Deva (Dead) Thr. L.Rs vs Sajjan Kumar (Dead) By L.Rs

By the judgment impugned in this appeal, the High Court

of Madhya Pradesh in Second Appeal No. 518 of 1978 under

Section 100 of the Code of Civil Procedure has reversed the

concurrent findings in the judgments of the two courts below

and decreed the suit filed by the plaintiff [respondent herein]

for delivery of possession of suit land to the extent of

70' X 20' in Survey No. 452. The land in Survey No. 452 has

been found by all the courts to be of the ownership of the

plaintiff. The land is alleged to have been encroached upon by

deceased – Deva, the sole defendant, who is succeeded by his

legal representatives as appellants in this appeal. Deva was

owner and in possession of the adjoining land in Survey No.

453.

The plaintiff's case is that while he was out of the village

in the course of his duties being in government service, the

defendant – Deva encroached upon suit land in July, 1966.

The suit of possession was instituted on 18.12.1972.

The trial court dismissed the suit as barred by limitation

on a finding that the defendant is in possession of the

encroached land since Samvat 1996 i.e. the year 1940.

The first appellate court confirmed the above finding of

the trial court and upheld the dismissal of the suit on the

ground of limitation.

The High Court in Second Appeal has reversed the

judgments of the two courts below by relying on defendant's

own admission in the witness-box that he came to know of his

alleged encroachment of land in Survey No. 452 belonging to

the ownership of the plaintiff only after filing of the suit. The

High Court, therefore, came to the conclusion that on this

admission of the defendant, he could not be held to have

prescribed title by adverse possession.

Learned counsel appearing for the appellant in this

appeal, questions the jurisdiction of the High Court in Second

Appeal under Section 100 of the Code of Civil Procedure to

interfere with the concurrent findings of the facts of two courts

below it.

Learned senior counsel appearing for the

respondent/plaintiff supported the judgment of the High Court.

It is submitted that since a very important piece of evidence in

the nature of admission of the defendant had been overlooked

by the courts below and thus the suit was wrongly dismissed

on the ground of limitation, there was full justification for the

High Court in Second Appeal to reverse the judgments of the

courts below.

Since a doubt arose with regard to the content and effect

of the alleged admission of the defendant in the witness-box,

we directed the parties to supply translated copies of the

depositions of the witnesses recorded in the trail court. The

necessary copies of the depositions were not available with the

counsel. We have, therefore, requisitioned the record of the

trial court. On looking into the record, we find that the High

Court was right in interfering with the judgments of the courts

below on the basis of admission contained in the statement of

the defendant. It clearly negatives his case of being in adverse

possession of the encroached portion of the land from the year

1940. The relevant part of the admission in the statement of

defendant – Deva (SDW-6) [rendered into Enghlish] reads as

under :-

"The land measuring 70' X 20' of Survey No. 453 of Sajjan

Kumar is in my possession - since last 10 to 12 years, Sajjan

Kumar is out of village in service but he keeps on coming off

and on. It is wrong that 10 years back, I raised a compound

and encroached on the suit land. On the contrary, the suit land

is in my possession right from the beginning. After filing of

this suit, it came to my knowledge that I am in possession of

two biswas of land of Survey No. 453. Before filing of this

suit, Patwari and others had come to the land for measurement

and they told me that on land in Survey No. 453, your

possession has been found. Then I told them that I am in

possession since beginning."

In the above part of the deposition, the defendant admits

that the dispute of encroachment concerning suit portion 70' X

20' came to his knowledge only after filing of the suit. The

defendant has described suit land 70' X 20' to be part of his

Survey No. 453. But all the courts have come to a concurrent

finding that suit land to the extent of 70' X 20' is part of

Survey No. 452 belonging to the plaintiff.

From the deposition of the defendant, it appears that he

had encircled by a compound suit land 70' X 20' by treating it

to be a part of his adjoining Survey No. 453.

The deposition extracted above, in any case, negatives

the defendant's case of having prescribed title by adverse

possession from the year 1940. The animus to hold the land

adversely to the title of the true owner can be said to have

started only when the defendant derived knowledge that his

possession over the suit land had been alleged to be an act of

encroachment - on plaintiff's survey number.

The above-quoted admission contained in the defendant's

deposition, does not make out a case in his favour of having

acquired title by adverse possession. Mere long possession of

defendant for a period of more than 12 year without intention

to possess the suit land adversely to the title of the plaintiff

and to latter's knowledge cannot result in acquisition of title by

the defendant to the encroached suit land.

The plaintiff's suit is not merely based on his prior

possession and subsequent dispossession but also on the basis

of his title to Survey No. 452. The limitation for such a suit is

governed by Article 65 of the Limitation Act of 1963. The

plaintiff's title over the encroached land could not get

extinguished unless the defendant had prescribed title by

remaining in adverse possession for a continuous period of 12

years.

The High Court, therefore, was right in upsetting the

judgments of two courts below on the question of adverse

possession and limitation while granting decree of possession

in favour of the plaintiff.

Consequently, we find no merit in this appeal and the

same is, accordingly, dismissed but in the circumstances

without any order as to costs.