The contention of the learned counsel for the appellant that by
way of filing reply dated 26 th July, 1977 to the notice issued by the
plaintiff on 12th July, 1977 asking the defendants to hand over the
possession of the suit property, the defendants have denied the title of
the plaintiff and therefore they have become owner of the suit property,
since their possession in the suit property is for more than 12 years
from the issuance of such notice on 12 th July, 1977 by the plaintiff
cannot be accepted. The possession of the defendants was permissive
possession and atleast till the written statement was filed by the
defendants in the year 2003, the defendants never set up the plea or
claimed that they have become owner by adverse possession. Unless
there is a specific denial of the title of the true owner, the limitation to
claim adverse possession would not start. A person is said to hold the
property adversely to the true owner when that person in denial of the
owner's right excluded him from the enjoyment of his property.
Therefore, the claim of the defendants that they have become the owner
of the suit property by way of adverse possession has rightly been
rejected by the Courts below.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 242 OF 2013
WITH
SECOND APPEAL NO. 243 OF 2013
Smt. Shahajadbi Badashah Attar
vs.
Najama Imamuddin Shaikh
CORAM : S.S. SHINDE, J.
DATE : 24th September, 2013.
Citation; 2015(1) MHLJ 403
Second Appeals No. 242 of 2013 and 243 of 2013 are filed
challenging the judgment and order dated 31 st January, 2013 passed by
the Principal District Judge, Kolhapur in Regular Civil Appeal Nos. 313
of 2006 and 314 of 2006 thereby dismissing the appeal and confirming
the judgment and order dated 16 th September, 2006 passed by the 3rd
Joint Civil Judge, Junior Division, Kolhapur in Regular Civil Suit No.
971 of 2002 filed by the respondent for possession and for mense profit
and dismissing the counter claim of the appellant filed for seeking
declaration that the appellant became owner by adverse possession.
2.
The learned counsel appearing for the appellant submits that the
Courts below were not justified in rejecting the counter claim filed by
the appellant herein and allowing the suit ignoring the provisions of
Article 65 of Limitation Act. It is submitted that the plaintiff by notice
dated 12th July, 1977 demanded possession of the suit property and by
reply dated 26th July, 1977, the appellant/original defendant refused to
hand over the possession disputing the title of the plaintiff and also in
view of the fact that from 1977 upto 2002 the plaintiff did not take
steps and filed suit for possession only in the year 2002. It is submitted
that as per the provisions of Article 64 of the Limitation Act, the
appellant/original defendant has become the owner by adverse
possession. It is submitted that by reply dated 26 th July, 1997 to the
notice dated 12th July, 1977 issued by the plaintiff to the defendant, the
defendant has specifically denied the title of the plaintiff and therefore
by way of adverse possession, the original defendant has become the
owner of the suit property. It is submitted that since 12 years period
from the date of reply to the notice of the plaintiff has been elapsed and
the possession of the defendant is uninterrupted and continuous in the
suit property and therefore by virtue of provisions of Article 65 of
Limitation Act, the defendant has perfected the title. It is submitted that
both the Courts below have not properly appreciated the contention of
the appellant that by way of adverse possession for more than 12 years,
the appellant has become owner of the suit property. It is submitted
that the trial Court has not rendered any findings about the counter
claim of the appellant/original defendant. It is submitted that the
judgment and order of the trial Court is silent about the counter claim
of the original defendant. It is submitted that both the Courts below
have not properly appreciated the contents of notice of the plaintiff in
the year 1977 and the reply of the defendant given to the said notice in
the year 1977. The learned counsel invited my attention to the grounds
taken in the appeal memo annexure thereto, provisions of Articles 64
and 65 of the Limitation Act and other material placed on record
submits that the Second Appeal deserves consideration.
The learned counsel submits that when the plaintiff sent notice to
3.
the defendant demanding the possession of the suit property and by
way of reply to the said notice, the defendant refused to hand over the
possession, therefore, the limitation so as to claim the ownership by
adverse possession would start reckoning from the date of reply given
by the defendant to the notice issued by the plaintiff.
4.
The learned counsel invited my attention to the judgment of the
Supreme Court in the case of Bondar Singh vs. Nihal Singh reported in
(2003) 4 SCC 161 and in particular paragraphs 3 and 5 of the said
judgment. He submits that in case of Bondar Singh (supra), the sale
deed dated 9th May, 1931 by Fakir Chand, father of the defendants in
favour of Tola Singh, the predecessor in interest of the plaintiffs was
executed. However, the said sale deed is unstamped and unregistered
and therefore it cannot convey title to the land in favour of the plaintiffs
therein. Under law a sale deed is required to be properly stamped and
registered before it convey title to the vendee. However, the Supreme
Court held that, the said document can be used to see the nature of
possession of the plaintiffs over the suit land. The said sale deed in
was not illegal or unauthorized.
