LawyerServices Judgment - Abdul Jahagir Mohd. Hanif v/s Shagirabai w/o Sk. Habib

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Court Case No Date of Judgment
In the High Court of Bombay at Nagpur SECOND APPEAL NO.83 OF 2010 08-03-2010
Judge(s)
THE HONOURABLE JUSTICE F.M. REIS
Parties
Abdul Jahagir Mohd. Hanif v/s Shagirabai w/o Sk. Habib
Advocate(s)
Miss H.N. Jaipurkar, Advocate for the appellant.
Equivalent Citation(s)
2010 (4) ALL MR 786
2010 (5) MAH.L.J 726
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judgement - ORAL ORDERThis second appeal challenges the judgment and decree dated 15/12/2009 passed by the learned Principal District Judge Amravati in regular civil appeal No.181 of 2006 whereby the appeal preferred by the appellant challenging the judgment and decree dated 12/9/2006 passed by the Civil Judge Senior Division Morshi came to be dismissed.2. The appellant filed a suit for declaration and permanent injunction on the ground that the property bearing Survey No.19/3-A admeasuring 0.87 R. Survey No.100/3 area 4.48 H. R. and property Survey No.24/1A having an area of 0.81 R. is in continuous possession of the appellant and before him by their predecessor namely his father from 1974 and their possession was without any obstruction and to the full knowledge of the respondent. It was his case that the sale deeds executed in the name of deceased Alishanbi was nominal and possession of the suit property was not handed over to her by her brothers Mohd. Hanif and Mohd. Raja. The said Alishanbi is the mother of the respondent and she had executed a gift deed in her favour in respect of the suit property. The suit was filed by the respondent against the deceased father and uncle of the appellant on the basis of the gift deed which came to be dismissed and an appeal preferred also came to be dismissed. It is further his case that the respondent applied for mutation on the basis of the gift deed but the mutation was taken as legal heir and not on the basis of gift deed. The Additional Commissioner has held that the claim of ownership on the basis of adverse possession is within the jurisdiction of the Civil Court and not within his jurisdiction and after issuing notice the plaintiff claiming to be in continuous possession of the suit property for more than 12 years sought for a declaration that he became owner thereof by adverse possession.3. The respondent filed her written statement denying the contentions of the appellant and claimed that the appellant had failed to specify as to when and how he had become owner by virtue of the adverse possession and he never disclosed his hostile title against the respondent and that the suit has been filed only on the basis of observations made in the order passed by the Additional Commissioner. As such it was claimed by the respondent that the suit deserves to be dismissed.4. After framing the issues and recording the evidence the learned Civil Judge dismissed the suit by judgment dated 12/9/2006. The learned Judge relied upon the judgments of the Apex Court and held that the adverse possession must be adequate in continuity in publicity and extent and a plea is required at least to show as to when the possession becomes adverse so that the starting point of limitation against the party affected can be found. The learned Judge further on going through the evidence of P.W-1 Abdul Jahagir Mohd. Hanif came to the conclusion that the appellant failed to succeed to establish his claim of adverse possession. The learned Judge further held that it was contended by the appellant in the plaint that he came into possession in the year 1974 but in the evidence it is stated that she was in possession from the year 1972. The learned Judge further held that merely because the possession of the appellant is established nevertheless that by itself is not sufficient to prove the adverse possession as the appellant had not specifically mentioned when the hostile possession started. The learned Judge further held that the possession of the appellant and his father was with the permission of the mother of the respondent and this finding has been given in the earlier proceedings in the judgment at Exh. 32 which was confirmed by the appellate Court by judgment at Exh. 33. The learned Judge further found that the pleadings were devoid of any allegation pertaining to any hostile possession on the part of the appellant and as such the ingredients which are required for claiming the adverse possession were totally absent. Consequently the learned Judge dismissed the suit filed by the appellant.5. The appellant preferred regular civil appeal No.181 of 2006 before the learned Principal District Judge Amravati and by judgment dated 15/12/2009 the appeal came to be dismissed. The learned District Judge while passing the said judgment came to the conclusion that the appellant had failed to establish that he acquired title over the suit property by adverse possession. The learned District Judge further held that in order to establish adverse possession it must be shown that the possession was adequate in publicity and in extent and that the person against whom time is running should be aware of what is happening. The learned Judge further held that adverse possession being against the interest of the true owner such possession is always hostile under a claim or colour of title which continuous for the requisite period of 12 years thereby giving an indefeasible right of possession or ownership to the possessor. The learned Judge further held that mere possession does not constitute adverse possession unless accompanied by open assertion of hostile title. On adverting to the evidence on record the learned District Judge came to the conclusion that on perusal of the plaint it is pleaded by the appellant that the suit property which includes three fields are in continuous possession of the appellant since the days of his father and that possession was without any obstruction but had also pleaded that his father Mohd. Hanif and Alishanbi who was mother of the respondent were real brother and sister and that on 12/7/1967 Mohd. Hanif and other brothers had executed a sale deed in favour of Alishanbi in respect of the suit lands. It was further contended by the appellant that the said sale deeds were purely sham and nominal and no possession of the suit land was handed over to the deceased Alishanbi and that the possession thereof was continued