S.N.Bhattacharjee, J. - (1.) -By an order dated 16.8.89 the Division Bench while admitting the appeal directed that the appeal would be heard on the ground No.6 and also additional grounds. The substantial point of law involving in this case is formulated as under :- (i) Whether the appellants/defendants acquired title by reason of continuous possession since the time of their predecessor for more than 12 years in the suit plots on the basis of the unregistered hivanama dated 21.6.1951 executed by Sabeda in favour of her husband Dilwar despite the fact that Dilwar and his wife Sabeda lived together and whether such possession on the basis of the invalid deed was adverse to Sabeda.
(2.) The defendants of the original suit are the appellants herein. The suit plots belonged to Sabeda who executed deed of sale in respect of the suit property in favour of the plaintiff who did not get possession of the suit land as the same was in possession of the Defendants. In the R.S.R.O.R the name of the predecessor of the defendants has been recorded in possession column and taking advantage of the said entries the defendants are not allowing the plaintiff to enter into the suit property. The defence was that Sabeda gifted away the said plots by an unregistered hibanama dated 21.6.1951 in respect of 5 suit plots in favour of her husband Dilwar. Dilwar took possession of the five plots asserting his own rights since the date of hibanama and got his name recorded in R.S.R.O.R. Having acquired title by adverse possession for more than 12 years the defendants have acquired indefeasible title in the suit property. The deed of the plaintiff purportedly executed by Sabeda was collusive one and did not pass any title in favour of the plaintiff. 2. Both the learned Courts below have come to the finding that the plaintiffs have acquired title by virtue of Kobala dated 3.6.1971 but they did not get into the possession of the suit property. The defendants and their father Dilwar had been in possession of the suit property but their possession was not adverse against Sabeda. Accordingly, the suit having been filed within 12 years from the date of execution of the kobala the plaintiffs are entitled to get the decree for khas possession.
(3.) Mr. Das Gupta, the learned counsel appearing for the appellants has argued before me that the findings of both the Courts below suffered from the misconception that the same standard of evidence as required in the case of a person being in unlawful occupation claiming title by adverse possession is also required in the case of a person entering into possession by invalid documents. According to learned counsel the possession of Dilwar became adverse since the date of execution of the invalid hibanama and no over act by asserting hostile title is necessary to prove his possession being adverse against the real owner, Sabeda. In support of his argument Mr. Das Gupta cites a decision in Laxmi Gouda & Ors. v. Dandasi Couda & Ors. reported in AIR 1992 (Orissa)5 wherein their Lordships held, "The expression 'adverse possession' means hostile possession i.e. possession which is expressly or impliedly in denial of title of the true owner. This principle has been recognised in numerous decisions though expressed in different ways. Where the acts of the person is possession of a property are irreconcilable with the rights of the true owner, it has been often held that such acts of the person in possession would constitute 'adverse possession' as against the true owner. The alience under a void transaction acquires no title to the property conveyed in his favour and his possession is, therefore, wrongful from the very inception. In a decision reported in AIR 1951 SC 469 (Collector of Bombay v. Municipal Corporation of the City of Bombay) their Lordships held that a person having no legal title but nevertheless holding possession of the land under the colour of an invalid grant being not referable to any legal title, it was prima facie adverse to the owner of the land. The same view was approved and followed in the decision reported in AIR 1970 SC 1778 (State of West Bengal v. The Dal housie Institute Society). This Court while considering the nature of possession under a deed of mortgage which was invalid, held that such possession is prima facie adverse to the lawful owners of the land, from the very moment such person took possession of the land.";