- (1.) POONAM Srivastava, J. Heard Sri Atul Dayal, learned Counsel for the appellant and Sri Shashi Kant Gupta Advocate for the caveator-respondents.
(2.) THIS is defendant's second appeal. The plaintiff-respondents instituted Original Suit No. 1278 of 1980 claiming the relief for possession and removal of construction raised by the defendants from the part of the plot No. 5/166, Purana Kanpur alongwith relief of mandatory injunction against the defendant. The plaintiffs claimed to be the owner of the entire property which was purchased by her father-in-law late Sri Baji Lal through a registered sale deed in the year 1902. The husband of the plaintiff instituted S. C. C. Suit No. 460 of 1963 against the defendant for arrears of rent and eviction which was dismissed but later, on intervention of certain respectable persons, the defendant vacated the disputed property in the year 1965. The plaintiffs husband Krishna Dutt Pandey died on 2-11-1968. The defendant resides in premises No. 5/166 Purana Kanpur which is close to the disputed property, taking undue advantage of widowhood of the plaintiff and forcibly took possession of the disputed premises in the year 1980. Since the plaintiff was threatened by the defendant, a First Information Report was registered at police station Nawabganj on 20-8-1980. On 30-8-1980 the defendant started making construction, consequently a notice to remove the bricks etc. was given. On receipt of the said notice, the defendant started to make construction quickly, this led to institution of the suit. The defendant filed written statement denying the title of the plaintiff and stated that there was no need of permission before raising the construction. He claimed his title on the basis of adverse possession stating therein that he was in possession much before 1960 and after dismissal of the S. C. C. Suit, the defendant enjoyed and uninterrupted possession and he has perfected his right over the suit property. The trial Court framed as many as 13 issues. Issue No. 2 was on the question, whether late Sri Krishna Dutt Pandey was owner of the property in suit and after his death plaintiff is the owner of the property. Issue No. 6 was on the question of adverse possession. The trial Court held that late Sri Krishna Dutt Pandey was the owner of the disputed premises No. 5/16, Purana Kanpur. Issue Nos. 2, 6 and 11 were also decided against the defendant who had set up his claim on the basis of adverse possession. A conclusive finding was arrived at that the defendant could not establish his possession from the year 1965 to 1980 when the suit was instituted and the constructions were also made in the year 1980-81. The trial Court held that the defendant was not in possession and therefore, the assertion that he has perfected his right on the basis of adverse possession, is without any substance. The defendant filed an appeal which was also dismissed by the Additional District Judge, Court No. 14, Kanpur Nagar. Sri Atul Dayal has placed reliance on a number of decisions. The first decision is, Karnataka Board of Wakf v. Government of India & Ors. , (2004) 10 SCC 779. The argument advanced on the basis of the aforesaid decision is that since the defendant continued in possession after the dismissal of the S. C. C. Suit and since the possession continued without any interruption, it should be construed as hostile possession, therefore, the defendant's right on the basis of adverse possession was liable to be decreed. The next decision relied upon by the Counsel is, Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707. This decision is again on the question of adverse possession. The submission is, it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.
(3.) COUNSEL for the plaintiff-respondents has emphatically disputed argument of the learned COUNSEL for the appellant claiming title on the basis of adverse possession. The fact that the defendants it initially disputed the title of the husband of the plaintiff and subsequently changed his stand that after dismissal of the S. C. C. Suit, the plaintiff had not tried to interfere in his possession, therefore, the defendants' possession was liable to be held continues and his title on the basis of adverse possession cannot be accepted. I am in agreement with the submission of Sri S. K Gupta. It transpires from bare reading of the plaint that the case set up by the plaintiff is that after dismissal of the S. C. C. Suit, the plaintiff was put in possession in the year 1965. Her husband died in the year 1968 and it was only in the year 1980 when the defendant-appellant tried to take forcible possession and started raising construction on the disputed premises, the cause of action arose and the suit was instituted. The pleadings also show that a legal notice was sent to the defendant and also a First Information Report was lodged at the instance of the plaintiff. This has been accepted by the trial Court after assessing the evidence on record and confirmed in appeal, therefore, it is a farfetched claim that the defendant has perfected his right. The decision of the Apex Court relied upon by the learned Counsel for the appellant does not help him as it is settled law that to conclude ouster of the actual owner three circumstances namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner should be proved. The position stands suitably altered when the possession of the property is objected as it has been done in the instant case. The case of the plaintiffs right from the beginning is that it was only in the year 1980 when the defendant tried to take forcible possession and the suit for possession was instituted after availing other remedies i. e. , visible hostility was exhibited by the plaintiff by sending notice, lodging a report and finally instituting the suit, the defendant set up a claim of adverse possession. The burden to prove adverse possession was on the appellant which he miserably failed to discharge. The defendant failed to show on what date he came in possession, what was the nature of the possession, whether the use by him was in the knowledge of the other party, how long possession continued and his possession was open and undisturbed.;