with the father of the appellant. The learned Judge held that these pleadings demonstrate that the appellant has disputed the title of Alishanbi and considering that the respondent is daughter of said Alishanbi naturally the appellant has specifically denied the title and ownership of the respondent over the suit property. Accordingly it has been held that a person who claimed to have acquired ownership by adverse possession has to establish that his possession is hostile to the true owner of the property and therefore the person who is claiming adverse possession cannot dispute the ownership and title of the true owner over the property in question. In view of such pleadings on the part of the appellant itself suffices that the appellant cannot claim acquisition of title over the suit lands by adverse possession. On perusal of the evidence adduced by the appellant the learned District Judge found that the appellant had never stated in his deposition that the suit property belonged to Alishanbi but claimed that his father had purchased the suit property. On perusal of the evidence of the appellant the learned Judge found that there was no iota of evidence to come to the conclusion that the possession of the appellant was adverse and/or hostile to the true owner. The learned Judge further held that though there is evidence to show that the appellant was in possession of the suit property but however there is no evidence on record to the effect that the possession was hostile to the true owner of the land. As such the appeal filed by the appellant came to be dismissed. Being aggrieved by the said judgments of the Courts below the present appeal has been preferred by the appellant.6. The learned Counsel appearing for the appellant assailed the judgments of the Courts below and submitted that both the Courts have erroneously held that the appellant has failed to establish that he was in adverse possession of the suit property. The learned Counsel further submitted that both the Courts below have found that the appellant was in possession of the suit property and this itself would suffice the requirement of law to the effect that the appellant has title over the suit property by adverse possession. The learned Counsel further submitted that the evidence on record has been wrongly interpreted by the Courts below and as such interference is called for by this Court in the present second appeal as the findings given by the Courts below to this effect are perverse.7. Having heard the learned Counsel of the appellant and on perusal of the record I find that the Courts below were justified to come to the conclusion that the pleadings of the appellant do not suffice the requirement of law to establish that the appellant had acquired title to the suit property on the basis of adverse possession. The records reveal that the appellant has disputed the ownership of Alishanbi and obviously disputed the title over the suit property by the respondent herein. To claim adverse possession the possession should be hostile to the true owner. To meet such requirement the ownership of the true owner has to be admitted and only thereafter the claim of adverse possession can be considered.8. In (2006) 7 SCC 570 in the case of T. Anjanappa & others Vs. Somalingappa & another the Apex Court has held as under:.......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 others rights 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 owners right excluded him from the enjoyment of his property. Possession to be adverse must be possession b y a person who does not acknowledge the others rights but denies them: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.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 persons title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owners title e.g. Trustees guardians bailiffs or agents. Such person cannot set up adverse possession.Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that persons title which provides that no person shall make an entry or distress or bring an action to recover any land or rent but within twelve years next after the time when the right first accrued and does away with the doctrine of adverse possession except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title.The High Court has erred in holding that even if the defendants claim adverse possession they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs the same was inconsequential. Obviously the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.....9. In (2008) 15 SCC 150 in the case of Kurella Naga Druva Vudaya Bhaskara Rao Vs. Galla Jani Kamma @ Nacharamma the Apex Court has held as under :-.......The defendant claimed that he had perfected his title by adverse possession by being in open continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence both the Courts have entered a concurrent finding that the defendant did not establish adverse possession and that mere possession for some years was not sufficient to claim adverse possession unless such possession was hostile possession denying the title of the true owner. The Courts have pointed out that if according to the defendant the plaintiff was not the true owner his possession hostile to the plaintiffs title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence the trial Court and the High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession..10. In view of the above cited judgments of the Apex Court I find that the Courts below have rightly come to the conclusion that as the appellant has failed to admit title of the respondent the question of claiming adverse possession does not arise at all. The findings in the earlier suit disclosed that the father of the appellant who is brother of deceased Alishanbi was permitted to occupy the suit property which belonged to said Alishanbi. Nothing has been deposed as to how the possession of the appellant was hostile to the true owner. Both the Courts below on minute analysis of the pleadings as well as the oral and documentary evidence on record came to the conclusion that the appellant has failed to establish his claim of ownership by adverse possession. These concurrent findings of facts which are born out from the evidence on record cannot be interfered with by this Court in a second appeal.11. In view of the above no substantial question of law arises in the present appeal and consequently the above appeal stands summarily dismissed.