necessary to be borne in mind that the that claimant must establish
occupation of the suit property for a period of 12 years or more without
interruption of possession, to the exclusion of all persons openly and
hostile to the true owner adequate in in continuity and in publicity. It is
settled position of law that plea of adverse possession must be expressly
raised and established. Defendant has to necessarily admit that some one
else is owner of the property and further more, according to law, such
claimant must clearly plead and establish all the facts which are required to
prove adverse possession. One cannot be permitted to raise mutually
inconsistent pleas at different stages of the suit to base his claim as sharer
in ancestral property and other plea based on adverse possession. Plea as
to adverse possession and claim thereof cannot commence unless claimant
denounces his title claimed as sharer in joint family property. Defendant
no.1 in the present case never denounced his title as son of Janu or as an
brother of late Vitthal Janu Wagh nor he had admitted the ownership title
of the plaintiffs to the suit land so as to be permitted to raise a plea of
adverse possession. In my opinion, a person who is owner of the property
under registered sale deed duly executed is deemed to be lawfully in
possession so long as there is no intrusion. Nonuser
of property by owner
even for long time would not affect title of the owner unless claimant to
adverse possession has asserted hostile title in denial of title of the true
owner peacefully, openly, continuously and for a continuous period of 12
years or more. Looking to this legal position, suit for possession was
rightly decided by the Courts below.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 51 of 1999
Ganpat Janu Wagh, V Vanmala d/o Rambhau Sarap (now Vanmala
wife of Eknath Khadke),
Coram : A. P. Bhangale, J
Dated : 8th January 2014
Citation; 2014(4) MHLJ 308 Bom
1. This appeal challenges the judgment and order dated 8th
September 1998 delivered by the Additional District Judge, Khamgaon in
Regular Civil Appeal No. 47 of 1990 confirming the judgment and order
dated 30th July 1990 passed by the Civil Judge, JD, Jalgaon (Jamod),
District Buldana in Regular Civil Suit No. 50 of 1981 whereby suit of the
plaintiffs (present respondents no. 1 and 2) was decreed. In that, original
defendants no. 1 and 2 were directed to deliver possession of suit property
i.e. Gat No. 5/6, area 1.21 HR situated at village Khamkhed, residential
house situated in Ward No. 10, Jalgaon (Jamod) described in plaint
paragraph 3 to the plaintiff. It was the grievance of the plaintiffs Vanmala
and Sunanda that 1st defendant i..e Ganpat Janu without any right, title or
interest, sold gat no. 5/6 situated at Khamkhed, Tahsil Jalgaon Jamod,
District Buldana to Vasant Sakharam (original defendant no.2) vide sale
deed dated 23.2.1981 for a sum of Rs. 6500/.
Contention of the plaintiffs
was that they had immediately by notice dated 27.2.1981 (exhibit 31) had
called upon defendants to restore possession of the suit land to the
plaintiffs, but their notice remained unheeded. Thus, they had to file suit
for possession on the ground that the suit land referred to above was
exclusively owned and possessed by their grandfather
pursuant to sale
deed executed in favour of Janabai wife of Vitthal Wagh for a sum of Rs.
750/(
exhibit 32). Thus, according to plaintiffs, owner of the suit land
was Janabai (their grandmother)
under the registered sale deed and land
was in possession of their grandfather
Vitthal Janu Wagh. Mother of the
plaintiffs by name Narmada d/o Vitthal Wagh had predeceased
Vitthal
Janu Wagh in the year 1971 while Vitthal died in the year 1978 as owner
of suit land which was inherited from him by plaintiffs as only legal heirs of
deceased Vitthal. Contention on behalf of 1st defendant Ganpat Janu Wagh
was that suit land was ancestral and not selfacquired
by Vitthal or Janabai.
