JUDGMENT S.N. Srivastava, J.
1. Second appeal in hand has been instituted by the plaintiff appellant impugning the judgment and decree dated 2.3.1984 passed by IIIrd Additional Civil Judge, Varanasi whereby Civil Appeal No. 217 of 1983 was dismissed and judgment and decree dated 23.5.1983 in Original suit No. 356 of 1979 was nodded in affirmance.
2. The dispute in the instant petition revolves round House No. B-3/430 enumerated in Schedule B to the plaint, which is situated in locality known as Shivala District Varanasi. According to the plaint allegations, the house in question originally belonged to Rahmat Ullah, grandfather of the plaintiff appellant. The aforesaid Rahmatullah executed a Will dated 12.5.1913 in favour of Asmat Ullah, his own brother but subsequently, on a second thought, he, rescinded his earlier Will and executed a second Will dated 19.5.1917 in favour of his daughter-in-law namely, Jafri Khanam, wife of Amir Mirza. The plaintiff being grand-son of Rahmat Ullah, it is claimed by the plaintiff appellant, the property devolved upon him and he became the exclusive owner of the property in question. In the above perspective, a notice was served to defendant seeking ejectment from the property in question. The defendant in replication to the notice, claimed himself to be the exclusive owner of the property. To be precise, he denied any ownership rights of the plaintiff in the house in question and claimed himself to be the exclusive owner of the house in question. In consequence, the plaintiff sued the defendant by means of suit aforestated for the relief of possession and ejectment.
3. From a perusal of written statement, it would transpire that the defendant denied plaint allegation and set up the plea that that the property in question including two other houses originally belonged to his maternal grand father and subsequently, all the three brothers namely, Rahmat Ullah, Asmat Ullah and Barkat Ullah were given one house each and their names came to be record in the Municipal record separately and the house in question came to be recorded in the name of Asmat Ullah father of the defendant. The house in question fell to the share of Asmat Ullah and ever since then, he came into exclusive possession of the said house. It is asserted in the written statement that the Will dated 19.5.1917 was neither executed within the knowledge of any one of them nor was it effectuated during all this period. The defendant also set up the plea of adverse possession stating that he has endured in actual possession over the house in question for more than 12 years at least since 11.5.1964 on which date the application for mutation made by plaintiff appellant, came to be rejected and by any reckoning, he acquired right over the property by adverse possession. In replication, the plaintiff, repudiated the right of defendant on the basis of adverse possession stating that it was pleaded for the first time on 11.8.1978 and by this reckoning, proceeds the submission, the right by adverse possession, cannot be said to have matured.
4. The trial Court dismissed the suit by means of judgment and decree dated 23.5.1983 and held good the ownership of the defendants who according to the judgment, had matured his title by virtue of adverse possession. In appeal preferred against the judgment of the trial Court, the appellate Court affirmed the verdict. It would transpire from a perusal of the judgment recorded by the appellate Court that the defendant was in actual possession and he was also recorded as owner in the Nagar Palika within the knowledge of plaintiff since long and to say the least, since 11.5.1964 when initially plaintiff appellant made application against the entry of the name of defendant Kudratullah in the revenue record which was turned down attended with the observation that the defendants rightly continued and held possession as owner of the property in question.
5. While admitting present second appeal, the Court framed following substantial questions for determination.
1. Whether the finding on the question of limitation recorded by the lower appellate Court is vitiated on account of non-consideration of the admission of the defendant Qudarat Ullah to the effect that he did not assert his title over the disputed premises prior to 11.8.1978?
2. Whether the finding of the Lower Appellate Court that the defendant has matured title by adverse possession, is legally sound?
6. For the purposes of acquiring title by the adverse possession, the nature of the animus possendi (intention of possession) is material. The possession in order to be adverse must be adequate in continuity, in publicity and extent. It is in the light of the above principle that I proceed to scrutinize the vexed question involved in this case. The findings recorded by the two Courts below are concurrent and well-knit reasonings are propped up by appraisal of evidence in correct perspective. The Courts below reckoned with the aspect that name of defendant's father was recorded in the Nagar Palika, who endured in possession and discharged all the functions during his lifetime of ownership of the property in question. It has also been noted by the Courts below that in the year 1955, after the demise of defendant's father, the names of defendants and other heirs came to be mutated well within the knowledge of the plaintiff. The Courts below also noted in no Delphic terms upon scrutiny of documentary evidence that the defendants had been paying tax etc. as owner since the year 1945. It would further transpire from the finding noted by the Courts below that on application dated 19.8.1955 made by the defendant for mutating the names, an order was passed on 30.9.1995 for mutating the name of the defendant. The Courts below also noted in their finding that ancestors of defendant were recorded since 1927. The record also reveals that Plaintiff who examined himself as P.W. 1, admitted of making application Ex., A-22 for mutation of his name which came to be rejected by means of order dated 30.1.1965 Ex. A-23 and considering the above facts including the evidence adduced and scrutinized by the Courts below, it is eloquent that the plaintiff had full cognizance of entry of ownership of the defendant in the Municipal Register and that the defendant had been paying all the taxes as owner to the Municipal Board. Besides, from a perusal of Para 22 of the written statement, it is clearly borne out that the defendants had pleaded actual physical possession for more than 12 years and therefore, the contention that the plea of adverse possession was lacking, does not commend to me for acceptance.
