1. Heard Sri B.N.Agarwal, learned counsel for the petitioner and Sri A.N.Bhargav, learned counsel for the respondents.
2. The petitioner having lost in both the Courts below and is facing decree of ejectment and payment of arrears of rent has come to this Court assailing the Trial Court's judgment dated 05th May, 2000 in. S.C.C. Suit No.46 of 1990 and Revisional Court's judgment dated 7th August, 2001.
3. The respondent-landlord Garib Das Lahoria filed Original Suit No.96 of 1990 in the Court of Judge Small Cause, Jhansi against Irshad Ahmad (petitioner), Nisar Ahmad and Siraj Ahmad alleging that they are in default in payment of rent and therefore they should be evicted from House No.47 (new no.47, 47/1) Schoolpura, Prem Nagar Jhansi.
4. The petitioner filed written statement disputing his status as tenant in the premises in question and contended that the house in question was purchased by his father Shahadat Bux in an auction and petitioner has continued to occupy the said premises in the capacity of owner after death of his father. He disputed the very claim of respondent No.1 that he is owner of premises in question and also disputed existence of relationship of landlord and tenant between the petitioner and respondent No.1. He further stated that Nisar Ahmad, defendant No.1 in the suit has never resided in the said premises but so far as defendant No.3 is concerned he did not dispute his occupancy but contended that petitioner and Siraj Ahmad i.e. defendant No.3 herein had never paid any rent to the respondent No.1 Garib Das Lahoria since property in dispute is owned by petitioner himself.
5. Before the Trial Court, during the course of arguments, it appears that ownership of Sri Garib Das (plaintiff-respondent No.1) was found to be proved and this issue was not carried. Before this Court also learned counsel for the petitioner did not dispute that the said issue was determined against the petitioner and in favour of respondent No.3 in another title suit i.e. Original Suit No.572 of 1984 decided by the Court of Munsiff (Irshad Ahamand Vs. Garib Das Lahoria) decided on 25.10.1988 whereagainst civil appeal No.236 of 1988 was also dismissed by the Court of District Judge, Jhansi by order dated 23.12.1989.
6. However, his further contention is that since there is no relationship of landlord and tenant, therefore, possession of petitioner was adverse and hence he became owner of the property in dispute after expiry of period of 12 years which plea has been rejected by Courts below observing that mutually destructive plea are not permissible. He contended that this view of the Courts below is incorrect and placed reliance on Apex Court's decision in Baldev Singh & Ors. v. Manohar Singh & Anr. (2006) 6 SCC 498 (Para 8) to contend that contradictory plea can be taken by a party in a written statement. He further contended that even if respondent No.1 was owner of the premises in question, the possession of the petitioner being adverse, he became owner and therefore also the suit could not have been decreed.
7. It is further contended that once relationship of landlord and tenant is not admitted, onus lie upon the landlord to prove it. But, in the present case sufficient evidence was not produced by the landlord to prove the aforesaid relationship and therefore the impugned orders are bad.
8. Lastly it is contended that in a case where very existence of contract of tenancy is not proved, decree of possession could not have been granted by Small Causes Court but the proceedings could have been initiated in a regular suit. Reliance is placed on this Court decision in Rama Shanker v. Bidhey Khan & Anr. AIR 1976 All 155.
9. However, I do not find any force in any of the above submission.
10. First of all I take up the issue regarding adverse possession. Admittedly, the petitioner pleaded in his written statement that property in dispute was purchased in an auction by petitioner's father and after his death has been succeeded by him. He was residing in the premises in question as owner thereof. Having said so, he has pleaded that landlord respondent No.1 has never been in possession of the property in dispute in any manner and not owner thereof hence there is no relationship of landlord and tenant. In the entire written statement there is no pleading with regard to adverse possession except a bare averment in para 16 that on account of adverse possession also petitioner is owner of property in question.
11. Can it be said to be sufficient pleading to meet the claim of adverse possession, whether in the above circumstances mutually destructive pleas could have been taken and whether the Courts below are right in rejecting claim of petitioner with regard to adverse possession, which are issues which this Court is of the view that petitioner's claim has rightly been non suited.
