- (1.) RAJESH Tandon, J. 1. Heard Sri Sarvesh Agarwal coun sel for the appellant and Sri Deepak Sharma counsel for the respondent no. 1. 3. Present appeal has been filed against the judgment and decree dated 1. 9. 2003 passed by trie Additional Dis trict Judge, Nainital in Civil Suit No. 165 of 1996. 3. Briefly stated the plaintiff Smt. Manju Agarwal has filed a suit for division and for possession over 1/3 share of the property in suit. The plaintiff has alleged that the father of the plaintiff and defendant no. 1 and 2 late Sri Saligram was a rich person and was doing business in the name and style M/ S Ratan Lal Kishan Lak. He died in the year 1962 and has left behind the plain tiff, defendant no. 1 and 2 and his wife Smt. Premwati. According to the plain tiff all the above legal heirs of the de ceased Saligram had 1/4 share in his property. Smt. Premwati widow of Sri Saligram also expired on 5. 10. 1984 and on her death the share of the plaintiff in the property of late Sri Saligram has become 1/3. 4. According to the plaint case ap pellant no. 1 and his wife appellant no. 2, who is the son of the sister of Smt. Premwati (mother of the plaintiff) started living in the house of late Sri Saligram some time before the death of Smt. Premwati. The house is situated in Sadar Bazar, Haldwani and its Munici pal number is 1141. Defendants no. 3 and 4 (appellants) have no title or in terest in the house in suit. The plaintiff has one third share in the property and after division of the property possession over l/3rd share has also been prayed by the plaintiff. 5. Defendant no. 4 (appellant) has contested the case and has filed written statement. He has submitted that he was living with late Sri Saligram since the life time of late Sri Saligram and after the marriage of appellant no. 1 his wife also started living with late Sri Saligram in the disputed house. Sri Saligram died on 3. 3. 1964. After his death his wife Smt. Premwati has suc ceeded as his sole heir after his death. Smt. Premwati also died on 5. 10. 1984. He denied that there was any Will by Smt. Premwati in favour of defendant no. 3 (appellant no. 2 ). The defendant-appellants have also alleged that Smt. Premwati had executed a gift deed of the disputed house on 26. 2. 1979 in favour of the defendant no. 4 (appellant no. l ). The entire house is in possession of the appellants from the time of Sri Saligram and the appellants and they have also matured their rights by adverse posses sion. 6. The defendant-appellant no. 1 has submitted that late Sri Saligram has arranged his marriage also and he treated the appellant no. 1 as his son. The plaintiff and defendant no. 1 and 2 are the married daughters of late Sri Saligram and they are living in their in-laws houses and they are not in posses sion over the house in dispute in any way. The disputed' house was not the ancestral property of late Sri Saligram but the appellant no. l had constructed the same from his own funds. 7. On the pleadings of the parties following issues were framed : 1. Whether Smt. Premwati mother of the plaintiff was legally entitled to transfer the property in dispute to defendant no. 4 by way of gift deed? If not, its effect?
(2.) WHETHER the plaintiff and de fendants no. 1 and 2 are own ers, entitle and in possession over the property left by their father? If so, its effect? To what share is the plaintiff en titled over the disputed property? Whether the defendant no. 4 have got constructed the dis puted property or part thereof by his own earnings? If so, to what extent?
(3.) WHETHER the suit is barred by estoppels? To what relief, if any is the plaintiff entitled? 8. On the prayer of the plaintiff the trial Court vide order dated 24. 5. 2001 directed the defendants to adduce evi dence before the evidence of the plain tiff and the right of the plaintiff to ad duce evidence got reserved under Order 18 Rule 4. Thereafter defendant no. 4 Adarsh Agarwal examined himself as D. W. I and Ram Rakshpal as D. W. 2. 9. Defendant no. 4 has filed docu ments Ex. ka-1 and Ex. ka-2. No evidence has been adduced by the plaintiff. 10. The trial Court has held that after, the death of late Sri Saligram, Smt. ; Premwati had l/4th share over the house in dispute and she was legally entitled to gift that much share only. It was also held that the defendants no. 1 and 2 each are also entitled of l/4th share of the disputed house. The trial Court has also held that the defendant no. 4 has not been able to prove that he had constructed the house in ques tion or part thereof with his own earn ing. With such findings the trial Court has decreed the suit of the plaintiff for division and possession over l/4th share on the disputed house. 11. Feeling aggrieved the present appeal has been filed by the defendant no. 3 and 4. 12. According to appellant Adarsh Agarwal he was living with late Sri Saligram much before his death and af ter his marriage his wife has also started living in the house of late Sri Saligram. Sri Saligram died on 3. 3. 1964. Before his death Sri Saligram has executed his Will and authorised his wife Smt. Premwati to do all his business with the help of appellant Adarsh Kumar. The original Will Ex. ka-1 is on the record. No doubt, nothing has been mentioned re garding the disputed house in that pa per Ex. ka-1 by the deceased Saligram. 