SECOND APPEAL 570 of 2010 on 2 June 1967

IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPURSECOND APPEAL NO.570/2010

DAYALSINGH RATHOD & ORS ..VS.. DILIP MAKODE

Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Court’s or judges Orders. Registrar’s orders CORAM: SMT. VASANTI A. NAIK, J.DATE: 23 /12 / 2010

Heard Shri Dharmadhikari, the learned counsel for the appellants.

The appellants are the original defendants. A suit was filed by the respondent/ plaintiff for possession of the suit property. It was the case of the plaintiff that the defendants/ appellants were initially the owners of the suit property. The defendants had by a sale deed dated 2.6.1967 sold seven acres of land to one Abdul Rahim on 2.4.1974, Abdul Rahim executed a sale deed of three acres of land in favour of defendants / appellants. By a sale deed dated 12.6.1996, the legal heirs of Abdul Rahim executed a sale deed in regard to the remaining four acres of land in favour of the plaintiff. On the basis of the sale deed dated 12.6.1996, the plaintiff sought the possession of the suit property from the defendants.

The defendants filed the written statements and denied the claim of the plaintiff. It was the case of the defendants that the defendants had not actually sold seven acres of land to Abdul Rahim by the transaction dated 12.6.1967 as the said transaction was a loan transaction. According to the defendants Abdul Rahim had advanced some loan to the defendants and towards the security of the loan amount,a registered sale deed dated 12.6.1967 was executed by the defendants in favour of Abdul Rahim. It was pleaded by the defendants that the sale deed dated 12.6.1967 was not to be acted upon. The defendants then pleaded that Abdul Rahim was never put in possession of the suit property inspite of the execution of the sale deed and the defendants were in undisputed and continuous possession of the suit property, even after the year 1967. The defendant asserted that they were the owners of the suit properties as the registered sale deed dated 12.6.1967 was not to be aced upon.

In the alternative the defendants pleaded that they were the owners of the property by adverse possession. The defendants pleaded that they were in undisturbed and continuous possession of the suit property and were exercising right over the property as the owners thereof. The defendants sought for the dismissal of the suit.

The trial court as well as the first appellate court on an appreciation of the evidence on record, held that the plaintiff had succeeded in proving that he had purchased the suit property from the legal heirs of Abdul Rahim by a registered sale deed dated 11.6.1996. The courts held that the plaintiff further succeeded in proving that the defendants had made encroachment on the suit land. It was held by the courts that the defendants were unsuccessful in proving that the sale deed dated 12.6.1967, executed by the defendants in favour of Abdul Rahim was sham and bogus and reflected loan transaction. The courts held that the defendants had failed to prove that they had became owners of the suit property by adverse possession. The courts therefore, held that the plaintiff was entitled to the relief of possession and injunction as prayed by him.

The findings recorded by both the courts on the issue of title of the plaintiff over the suit property, about the nature of the transaction dated 12.6.1967 and on the issue of adverse possession are pure findings of facts based on a proper appreciation of the

Arguments

material evidence on record. It is necessary to note that though the defendant had pleaded in the written statement that they had became the owners of the suit property by adverse possession, they had failed to state in the written statement the time or the period from which they started asserting their ownership over the suit property to the knowledge of the true owner. The written statement is specifically silent on this aspect. For claiming title on the basis of the adverse possession it is necessary for a party to plead and prove that he started asserting his title over the suit property for a period of more than 12 years and had made his assertion known to the true owner for the same period of time. The courts may not have been right in observing that the defendants could not have claimed the title to the suit property by adverse possession, when they had claimed ownership over the suit property, but the courts were surely justified in answering the issue on adverse possession against the defendants as though the defendants had pleaded that they were in undisturbed and continuous possession of the suit property, they had failed to plead that they made it known to the true owner that they were asserting their title to the suit property. A long continuous and undisturbed possession over a property may be permissible. A long undisturbed and continuous possession over the property by exercising the right of ownership would also not be enough to prove adverse possession. For proving adverse possession, it would be necessary for the person claiming adverse possession to plead and prove that he had not only exercised his rights over the property as an owner thereof, but had also made that fact known to the true owner of the property.

In the instant case the most important ingredient for claiming adverse possession is absent in the pleadings and hence the only submission made on behalf of the appellants that the courts were not justified in holding that the defendants had failed to prove their title to the suit property by adverse possession is liable to be rejected.

Since the findings recorded by both the courts on all the issues are pure findings of facts and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs.

SMP.

JUDGE