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CASE NO.: Appeal (civil)  636 of 1997

PETITIONER: Deva (Dead) Thr. L.Rs.                            

RESPONDENT: Vs. Sajjan Kumar (Dead) By L.Rs.             

DATE OF JUDGMENT: 26/08/2003

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T  

Dharmadhikari J.

       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 â\200\223 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 â\200\223 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.

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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 â\200\223 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

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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.