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GULSHAN KUMAR versus JAGDISH CHANDRA MAKKAD & TOHERS

High Court of Judicature at Allahabad

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Gulshan Kumar v. Jagdish Chandra Makkad & Tohers - SECOND APPEAL No. - 1011 of 2007 [2007] RD-AH 16429 (8 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 1011 of 2007

Gulshan Kumar Vs. Jagdish Chandra Makkad and others

~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge (Court No.10) Aligarh by which the Civil Appeal, that had been filed by the plaintiff, was dismissed.

The Original Suit had been filed for a declaration that the plaintiff was the owner in possession of the property on the basis of adverse possession and injunction was also claimed that he may not be dispossessed by the defendants by using force. It was alleged in the plaint that the disputed property was given to the family of the plaintiff by the local administration and custodian about 43 years back and the plaintiff had made alterations and constructions. It was stated that the defendant Ist set namely, Jagdish Chandra Makkad and the defendants IInd set, namely, State of U.P., Nagar Palika, Aligarh and Public Works Department were trying to oust the plaintiff from the aforesaid property.

A written-statement was filed by defendant No.1 Jagdish Chandra Makkad as well as by defendant No.3 Nagar Palika. In the written-statement filed on behalf of the Nagar Palika, Aligarh it was stated that the plaintiff was not the owner or landlord of the premises in question and nor was he in possession of the property at the time of the partition. It was also stated that defendant Ist set had also no concern with the property in question. It was asserted that the property in question was part of the road belonging to the Municipal Board, Aligarh and the plaintiff's father Buda Mal some times in the year 1949 occupied the said land without any right, title or interest and illegally raised temporary constructions without the permission of the Municipal Board. The plaintiff's father was, however, permitted to occupy the said land as a tenant but as he committed default, his lease was determined through registered notice dated 31.1.1996. Thereafter Suit No. 198 of 1967 was filed in the Court of Munsif, Koil for ejectment which was decreed on 2.8.1969. The Court directed the plaintiff's father to deliver possession of the premises after removing the "malva". Civil Appeal No. 215 of 1969 filed by the plaintiff's father was dismissed and Execution Case No. 47 of 1993 (Nagar Palika Vs. Buda Mal) is now pending. It was, therefore, stated that the suit was barred by the principles of Res-Judicata.

The Trial Court dismissed the Original Suit and the Civil Appeal filed by the plaintiff was also dismissed.

Learned counsel for the appellant submitted that the plaintiff had matured his right, title and interest over the property by adverse possession as the Nagar Palika, Aligarh had full knowledge regarding the possession of the plaintiff for the last more than 43 years but did not raise any objection. He further submitted that the decree passed in Original Suit No. 198 of 1967 should be deemed to have been waived by the Nagar Palika as the plaintiff was allowed to remain in possession and was also permitted to pay taxes.

The contention of the learned counsel for the appellant cannot be accepted.

The Supreme Court has repeatedly held that mere possession howsoever long does not necessarily mean that it is adverse to the true owner and that person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title. In this connection reference may be made to the decision of the Supreme Court in the case of T. Anjanappa (supra) where the Supreme Court observed:-

"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. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to 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.

It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 the Supreme Court observed:-

"It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners."

In Annasaheb Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543 the Supreme Court observed:-

"...Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed....

Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One, who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had not title at all."

In Madhav Krishna (supra) the Supreme Court observed:-

"The doctrine of adverse possession would arise only when the party has set up his own adverse title disclaiming the title of the plaintiff and established that he remained exclusively in possession to the knowledge of the appellant's title hostile to their title and that the appellant had acquiesced to the same. Since there is no plea that he had claimed any hostile title against Mansaram, the owner of the property, the earlier decree operates as res judicata. The present suit was filed within 12 years from the date of the demise of Mansaram; hence, it was obvious that no adverse possession has been perfected against the appellant."

In the present case, the Municipal Board, Aligarh had filed a suit against the plaintiff's father for ejectment which was decreed and the Civil Appeal filed by the plaintiff's father was also dismissed. The Execution Case is pending disposal. In this view of the matter, it cannot be said that the possession of the plaintiff was hostile to the real owner and amounted to denial of its title. The contention of the plaintiff that he was in uninterrupted possession for the last 43 years and, therefore, had perfected his title for adverse possession, cannot be accepted.

In view of the aforesaid, there is no merit in this Second Appeal and it is, accordingly, dismissed at the admission stage.

Dt/-8.10.2007

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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