Defendant No.1 claimed that as exclusive owner of the suit land, he sold it
to Vasant Sakharam under sale deed dated 23.2.1981. However, this
document referred to by defendant no. 1 is not supported in evidence. In
the alternative, it was claimed by defendant no.1 that plaintiffs had only
1/4th share if they proved their title. In second alternative, defendant no.
1 claimed that he was owner of suit property by adverse possession and
was entitled to sell it to Vasant Sakharam as owner.
2. The pleadings were examined by the trial Court and the trial
Court found in favour of the plaintiffs Vanmala and Sundanda that they are
entitled to possession of the suit land as legal heirs of Vitthal who was
exclusive owner of the suit land. Thus, the trial Court disbelieved the case
of defendant no. 1 that the suit land was ancestral property or that he was
exclusively entitled to dispose of the same. The trial Court found that there
was original sale deed of the suit land at exhibit 32 which indicated that
suit land was purchased by Janabai Vitthal Wagh for a sum of Rs. 750/on
2nd February 1955. The documentary evidence produced by the plaintiffs
also consisted mutation extract (exhibit 30) in the name of Janabai dated
20th January 1956 to prove that she was absolute owner of the suit land.
The legal position that she became absolute owner of the suit land in view
of Section 14 (1) of the Hindu Succession Act was also considered by the
learned trial Judge. Thus, after Janabai's death, original and exclusive
owner of the suit land, the suit land was mutated in the name of Vitthal
Janu Wagh as legal heir of Janabai. Thus, it was Vitthal Janu Wagh who
inherited from Janabai in view of Section 15 (a) of the Hindu Succession
Act. He remained in possession of suit land till he died in 1978 and thus,
plaintiffs as legal heirs succeeded to the property (suit land) left by Vitthal.
Considering the fact that Narmada daughter of Vitthal had predeceased
Vithal in the year 1971 leaving plaintiffs Vanmala and Sunanda as only
legal heirs to inherit the suit land. Trial Court also considered crop
statement (exhibit 34) indicating possession of Vitthal. Regarding the
residential house situated at Plot No. 32 vide Sheet No. 131 in Ward No. 10
of Jalgaon Jamod, learned trial Judge considered the evidence that Nazul
extract (exhibit 33) in respect of residential house indicated that plot no.
32 was partitioned in three equal shares amongst Vitthal, Ganpat
(defendant no.1) and Rajaram (3rd brother of Vitthal and Ganpat) on the
strength of oral partition occurred in the year 1947. On the basis of extract
of Nazul record, trial Court recorded a finding that ancestral house was
partitioned in the year 1947 and 1/3rd share thereof was held by Vitthal
who was owner and was in possession of suit house.
3. Learned Advocate for the appellant contended that in view of
exhibit 33 house property mentioned in the Record of Right was shown in
the name of three brothers Vithal, Rajaram and Ganpat. According to him,
all heirs were not joined in the suit. However, considering the documents
as it is, the document itself indicated clearly that there was oral partition
between brothers Vithoba, Rajaram and Ganpat and accordingly, mutation
entries were made. The trial Court held that Vithal at the time of his death
in 1978 was in possession of suit house to the extent of 1/3rd share. That
being so, plaintiffs being classI
heirs of Vithal Janu Wagh were entitled as
owner and possessor of suit house to the extent of 1/3rd share which was
already partitioned and was in possession of Vithal pursuant to the
partition in the year 1947. Plaintiffs were thus claiming ownership and
possession of suit property which was inherited by them from their grandfather
Vithal. The relief in the suit was thus for possession from defendants
who were claiming right in respect of suit property.
4. Defendant no. 1 Ganpat (appellant herein) had also claimed
possession of suit property pleading hostility of title by means of adverse
possession. Learned trial Court appears to have negated the claim by a
wellreasoned
judgment with due regard to Section 8 of the Hindu
Succession Act that plaintiffs were entitled to succeed to the property of
Vitthal upon his death in the year 1978. That being so, 1st defendant had
no legal capacity to execute sale deed nor legal right to sell the suit land to
2nd defendant Vasant. For these reasons, the suit was rightly decreed in
favour of the plaintiffs by ordering the defendants to deliver possession of
suit property as described in plaint paragraph 3 to the plaintiffs.
