examined as to whether the suit land was allowed to occupy by the defendants as tenants and also to examine the counter plea of adverse possession raised by the defendants.
13. The plaintiff alleges in the plaint that the suit land was taken on monthly rent by the defendants at the rate of Rs. 5.00 per month on oral agreement. The said arrangement of tenancy, though ribt was denied in the original written statement, has been subsequently denied by the defendants in their additional written statements submitted after remand of the case by the first Appellate Court. In Title Appeal No. 11/83, it was held by the learned Appellate Court that it appears nowhere in the evidence on record that there was any attempt of the defendants to achieve title to the suit land. Thus framing of such an issue and decision in it felt by the first Appellate Court to be unavoidable. In the light of such finding the said appeal was remanded back to the learned Trial Court by passing the following order:
In the light of the above discussions, the suit is remanded to the learned Lower Court to frame an issue regarding the title to the suit land and if necessary to record the evidence of that issue and to give a fresh judgment in the light of discussions above after hearing fresh argument of both sides.
14. After remand of the case, the learned Trial Court framed the additional Issue No. 10 regarding the title of the suit land and the defendants having prayed vide application No. 602 on 10.03.89 for allowing to file additional written statements, the same was allowed and consequently the defendants filed the additional written statements on 29.03.89, for decision on the additional Issue No. 10 relating to title, so framed.
15. The defendants by filing the additional written statements on 29.03.89, in fact, made substantial change of the stand that was taken in their earlier pleadings vide written statement filed on 10.06.92 on the basis of which the issues except the additional Issue No. 10 was (sic) framed and the parties led their evidence, in the suit. But the defendants before changing the stand taken in the original pleading have not prayed for any amendment of the earlier written statement nor any such order was passed by the learned Trial Court allowing to amend the written statements. The additional written statement was required to be confined only to the additional Issue No. 10, i.e. relating to the title of the suit land. The said written statement for all intents and purposes, is to be used only for the purpose of deciding the issue relating to title over the suit land as per the additional Issue No. 10 framed only after remand. On the garb of filing of additional written statement, the defendants can not be permitted to restructure their defence plea taking different stand from what was pleaded in their original written statement. Accordingly, the basis of claim of the defendants is to be scrutinized from the stand points of defence taken vide original written statement dated 10.06.92, for other issues and for the issue relating to title, the additional written statement. The additional written statement cannot be permitted to be superseded, the stand taken in the original written statement and no amount of evidence on the plea not pleaded in the original written statement relating to other vital issues framed for decision of the case can be looked into. This is on the basis of the principle of law that the pleadings are the foundation and parties are not be permitted to propound a new case not so plead (Ref: AIR (1987) 3 SCC 711). No amount of evidence can be looked into upon the plea which never put forwarded by a party and decision of a case should not be based outside the pleadings nor the Court can make out a new case not pleaded by the parties (Ref: AIR (1930) PC 57, AIR (1942) PC 64 and AIR (1977) SC 890.
16. Viewed from the above angle, it now requires to be examined whether the defendants have been successful in establishing the plea of adverse possession. It is no doubt true that the question relating to adverse possession is a mixed question of law and facts. But when in arriving at the aforesaid finding, the learned Courts below acted perversely giving a total go-bye, to the established principle of law which is writ large on the face of records and on the basis of such finding a decision is arrived at, interference is called for by the higher Court and Section 100, CPC, does not stand on the way of the High Court to interfere in such events.
17. With regard to the plea of adverse possession, the following decisions were cited at the Bar.
1. (1990) 2 GLR (NOC) 44, (On the death of sole appellant Sarat Chandra Bora, his legal heirs - Shri Padum Ch. Bora and Ors. v. Nityananda Bora).
2. : (2000)5SCC652 , (State of Rajasthan v. Harphool Singh (Dead) through his Lrs).
3. : (2001)9SCC385 , (Bhura Mogiya and Ors. v. Satish Pagariya and Ors.)
4. : [2002]1SCR651 , (Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh)
5. 2002(2) GLT 684, Prasanna Kr. Barman v. Debendra Nath Barman
6. : AIR2003SC3907 , (Deva (Dead) through Lrs. v. Sajjan Kumar (Dead) by Lrs).