5.
question shows that initial possession of the plaintiffs over the suit land
It is the submission of the counsel appearing for the appellant
that in the facts of Bondar Singh's (supra) case, the defendants therein
issued notice on 16th April, 1956 addressed to the predecessor in
interest of the plaintiffs. By the said notice, the defendant called upon
the plaintiffs to hand over possession of the suit land to them.
According to the notice, the plaintiffs were trespassers on the suit land
and were liable to hand over its possession to the defendants.
Therefore, the Supreme Court held that, said notice is an admission on
the part of the defendants that, the plaintiffs were in possession of the
suit land at least on the date of the notice i.e. 16th April, 1956.
6.
It is submitted by the counsel appearing for the appellant that in
the facts of present case, the plaintiff issued notice to the defendant on
12th July, 1977 asking the defendant to hand over the possession of the
suit property. In reply to the said notice, the defendant refused to hand
over the possession of the suit property. It is the contention of the
learned counsel for the appellant that when the defendant refused to
hand over the possession, from the said date the possession of the
defendant became hostile and after completion of 12 years as per the
provisions of Article 65 of Limitation Act, the defendants have become
the owner of the suit property. It is the submission of the learned
counsel for the appellant that the facts involved in the present case are
similar to the facts involved in the case of Bondar Singh (supra),
therefore, he submits that the ratio laid by the Supreme Court in case of
Bondar Singh (supra) should squarely apply to the present case.
On the other hand, the learned counsel appearing for the
7.
respondent/original plaintiff submits that, there are concurrent findings
of fact recorded by the Courts below and those are not perverse and
therefore, this Court may not interfere in the concurrent findings of fact
in the present Second Appeal. It is submitted that the defendants
throughout claimed that they are coowners in the suit property and
therefore, they are entitled to retain the possession of the suit property.
It is submitted that when the defendants filed the written statement in
the year 2003 in the suit filed by the plaintiff, for the first time they
have set out the plea of perfection of title of the suit property by way of
adverse possession. He, therefore, submits that the limitation under
Article 65 of the Limitation Act to claim ownership on the basis of
adverse possession would start from the date of filing the written
statement in the suit by the defendants raising the plea of adverse
possession.
8.
The learned counsel further submits that, the trial Court and also
the Appellate Court has considered the revenue record and decreed the
suit filed by the plaintiff. It is submitted that both the Courts below
have considered the claim of the defendants that they have become
owner of the suit property by way of adverse possession and upon
appreciation of the evidence brought on record, rejected the contention
of the defendants that they have perfected the title of the suit property
by way of adverse possesson. It is further submitted that the suit
property is purchased by the plaintiff from one 'Shaukat' and the
defendants were in possession of the suit property even before
execution of the sale deed between the plaintiff and Shaukat. It is
submitted that the possession of the defendants in the suit property was
permissive possession out of love and affection, since the parties are
related to each other. It is submitted that once there is a 'permissive
possession' and the defendants throughout claimed that they are the co
onwers of the suit property, it is not open for the defendants to claim
that from the year 1977 they have set out the plea of adverse
possession. Therefore, relying upon the findings recorded by the Courts
below, the counsel appearing for the original plaintiff submits that both
the Second Appeals does not raise any substantial questions of law for
consideration. Therefore, the Second Appeals may be dismissed.
9.
I have heard the learned counsel appearing for the parties at
length. With their able assistance, perused the grounds taken in the
Second Appeals annexures thereto, the impugned judgment and order
passed by the trial Court and also the Appellate Court, the provisions of
Limitation Act and also the judgment of Supreme Court in the case of
Bondar Singh vs. Nihal Singh (supra). Upon perusal of the facts
referred by the Courts below, it appears that the plaintiff purchased the
suit premises from her uncle Shaukat Jamal Attar by registered sale
deed dated 25th February, 1977. The name of the plaintiff is recorded as
owner of the property extract. The defendant no. 1 is the aunt of the
plaintiff, defendant no. 2 is the son of defendant no. 1. The defendant
no.1 is the wife of brother of Shaukat, from whom the plaintiff
purchased the suit premises. The said Shaukat allowed defendant no. 1
to reside in the suit premises gratuitously. Considering the relations
between the parties, plaintiff allowed defendant no. 1 to stay in the suit
premises consisting of two rooms. In the remaining two rooms out of
the suit premises, there were tenants. The plaintiff filed the suit
bearing nos. 739/1978 and 714/1978. Defendant no. 1 was party in
the said suit. In the said suit, decree was passed in favour of the
plaintiff. The plaintiff took possession from those tenants. It further
appears that defendant no. 2 has raised objection for taking possession
by the plaintiff claiming that defendants are coowners in the property.
However, the said objection was rejected by the Executing Court and
possession was given to plaintiff.
10.