13. Another document which has been filed by the appellant Adarsh Agarwal is Ex. Ka-2, which is a regis tered gift deed executed by Smt. Premwati in favour of appellant Adarsh Kumar for l/4th share of the house in question on 26,2. 1979. The defendant has Submitted'that he was already in possession of 3/4 share of the house at the time of gift deed and after the gift deed he became owner in possession of the entire house. 14. D. W. 2 Sri Ram Rakshpal Garg has also supported the statement of the defendant no. 4 and has stated that late Sri Saligram called Adarsh Kumar from Bareilly and he was looking after the business alongwith Saligram in the shop and thereafter with his wife Smt. Prema Devi. 15. Admittedly, late Sri Saligram died on 3. 3. 1964 thereafter his wife con tinued to manage his business for about 20 years along with the appellant no. 1 and she died on 5. 10. 1984. After her death the entire business and property of late Sri Saligram came in possession of Sri Adarsh Kumar and none has ques tioned his possession and ownership over the business or the house for the last 12 years and the suit for division and pos session for the first time filed by the plaintiff Smt. Manju Agarwal on 9. 9. 1996. The plaintiff has to show that after the death of late Sri Saligram she came in possession over the disputed house at any point of time in order to claim her share. 16. The original owner of the house was late Sri Saligram died in the year 1964 but after his death the plaintiff did not claim her share in the house and in the year 1984, Smt. Premwati has also died- The plaintiff did not claim division or possession over the house in dispute. Defendant no. 4 (appellant no. l) has submitted that he has constructed the house in dispute after renovating the old house in the year 1972. He has proved this fact by stating that; @ Hinde . . . . . . . . . . . . . . . . . . . . . . . . 17. In his cross examination this witness has stated as under : . . . . . . . . . . . . . . . . . . . . . . @ Hinde 18. There is yet another factor of the case of the appellants. The defend ant no. 4 has alleged that he is in ac tual physical possession over the house in question after the death of Shri Saligram in the year 1964. He has also reconstructed the house in the year 1972. Smt. Premwati Devi was in pos session of l/4th share of the house. She has gifted her share to him on 26. 2. 1979 and thereafter he is in possession of the entire house peacefully and without any interruption and as such he has acquired right by adverse possession. 19. The plaintiff has not come in the witness box to contradict the statement of the appellant no. 1. A perusal of Will Ex-ka-2 shows that appellant no. 1 Adarsh Kumar was looking after the business of late Sri Saligram much be fore the date of execution of the Will. The relevant assertion in the Will is quoted below. @ Hinde 20. The Apex Court in the case Karnataka Board of Wakf vs. Govt. of India (2004) 10 SCC 779 has described the essentials of adverse possession and has held as under: In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly assert ing hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming ad verse possession must prove that his possession is " nee vi, nee clam, nee precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their pos session is adverse to the true owner. It must start with a wrongful dispo sition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period (See S. M. Karim v, Bibi Sakina 1, Parsinni v. Sukhi and D. N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) oh what date he came into posses sion, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is try ing to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 21. After the death of original owner of the house Sri Saligram in the year 1964, defendant no. 4 was residing in the house along with Smt. Premwati Devi who also gifted her share of the house also to the Defendant-appellant no. 1 Adarsh Kumar by gift deed dated 29. 10. 1979. Thus the defendant no. 4 Sri Adarsh Kumar has claimed his title over the property in suit by adverse pos session. 22. As held by the Apex court in the case of Karnataka Board of Wakf (supra) that for claiming adverse posses sion a person has to show; (a) on what date he came into pos session, (b) what was the nature of his pos session, (c) whether the factum of posses sion was known to other party (d) how long his possession has con tinued and (e) his possession was open and un disturbed. 23. A perusal of the issues framed by the trial court shows that no issue on the adverse possession has been framed and no findings has been recorded on this question. The issue of adverse pos session for the first time raised by the appellant at the appellate stage. There fore, it would be in the interest of jus tice to decide the question of adverse possession after framing of proper issue. The case deserves to be remanded to the trial court for its findings on the following issue :] Issue No. 7: Whether the defendant no. 4 has matured his rights over the disputed property by adverse possession? 24. Consequently, the appeal is al lowed. The impugned Judgment and de cree dated 1. 9. 2003 passed by the Ad ditional District Judge; Nainital is hereby set aside. The case is remanded to the trial Court for recording its findings on the above issue along with afresh find ings on other issues after giving oppor tunity to the parties to adduce further evidence, if any. No order as to costs. .;