7. 2003(2) GLT 213, (Ashok Pradhan and Ors. v. Apurba Ram Barooah)
8. : (2004)1SCC551 , (V. Rajeswari (Smt.) v. TC Saravanabava
9. 2004 (Suppl) GLT 439, (Abdul Kasem Lrs of Mustt. Basiram Bewa and Ors. v. Asmat Ali @ Hadmat Ali and Ors).
10. : (2004)10SCC779 , (Karnataka Board of Wakf v. Government of India and Ors).
18. In order to decide the appeal, the learned first Appellate Court formulated the following three points for decision of the appeal-
1. Whether the plaintiff was the original owner of the suit land?
2. Whether the defendants were lessee under the plaintiff?
3. Whether the defendants acquired the right over the suit land by way of adverse possession?
19. The learned first Appellate Court in considering the aforesaid first point so formulated, though taken note of the Ext. 1, which is the certified copy of the Jamabandi containing therein, relevant Dag of the suit land and Exts-2, 3 and 4, the relevant land revenue paying receipts by the plaintiffs including the evidence adduced by the parties, has not expressed specifically regarding title of the plaintiffs over the suit land. On the aforesaid points already an additional Issue No. 10 was framed in the suit; the learned Trial Court while deciding the said issue the aforesaid documentary evidence as well as take note of the unchallenged oral evidence of the plaintiffs' witnesses were considered and answered the said issue in favour of the plaintiffs. The learned Appellate Court neither confirmed the said finding of the Trial Court nor has reversed the same. In this Second Appeal the learned Counsel for the defendants has not also challenged the title of the plaintiffs over the suit land. On the basis of the materials available on record pertaining to the title of the suit land as noted above, it can safely be held that the plaintiffs are the owners of the suit land having right, title and interest over it.
20. The other two points formulated by the learned first Appellate Court boils down to the core issue relating to adverse possession to be decided in this appeal in the light of the substantial question so framed.
21. Before dealing with the question involved in this appeal regarding adverse possession, let us see what actually the possession implies. The possession of a thing by a person amounts to physical control of that thing which may be independent of having any title. Such possession may be illegal or legal, i.e., authorized or unauthorized. Possession involves two facts- a claim of exclusive user and conscious or actual exercise of the claim and the other is physical control over it. The former is mental element commonly known as animus possidendi and the later is known as corpus possessionis. The possession may again be defector dejure.
The animus possidendi implies intention to appropriate to one self, the exclusive use and enjoyment of a thing possessed. It is the conscious intention of the possessor to exclude others from interfering with his right of possession. Such animus or desire to possess must necessarily be rightful and it also extends to conscious wrongful possession. Further the possessor must have exclusive claim Over the thing in his possession, which means that he must intends to exclude others from use and enjoyment of the thing under his possession.
22. The ownership over a property necessarily implies possession or right to posses. But so far as it relates to adverse possession over land, which tantamount to loss of effective control over the land by the real owner after lapse of certain statutory period under the law of Limitation, such possession should consist overt acts which are inconsistent with the title of the owner. In order to constitute adverse possession against the true owner, the higher degree of proof of the element of adverse possession is needed, on the principle that the Courts have always been reluctant to allow an encroacher or squatter to acquire a good title to land against the true owner.
23. Remedies to perfect possessory rights are available for the reasons that-(a) the evils of violent self-help are deemed so serious that it must be discouraged by taking away all advantages which any one derives from it, (b) the procedure by which an owner is required to undertake recovery, his property was considered to be cumbrous, dilatory and inefficient, on the other hand, possession is the nine points of law and (c) the third reason for possessory remedies is the difficulty of the proof of ownership. Prior possession is a prima facie proof of title but a party is entitled to rebut this presumption by proving the better title upon him. Moreover, the possession of a person or right to possess cannot be disputed alleging better title upon a third party (Ref: Salmond on Jurisprudence, Twelfth Edition).
24. The basis of right including adverse possession, came to be considered by the Apex Court in the case of Karnataka Board of Wakf v. Government of India : (2004)10SCC779 , wherein, inter alia, held as follows:
In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nee vi, nee clam, nee precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma.)