12. First of all I come to the decision relied by petitioner. In Baldev Singh (supra) para 8 relied by the petitioner reads as under:
"It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 in which the Privy Council observed:
"All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."
13. It has nowhere been observed in the aforesaid judgment that mutually destructive pleas are permitted to be taken in a written statement. It cannot be doubted that alternative pleas can be taken but not mutually destructive pleas, which are totally inconsistent. The issue relating to adverse possession and its various facets has been considered in detail by Special Bench of this Court in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad & Ors., 2010 ADJ Page 1 (SFB)(LB) (judgment delivered by myself). I need not to delve into this issue on my own but it would be useful to quote relevant extract thereof which read as under:
"2837. In this case we are concerned with the concept of adverse possession. A person other than owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallise in ownership after the expiry of the prescribed period or limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law. 'Permissible possession' shall not mature a title since it cannot be treated to be an 'adverse possession'. Such possession, for however length of time be continued, shall not either to be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession."
"2844. The law in respect to adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by the Apex Court in P. Lakshmi Reddy (supra) (para 4). The Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [Radhamoni Debi Vs. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case before the Apex Court in P. Lakshmi Reddy (supra) was that of co-heirs where the plea of adverse possession was set up. In this regard it was held:
"But it is well settled in order, to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of the joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heir title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
2845. In Thakur Kishan Singh Vs. Arvind Kumar, AIR 1995 SC 73 the Court said:
"A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession."
"2847. In Saroop Singh Vs. Banto and others, 2005(8) SCC 330 the Court held in para 30:
"30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . . ."
2848. In T. Anjanappa (supra) the pre-conditions for taking plea of adverse possession has been summarised as under:
"It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
2849. In P.T. Munichikkanna Reddy (supra) it was held:
"It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner."
2850. In the above case the Apex Court discussed the law in detail and observed:
"Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile." (Para 5) "Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title."(Para 6) "Therefore, to assess a claim of adverse possession, two pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property" (Para 9) 2851. In para 12 of the judgment, referring to its earlier decision in T.Anjanappa (supra), the Court held that if the defendants are not sure who is the true owner, the question of their being in hostile possession and the question of denying title of the true owner do not arise. It also referred on this aspect its earlier decision in Des Raj and others vs. Bhagat Ram(Dead) by LRs. And others 2007(3) SCALE 371 and Govindammal v. R. Perumal Chettiar and others JT 2006(1) SC 121.
2852. In Annakili Vs. A. Vedanayagam and others, AIR 2008 SC 346 the Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi is held to be a requisite ingredient of adverse possession well known in law. The Court held:
"It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."
2853. In Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395 the Court said:
". . . . for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession."
"2873. The Court in P. Lakshmi Reddy (supra) quoted with approval Mitra's Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at page 159, quoting from Angell on Limitation:
"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."
2874. It further held:
"Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus."
"2876. In Annasaheb Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543 the Court, in para 15, said:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
2877. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 the Court in paras 27 and 28 held:
"27...it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
"2880. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC 62 in para 7 and 9, the Court held:
"...It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers."
"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."
2881. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1 SCC 271 with reference to a case dealing with such an issue amongst co-sharers it was observed that "Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription.
2882. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
2883. In Amrendra Pratap Singh (supra) considering as to what is adverse possession, the Court in para 22 observed :
"What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession."
"2889. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy the requirement of adverse possession, the person claiming it must prove as to how and when the adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del. 19). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was stressed upon by the Apex Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. (See Mahesh Chand Sharma Vs. Raj Kumari Sharma AIR 1996 SC 869.
2890. In Parsinnin Vs. Sukhi (1993) 4 SCC 375, it said that burden of prove lies on the party who claims adverse possession. He has to plead and prove that his possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous.