It appears that original defendant no. 2 filed Regular Civil Suit
No. 887 of 1998 against the plaintiff. The said suit was withdrawn.
The said suit was filed by defendant no. 2 claiming that the defendants
are coowners in the suit property. Therefore, it appears that both the
Courts below have considered the filing of such suit by defendant no. 2
and withdrawal of said suit by defendant no. 2 on 27 th September,
2000. It appears that, defendants had taken plea in the said suit that
the suit premises was owned by Usub, Shaukat and Badshah, each were
ig
having 1/3rd share. Shaukat has illegally transferred the suit premises
to the plaintiff and that the sale deed is not binding on defendant no. 2.
It was also contended that the decree against the tenants was obtained
by fraud and defendant no. 2 is coowner and has right to take
possession from the tenants. Therefore, both the Courts held that it was
the case of the defendants that they are the coowners/cosharers in the
suit property. The said suit was withdrawn on 27 th September, 2000.
Upon perusal of the findings recorded by the Courts below, it is
abundantly clear that that the possession of the defendants in the suit
property was 'permissive possession' even prior to execution of the sale
deed in favour of plaintiff by Shaukat. Once there was a permissive
possession and it was the case of the defendants that they are co
onwers in the suit property, the question of setting up the plea of
adverse possession from the year 1977 would not arise. Therefore, both
the Courts below have rightly concluded that the possession of the
11.
defendants in the suit property is 'permissive possession'.
Upon perusal of the judgment of the trial Court, it appears that
the trial Court framed as many as six issues for its determination and
issue no. 1 was, Does the plaintiff prove that she is having rights, title
and interests in the suit property? The said issue is answered in the
affirmative. The trial Court has considered the documentary evidence
and also the oral evidence in paragraphs 11, 12, 13 and 14 and reached
to the conclusion that the plaintiff is having rights, title and interests in
the suit proeprty and the suit came to be decreed. The First Appellate
Court has confirmed the findings of fact recorded by the trial Court.
Upon careful perusal of the findings recorded by the trial Court, which
are confirmed by the Appellate Court in respect of plaintiffs rights, title
and interests in the suit property, this Court is in agreement with the
said findings and therefore it is not necessary to reiterate or reproduce
the said findings recorded by the Courts below.
12.
The trial Court did frame issue no. 3 about the claim of the
defendants that they have become owner of the suit property by virtue
of adverse possession. The said issue has been elaborately discussed
and dealt with by the trial Court. In paragraph 35 of the trial Court
judgment, the trial Court has narrated the well settled legal position
regarding adverse possession.
13.
The contention of the learned counsel for the appellant that by
way of filing reply dated 26 th July, 1977 to the notice issued by the
plaintiff on 12th July, 1977 asking the defendants to hand over the
possession of the suit property, the defendants have denied the title of
the plaintiff and therefore they have become owner of the suit property,
since their possession in the suit property is for more than 12 years
from the issuance of such notice on 12 th July, 1977 by the plaintiff
cannot be accepted. The possession of the defendants was permissive
possession and atleast till the written statement was filed by the
defendants in the year 2003, the defendants never set up the plea or
claimed that they have become owner by adverse possession. Unless
there is a specific denial of the title of the true owner, the limitation to
claim adverse possession would not start. A person is said to hold the
property adversely to the true owner when that person in denial of the
owner's right excluded him from the enjoyment of his property.
Therefore, the claim of the defendants that they have become the owner
of the suit property by way of adverse possession has rightly been
rejected by the Courts below. There is no substance in the argument of
the counsel appearing for the appellant that there was no reply filed by
the respondent/plaintiff to the counter claim filed by the defendants.
The First Appellate Court has observed in the impugned judgment that
by way of filing rejoinder, the plaintiff has replied the averments in the
counter claim and after considering the reply of the plaintiff, the
14.
counter claim of the defendants have been rejected.
The contention of the counsel appearing for the appellant that in
case of Bondar Singh (supra), the Supreme Court has held that the
defendants therein sent notice on 16th April, 1956 to the plaintiffs to
hand over possession of the suit land, since according to the defendants,
the plaintiffs were trespassers on the suit land and therefore the
plaintiffs possession becomes hostile from the date of notice, deserves
no consideration in the facts of the present case. In the facts of the
present case, as rightly concluded by the Courts below, the possession of
the defendants was 'permissive possession' and defendant no. 2, who is
son of defendant no. 1, by way of filing Regular Civil Suit claimed co
ownership in the suit property and therefore, the facts of the case in
hand are altogether different. Therefore, the judgment in the case of
Bondar Singh (supra) does not apply to the facts of the present case.
The concurrent findings of fact recorded by the Courts below are not
perverse. Hence, no interference is called for in the Second Appeals.
15.
In the result, Second Appeals stand dismissed.
(S.S. SHINDE, J.)
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