7. The decisions and text-books have been unanimous in declaring the law on adverse possession that the possession of the person acquiring right by adverse possession must be actual, visible, exclusive, hostile and continued during the time. From the evidence on record which I have gone through and also taking into consideration the findings recorded by the two Courts below, it is clearly evident that the possession of the defendant was actual, visible, exclusive and hostile and continued within the knowledge of the plaintiff.
8. The learned Counsel for the plaintiff appellant cited various decisions in order to bolster up his case. I have scanned the array of decisions cited across the bar and am of the view that the decisions cited across the bar have been rendered in the different facts and flow from the different perspective and the same cannot be called in aid to prop up the case of the plaintiff appellant.
9. In Abubakar Abdul Inamdar (dead) by Lrs. and Ors. v. Harun Abdul Inamdar and Ors., JT 1995 (7) SC 179, the Apex Court held that appellant nowhere pleaded a single overt act on the basis of which it could be inferred that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs. It would appear that the case has been rendered in different facts and perspective. In the present second appeal, the defendant or his ancestors had been residing in the said house and had been paying taxes etc. as owner well within the knowledge of the plaintiff and his ancestors at least since the year 1964. It is also indicated from the findings recorded and also the record available before the Court that the defendant has been in continuous possession since 1927. In the circumstances, the decision cited across the bar, cannot be called in aid for application to the facts of the present case.
10. In Annasaheb Bapusaheb Patil and Ors. etc. v. Balwant alias Balasahed Babusaheb Patil (dead) by Lrs. and Heirs etc., JT 1995 (1) SC 370, the Apex Court defined the words 'Advocate Possession'. The Apex Court defined that adverse possession means a hostile assertion i.e. possession which his expressly in denial of title to the true owner. Referring to the above definition the Apex Court held that in Hindu Undivided Family possession of one is possession of all and mutation in the name of elder brother does not prove hostile act against other. This case having been rendered in different perspective, it can also not to be said to be applicable to the facts of the present case.
11. In M.D. Mohammad Ali v. Jagdish Kalita, 2004 SCFBRC 40 (SC), the property in question was initially owned by two brothers. The property was subsequently partitioned. It was held that if actual partition had not taken place, then respondents were bound to plead and prove ouster of defendants. From a perusal of the decision, it would transpire that the principles laid down flow from the different facts and perspective and therefore, the case does not apply to the facts of the present case.
12. In Mahabir and Anr. v. The Rural Institute, Amravati and Anr., 1998 RD P. 400 (SC), the substance of what has been held is that no question of adverse possession arises unless it is pleaded and proved that petitioner remained in the uninerrupted possession and enjoyment. This decision was also rendered in different perspective and has no application, to the facts of the present case.
13. In Khurshid Ali v. Kutubuddin, AIR 2001 MP 196, the Apex Court held that plaintiff appellant has neither raised adequate and proper pleadings nor adduced relevant and material evidence to show that his possession over the suit property was adverse nature. In the case, both the parties adduced their respective evidence to establish their respective possession and in the circumstances, the Apex Court turned down the claim of adverse possession pleaded by one party. This case also does not prop up the failing case of the plaintiff appellant. In the present case, it was pleaded in Para 22 of the written statement and perusal of the materials on record.
14. In Lachhmi Nath Pathak and Anr. v. Bholanath, AIR 1964 Allahabad 383, the learned Singh Judge laid down principles regarding adverse possession as under:
"Mere possession on a vacant piece of land used as an akhara by the plaintiff and others or sharing of possession with others without any exclusive possession or without any hostile assertion against the real owner would be constitute adverse possession. The person claiming right by adverse possession must show such possession as was exclusive besides being adequate in continuity, publicity and extent. Act of possession must be accompanied by requisite animus or every case. The requirements to possession adverse may vary according to the facts and circumstances of a particular case or the relationship between the parties. Under certain circumstances particular acts may amount to ouster of others but if there is certain relationship between the parties such acts may not be in other cases amount to dispossession ouster. In determining the question of adverse possession Court has to take in consideration the facts of each case and the circumstances under which right by adverse possession is claimed."
15. There is no quarrel with the principles laid down in the aforestated decision. However from a perusal of the decision in entirety, it would appear that it flows from different perspective and facts of the case has no application to the facts of the present case.
16. In the above perspective, it leaves no manner of doubt that the defendant and his ancestors have been in actual physical, visible, exclusive and continued possession since 1927 and plaintiff appellant can be said to have been cognizant of actual physical possession at least since 11.5.1964 the date on which his application for mutation came to be rejected and by this reckoning, it can safely be held that the defendant has been in actual physical and hostile possession well within the knowledge of plaintiff and by this reckoning, his title by adverse possession has matured. The two substantial questions aforestated are answered accordingly in the light of the above discussion.
17. No other substantial questions have been pressed into service.
18. As a result of foregoing discussion, the appeal fails and is accordingly dismissed. There shall be no order as to costs.