5. 1st Appellate Court while dealing with appeal filed by
defendant no. 1 Ganpat Janu considered his contentions as also family tree
pleaded in the case and found that the plaintiffs were exclusive owner of
the suit field and inherited the suit field and the house which was in
possession of Vitthal while negating the claim of defendant no. 1 Ganpat in
the appeal that he had perfected hostile title by virtue of principle of
adverse possession. The appeal was found without merit and was
dismissed by impugned judgment and order by 1st appellate Judge.
6. Thus,we find that there are concurrent judgments recorded
against appellant herein. Original defendant no. 2 Vasant Sakharam Dobe
did not choose to question validity and legality of judgments of trial Court
and the 1st Appellate Court in High Court.
7. According to learned counsel for appellant, the decree passed
by the trial Court was limited to property described in plaint paragraph 3.
He invited my attention to exhibit 33 in the evidence which would indicate
that Vithal was in possession of suit house to the extent of 1/3rd share in
the ancestral house property pursuant to oral partition which took place in
the year 1947. The plaintiffs were not claiming any relief beyond 1/3rd
share possessed by Vithal at the time of his death in the year 1978. Hence,
even on this count, I do not find any ground made out for to disturb any
finding in the concurrent judgments recorded in this case.
8. The appeal was admitted on the limited substantial question
of law as to whether it was necessary for the defendant to first admit
ownership of the plaintiffs for contending his plea of adverse possession
and whether the two Courts below adopted the proper approach of law in
examining the issue concerning plaintiffs' possession, and In the event of
defendant failing to prove adverse possession, what would be effect on the
decrees under challenge.?
9. Considering the concept of adverse possession, it is but
necessary to be borne in mind that the that claimant must establish
occupation of the suit property for a period of 12 years or more without
interruption of possession, to the exclusion of all persons openly and
hostile to the true owner adequate in in continuity and in publicity. It is
settled position of law that plea of adverse possession must be expressly
raised and established. Defendant has to necessarily admit that some one
else is owner of the property and further more, according to law, such
claimant must clearly plead and establish all the facts which are required to
prove adverse possession. One cannot be permitted to raise mutually
inconsistent pleas at different stages of the suit to base his claim as sharer
in ancestral property and other plea based on adverse possession. Plea as
to adverse possession and claim thereof cannot commence unless claimant
denounces his title claimed as sharer in joint family property. Defendant
no.1 in the present case never denounced his title as son of Janu or as an
brother of late Vitthal Janu Wagh nor he had admitted the ownership title
of the plaintiffs to the suit land so as to be permitted to raise a plea of
adverse possession. In my opinion, a person who is owner of the property
under registered sale deed duly executed is deemed to be lawfully in
possession so long as there is no intrusion. Nonuser
of property by owner
even for long time would not affect title of the owner unless claimant to
adverse possession has asserted hostile title in denial of title of the true
owner peacefully, openly, continuously and for a continuous period of 12
years or more. Looking to this legal position, suit for possession was
rightly decided by the Courts below. Substantial question of law
formulated by order dated 18th August 1999 by this Court must be
answered accordingly to the effect that it was necessary for defendant no.
1 Ganpat to first admit ownership of the plaintiffs to the suit property for to
raise plea of adverse possession. He could not have been permitted to raise
plea as to adverse possession as he never denounced his claim in the suit as
a sharer in joint Hindu family property.
10. In the result, therefore, in the absence of legal proof of adverse
possession, both the Courts below by their concurrent judgment rightly
decided the suit on the basis of legal evidence placed before them. Hence,
I do not find any merit in the appeal. Appeal is accordingly dismissed with
costs.
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