25. Again in the case of Konda Lakshman Bapuji v. Government of Andhra Pradesh reported in : [2002]1SCR651 , the Apex Court has, inter alia, held that mere possession of the land, however, long it may be, would not ripe into possessory title unless the possessor has 'animus possidendi', to hold the land adverse to the title of the true owner and the assertion of title to the land in dispute by the possessor must be clear and unequivocal and where at the commencement of the possession there is no 'animus possidendi', the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist.
26. Further in the case of Mahavir and Anr. v. Rural Institute, Amravati and Anr. reported in : (1995)5SCC335 , the Apex Court rejected the plea of adverse possession of the defendants holding, inter alia, that no question of adverse possession arises unless it is pleaded and proved that after the possession was taken and handed over to the third respondent. The plaintiffs have asserted their own right to the knowledge of the third respondent and it had acquired in it and remained in an uninterrupted possession and enjoyment nec vi nec clam nee precario. On that count the Apex Court rejected the plea of acquisition of right by prescription.
27. In Saroop Singh v. Banto and Ors. reported in : AIR2005SC4407 , the Apex Court again held that in that case the plaintiffs/respondents having proved their title it was for the first defendant to prove acquisition of title by adverse possession and the first defendant did not raise any plea of adverse possession and in that view of the matter the suit was not held to be barred under Section 64 or 65 of the Limitation Act. It was further held that in terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs but commences from the date when the defendant's possession becomes adverse.
28. In a recently pronounced judgment reported in (2006) 7 SCC 570, T. Anjanappa and Ors. v. Somalingappa and Anr., the Apex Court restated the concept of adverse possession as follows:
The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile on the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses in otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it. When a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.
29. If the plea of adverse possession is taken as an aid in defending a suit for eviction or declaration of title, the defendant must specifically plead such a plea and must prove the same according to the pleading by adducing clear and cogent evidence.
30. In the case of B. Leelavathi v. Honnamma reported in : (2005)11SCC115 , the Apex Court at paragraph-11 of the judgment held as follows:
Plea of adverse possession had been taken vaguely in the plaint. No categorical stand on this point was taken in the plaint. No issue had been framed and seemingly the same was not insisted upon by the plaintiff-respondent. Adverse possession is a question of fact which has to be specifically pleaded and proved. No evidence was adduced by the plaintiff-respondent with regard to adverse possession. Honnamma, the plaintiff in her own statement did not say that she is in adverse possession of the suit property. We fail to understand as to how the High Court, in the absence of any plea of adverse possession, framing of an issue and evidence led on the point, could hold that the plaintiff-respondent had perfected her title by way of adverse possession.
30. (i) So also in the case of V. Rajeshwary (Smt) v. TC Saravanabana reported in : (2004)1SCC551 , the Chief Justice, Lahoti, speaking for the Court at paragraph 17 as follows:
So is the case with the plea as to adverse possession over the suit property taken by the, defendant in his written statement. The plea has been held not substantiated and rightly so. The plea is too vague. Earlier the defendant, claiming himself to be an adopted son of one of the predecessors-in-title of the plaintiff, had filed a suit for partition claiming half a share therein. Thus, he was canvassing his claim as a co-owner in possession. How and at what point of time he started prescribing hostile title, was for him to plead and prove, which he has utterly failed in doing. The plea of adverse possession raised by the defendant is devoid of any merit and cannot be countenanced.
30. (ii) Similar view was expressed by the Apex Court in the case of Meethiyan Sidhique v. Muhammed Kunju Pareeth Kutty and Ors. reported in : [1996]1SCR11 . the Apex Court at paragraph 12 has held:
It is, therefore, clear from the above facts that unless there is a specific plea and proof that the appellant has disclaimed his right and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the latter acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. The High Court has taken the fact that there is neither a plea nor proof in this behalf. We cannot find any infirmity in this finding. Under these circumstances, the finding that the appellant has perfected his title by prescription is clearly illegal. In this case we are concerned only with the validity of the sale in respect of the share of the respondent-plaintiff and not of the share of the mother.
