Suit – Possession – Predecessor-in-interest of the respondents (original plaintiff) filed a suit against the predecessor-in-interest of the appellants (original defendant) in respect of a schedule property – Original plaintiff claimed himself to be the full and absolute owner of the schedule property and sought directions for defendant to remove the temporary structure on the schedule property and put the plaintiff in vacant possession of the said property – The suit was resisted by the original defendant and it was stated that plaintiff ’s brother had executed sale agreement on 10.10.1976 in favour of defendant’s wife and she was put in possession of the schedule property – However, sale deed was not registered – Defendant also pleaded adverse possession in his written statement – It was also stated that a General Power of Attorney was executed in favour of defendant’s wife on 08.08.1988 by plaintiff ’s brother – The trial Court held that it was a case of continuous possession since 1976, thus defendant had perfected their title to the schedule property and relief of possession to plaintiff was declined – However, the judgment of the trial Court also showed inconsistencies in documents i.e. agreement of sale, General Power of Attorney, affidavit and deposition of DW-2 – The High Court decreed the suit against the heirs of the original defendant, as original defendant expired – On appeal, held: The High Court reexamined in extenso the evidence produced by both the parties and affirmed the findings arrived at by the trial Court regarding the inconsistencies in the agreement of sale and General Power of Attorney – Further, it was also held that the General Power of Attorney dated 08.08.1988 revealed that plaintiff ’s brother was in possession of property as on 08.08.1988 – As the sale deed was not registered and ground taken that there was bar/prohibition on transfer of land was not proved – There is no reason to disturb the concurrent findings of the courts below – Thus, plea of possessed title of defendant’s wife was not established on basis of the documents propounded – As far as alternative plea of adverse possession is concerned, the claim of title from 1976 and plea of adverse possession also from 1976 cannot simultaneously hold – In order to establish adverse possession an enquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial – In the instant case, this fact has not been proved – The plea of adverse possession is lacking in all material particulars – The legal position stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date – Therefore, appellants directed to hand over vacant and peaceful possession of the schedule property.
Dismissing the appeal, the Court
HELD: 1. It is relevant to note that on the crucial issue of the factual matrix regarding the documents and the conclusion to be drawn from them, both the Courts are ad idem. Not only grave doubt has been thrown on the story of the appellants herein, but both Courts also record that the documents sought to be propounded by the appellants, i.e., the Agreement of Sale, the Power of Attorney and the affidavit, have too many discrepancies to be treated worth their while. This is apart from the fact that the non-registration of the title document in favour of defendant’s wife-appellant 1 herein, was sought to be explained away on the ground of there being a bar/prohibition on transfer of land, which aspect was however not proved by the appellants by leading any evidence. There is also adverse comment on the testimony of the witnesses, who appeared on behalf of the appellants, more so DW-2, who was alleged to have scribed Exhibits D-1 and D-2. As noticed above, the conclusion of the Trial Court was that this witness had either forgotten all facts or had given tutored evidence as he claimed that both Exhibits D-1 and D-2 were prepared on the same date while the documents were twelve (12) years apart. In fact, the Trial Court has succinctly set out that the treasury seals were found to be erased and fresh dates affixed on Exhibit D-1, the signature of plaintiff was also found to be erased at a particular place, as also the fact that his name was traced on in the General Power of Attorney, Exhibit D-2. These findings have been categorically affirmed by the High Court, which is the last court on facts. [Para 24][541-B-F]
2. There is no reason to disturb these concurrent findings of the Courts below, and even if this Court independently examines the evidence, there is no reason why we would come to a different conclusion. [Para 25][541-G]
3. The plea of the original defendant that his wife possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original defendant was that it is his wife who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined. [Para 28][542-C-D]
4. This Court may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-a-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. [Para 29][542-E-F]
5. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. [Para 34][544-B]
6. In the facts of the present case, this fact has not at all been proved. The possession of the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. [Para 35][544-C]
7. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out. [Para 36][544-D]
8. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date. [Para 38] [544-F]
Karnataka Board of Wakf v. Government of India & Ors. (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255; Mohan Lal (Deceased) Thr. LRs. v. Mirza Abdul Gaffar & Anr. (1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638; P.T. Munichikkamma Reddy & Ors. v. Revamma & Ors. (2007) 6 SCC 59 : [2007] 5 SCR 491; M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors. (2020) 1 SCC 1; Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr. (2019)
13 SCC 324 – relied on.
Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019) 8 SCC 729 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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