- (1.) THIS appeal is directed against the judgment dated 27. 12. 2004 passed by the High Court of gujarat at Ahmedabad in Second Appeal no. 146 of 2004.
(2.) BRIEF facts of the case which are necessary to dispose of this appeal are as under: The appellant who has lost both before the Court of learned District Judge, Palanpur and the High Court has approached this court by way of special leave petition under article 136 of the Constitution. The appellant (who was the plaintiff before the trial Court) filed a suit for declaration of permanent injunction with the following prayer: " (1) To hold and declare that the plaintiff is the lawful owner and occupier in respect of land of Survey No. 66/3 admeasuring 6 Acre 11 Gunta situated in the boundaries of village Yavarpura, Taluka deesa. (2) That the defendants of this case themselves or their agents, servants, family members do not cause or to be caused hindrance in the possession and occupation of the plaintiff in respect of land of Survey No. 66/3 admeasuring 7 acre 10 Gunta in the boundaries of village Yavarpura and also to grant permanent stay order to the effect that they not forcibly enter into the said land of Survey No. 66/3 against the defendants and in favour of the plaintiff of this case. (3) To grant any other relief which is deemed fit and proper. (4) To award the entire cost of this suit on the defendants. The trial Court framed the following issues: "1. Whether the plaintiff has proved that he is the lawful owner of the disputed land? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. What order and decree?" the trial Court held that in the year 1925 the land was purchased for Rs. 75/- from gama Bhai Gala Bhai by the appellant and he is having possession of the same for the last 70 years. The learned trial Court in the same judgment has also held that in 1960 the appellant forcibly took possession of the land in question and he has been in continuous possession till 1986, which is proved from the register of right of cultivation. Thus, the appellant became owner of the suit property by adverse possession. It may be significant to note that neither the appellant ever pleaded adverse possession nor an issue was framed by the trial Court with regard to the ownership of the respondents by adverse possession. According to the appellant, there is no basis for the finding of the ownership of the appellant on the basis of adverse possession.
(3.) THE respondents being aggrieved by the said judgment of the trial Court dated 5. 4. 1986 preferred an appeal before the learned District Judge, Palanpur, Gujarat. The learned District Judge, after hearing the counsel for the parties and perusing the entire record of the case, came to the definite conclusion that the appellant herein has failed to prove that the land in question was purchased by him. The learned District Judge referred to in the case of B. N. Venkatarayapa v. State of Karnataka, (1998) 2 CLJ 414 (SC), wherein it was held that in absence of crucial pleadings regarding adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest of the original grantee, the petitioners cannot claim that they have perfected their title by adverse possession. The burden of proof lies on the petitioners to show that they have title to and have been in possession and he was dispossessed and discontinued his possession within 12 years from the date of filing his suit. Adverse possession implies that it commenced in wrong and is maintained against right.;