30. (iii) In the State of Rajasthan v. Harphool Singh (Supra), the Apex Court has held as follows:
So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. LL Lakshmi Reddy adverted to the ordinary classical requirement- that it should be nec vi, nec clam, nec precario- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy. of State for India in Council v. Debendra Lal Khan strongly relied on for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil v. Balwant it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts.
The Apex Court in the said case further held that the High Court without even cursory scrutiny of the legality and propriety of the findings in order to ascertain any least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of 'adverse possession' stood substantiated, mechanically seems to have accorded its approval to the claim of title made by the plaintiff merely on the basis that both the Courts below have found the plaintiff to be the owner of the property and having perfected his title by adverse possession and upon consideration on the basis of the principle of adverse possession dismissed the suit by allowing the appeal.
31. Again the Apex Court in the case of Deva (Dead) through Lrs. v. Sajjan Kumar (Dead) by Lrs. reported in : AIR2003SC3907 , considering the fact that on admission of the defendant that he came to know the alleged encroachment of the suit land only on the institution of the suit negated the claim of having prescribed title by adverse possession from the year 1940 in the absence of animus to hold the land adversely against the title of true owner which would be said to have started only when the defendant derived knowledge of possession over the suit land has been alleged to be an act of encroachment.
32. The pleaded case of the plaintiffs/appellants is that the respondents/defendants entered the suit land as monthly tenant according to English Calendar. In their written statements, the defendants/respondents did not deny the claim of the plaintiffs. But no specific plea of adverse possession stating necessary facts to constitute such possession as required under the law as discernible from what has been discussed above have been pleaded. As stated above, the defendants cannot be permitted to take the advantage of the statements made in the additional written statements in the absence of any amendment of their original written statements relating to the related defence pleas, other than that of the title. The respondents/defendants though denied the claim of tenancy by way of oral agreement, has not disclosed as to how and in what manner and from which date they came into possession of the suit land. The title to suit property has been found to be in favour of the plaintiffs/appellants. PW-1 Mafahul Hussain (since deceased) has specifically stated that the defendants were entered the suit land as tenant. The said fact was also corroborated by PW-2 who stated, inter alia, that Abdul Aziz, predecessor-in-interest of the respondents/defendant, started a grocery shop by taking the land on rent from the plaintiffs/appellants about 10/12 years ago. This fact was also further proved by PW-3. As against these none of the respondent/defendants produced themselves as witnesses. DW-1 who is another son of Md. Abdul Aziz in his cross-examination specifically stated that he does not know who is the owner of the suit land. After remand of the case to decide the issue regarding the title this DW-1 was further examined who also could not state anything as to how they are entitled to get the suit land as owner. In the light of the evidence available on records, the plea set up by the plaintiffs has got more probative value and the preponderance of probability is in their favour.
That apart, the defendants neither pleaded nor proved the necessary ingredients of adverse possession in the suit. The learned Appellate Court without addressing itself to the basic requirements of the pleadings and the basic requirement that is necessary to be pleaded in such case and without having any proof of such plea in the suit has wrongly held that the respondents/defendants to be in adverse possession of the suit land. The learned appellate Court also misdirected itself in putting the burden of proof upon the plaintiffs/appellants that they were in possession of the suit land within 12 years when the respondents/defendants have failed to prove that their possession is 'adverse' to the plaintiffs/appellants. The learned appellate Court also failed to take note that the respondents/defendants did not know who was the owner of the suit land and the fact of such lack of knowledge of ownership of the suit land negated their animus possidendi over the suit land. Thus, the learned Appellate Court reversed the finding of the learned Trial Court on a wrong test of adverse possession mechanically, without applying the necessary legal principles reversed the decree passed by the learned Trial Court.
33. In view of the aforesaid discussions I answer the substantial question of law so framed in this appeal in negative and against the defendants/respondents and consequently, the appeal stands allowed and the impugned judgment and decree dated 15.02.99 passed by the learned first Appellant Court in Title Appeal No. 17/89 stands reversed and the judgment and decree passed by the learned Trial Court in Title Suit No. 11/82 stands restored.
No costs.