2891. Article 144 L.A. 1908 shows that where a suit for possession is filed, it is the defendant to whom the plea of adverse possession is available and it is he who has to take necessary pleadings. A suit by a plaintiff based on adverse possession is not contemplated by Article 144 inasmuch the suit contemplated therein is for restoration of possession and where a person is already in possession, though adverse possession, the question of filing a suit for possession would not arise. If the chain of possession or continued possession ceased or interrupted, particularly at the time of filing of the suit, the adverse possession extinguishes and the earlier long possession, may be of more than the statutory period, would not give any advantage if the possession has been lost at the time of filing of the suit.
2892. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla Vs. Sabitri Bera & others JT 2009 (10) SC 538.
2893. In Gautam Sarup Vs. Leela Jetly & others (2008) 7 SCC 85, the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other. "
"2903. Since adverse possession is a plea to usurp title over immovable property which otherwise the claimant does not possess and its successful claim would mean that the real owner shall be denuded of his title and the same would stand conferred upon the claimant, the pleadings in this aspect, have been held of utmost importance. They have to be very clear, emphatic and to the extent of covering every necessary ingredient to satisfy the claim of adverse possession. The claimant cannot take advantage of default on the part of the other side but has to set up his case on his own failing which it is he, who has to suffer. Since this kind of claim has the result of defeating the very right of an otherwise rightful person, the law is very strict on this aspect. It needs a thorough and minute inquiry into the claim of the person who asserts title on the basis of adverse possession."
"2907. The Court also referred to its earlier decision in D.N. Venkatarayappa (supra) observing :
"Therefore, in the absence of crucial pleadings, which constitute 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 in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
2908. In D.N. Venkatarayappa (Supra), the Court emphasized the importance of pleading as also the pre requisites of plea of adverse possession and said :
"3. ...What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario."
"... ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor."
"apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession."
"A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession."
"... one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner."
"...there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question."
"But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
"Therefore, in the absence of crucial pleadings, which constitute 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 in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession"
"...person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period."
"5. ... in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellants' possession would become adverse. There is no material to that effect in the present case. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants."
"2918. From the above discussion what boils down is that the concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right and in fact deny the same. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. In order to determine whether the act of a person constitutes adverse possession is 'animus in doing that act' and it is most crucial factor. Adverse possession commences in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The persons setting up adverse possession may have been holding under the rightful owner's title, i.e., trustees, guardians, bailiffs or agents, such person cannot set up adverse possession. Burden is on the defendant to prove affirmatively.
2919. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse. The reason is that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of other's title make his possession adverse so as to give himself the benefit of the statute of limitation. A person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all.
2920. Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation."
14. In view of the above, since neither there is any appropriate pleading conforming to the necessary ingredients of the adverse possession nor the same has been pleaded otherwise nor it shows animus possidendi to hold premises in question with an intention to hostile its real owner hence the question of conferment of ownership upon the petitioner the application of adverse possession does not apply at all.
15. Now coming to the next issue of relationship of landlord and tenant between the petitioner and respondent No.1, both the Courts below on the basis of evidence available before them have recorded concurrent finding of fact holding relationship of landlord and tenant between petitioner and respondent no.1. In absence of anything to demonstrate the said findings perverse, no interference is called for. The scope of judicial review under Article 227 is very limited and narrow as discussed in detail by this Court in Civil Misc. Writ Petition No.11365 of 1998 (Jalil Ahmad Vs. 16th Addl. District Judge, Kanpur Nagar & Ors.), decided on 30.7.2012. There is nothing which may justify judicial review of orders impugned in this writ petition in the light of exposition of law, as discussed in the above judgment.
16. Now coming to the third and last aspect placing reliance on this Court decision in Rama Shanker (supra). I do not find anything in the aforesaid judgment lending support to the petitioner for the reason that it has not been disputed that on the premises in question provision of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") are applicable and Courts below have only recorded findings of fact holding relationship of landlord and tenant between petitioner and respondent No.1. They are well within authority granting decree in favour of the landlord. No other illegality has been shown in the order impugned in the writ petition.
17. No other argument has been advanced.
18. The writ petition lacks merit. Dismissed with cost of Rs.5,000/-
19. Interim order, if any, stands vacated.
Order Date :- 14.8.2012 KA