JUDGMENT Shiv Charan, J.
1. The instant second appeal has been instituted against the judgment and decree dated 28.9.2007, passed by Addl. District Judge, Court No. 15, Meerut in Civil Appeal No. 38 of 1995, Smt. Sumrati and Ors. v. Mule and Ors. By the impugned judgment and decree learned appellate court dismissed the appeal of the appellants.
2. perusal of the judgment of the courts below shows that Mangloo deceased filed Original Suit No. 168/1988 in the court of Munstf, Mavana, Meerut for injunction and for recovery of possession from the defendants of the property in dispute. It has been alleged in the plaint that the property in dispute belonged earlier to his father Surja and after the death of father Surja the plaintiff inherited the property a house existing on the property in dispute. Afterwards the house collapsed and now the plaintiffs appellant wanted to reconstruct the house. The defendants have no concern and connection with property in dispute. But the defendant wants to occupy the property in dispute illegally and forcibly. That the defendants also constructed a house over the property in dispute. A forged and fraudulent sale deed was also prepared in favour of defendant Nos. 1 to 4 executed by defendant No. 5 Smt. Atro.
3. The defendant respondent contested the suit and filed written statement denied the allegation of the plaint. It has further been alleged that the father of defendant No. 5, namely, Sukhi was the owner in possession of the property in dispute and he died 10 years earlier. After the death of Sukhi his only daughter defendant No. 5 inherited the property. In the rainy season the mud house collapsed and the plaintiff proposed to purchase the disputed house in consideration of Rs. 1,500 from the defendant No. 5. That the defendant did not agree to this proposal. Plaintiff created circumstances so that any other person may not purchase the house. Being compelled defendant No. 5 executed the sale deed of the disputed house in favour of defendant No. 1 in consideration of Rs. 2,400. That the defendant No. 1 had constructed the house over the property in dispute and the present suit has been filed due to mala fide intention.
4. Learned Munsif Mavana, Meerut framed five issues for disposal of the suit and both the parties adduced oral as well as documentary evidence in support of their contention. After considering the entire evidence of the parties learned Munsif dismissed the suit of the plaintiff-appellant with costs. On being aggrieved from the judgment of the trial court the plaintiff instituted Civil Appeal No. 38 of 1995 and this civil appeal was also dismissed by judgment and decree dated 28.9.2007 and afterwards the instant second appeal has been instituted.
5. I have heard Sri Satish Mandhyan learned Counsel for the appellant and also perused the entire material on record.
6. Learned Counsel for the appellant argued that it was an undisputed fact that Surja father of Manglu was the owner in possession of the property in dispute alongwith other property. That Sukhi was not the son of Surja but Sukhi was the son of the wife of Surja namely, Gagaiya that after marriage Sukhi Ram also came with his mother to live at the house of Surja. That Surja executed a Will of his entire immovable property on 8.3.1940 in favour of Manglu his son and that this Will was acted upon and after the death of Surja on 4.9.1947 Manglu inherited the entire property on the basis of the Will. Hence no property was delivered to Sukhi by Surja by the Will and as Sukhi was not son of Surja hence he will also not inherit in the property. But as Sukhi was the son of Gagaiya wife of Surja from her earlier husband hence Sukhi Ram continued to live in the house as licensee.
7. That the court below recorded-afinding that as Sukhi Ram continued in possession of the property in dispute hence he perfected title by adverse possession. That this finding of court below is perverse and unjustified. When the possession of Sukhi Ram was permissive as a licensee, hence no question arises of perfecting of title by adverse possession. No evidence was produced on behalf of the defendants to show that the possession of Sukhi was hostile and adverse to Surja and Manglu. Whereas in the record the name of Manglu was entered as owner in the record of Nagar Palika etc. He also argued that as perverse finding was recorded by the court below hence the substantial question of law is involved. Learned Counsel framed three substantial question of law and all the questions are on the point that whether in the circumstances of the case the possession of Sukhi, was hostile or permissive as licensee.
8. I have considered the submissions of learned Counsel for the appellant and also perused the judgment of courts below as well as the substantial question of law formulated by learned Counsel for the appellants. Undisputedly Sukhiram was not the son of Surja rather he was the son of Gagaiya wife of Surja from earlier husband. It is also undisputed fact that when Gagaiya married with Surja then Sukhi Ram also came to live with his mother in the house of Surja. It is also undisputed fact that Manglu the predecessor in interest of the plaintiff was the son of Surja and it is also undisputed fact that Surja executed a Will of his entire immovable property in favour of Manglu. It is also undisputed fact that the Will dated 8.3.1940 was acted upon. The appellate court recorded a finding to this effect. In the present case, the main controversial point is whether in these circumstances Sukhi Ram had perfected title by adverse possession. It is also undisputed fact that Sukhi Ram lived in the disputed house during his life time and he died in the year 1978 and the present suit was instituted in the year 1988 after ten years. It is also undisputed fact that Sukhi Ram had only one daughter Smt. Atro and she was married during life time of Sukhi Ram. It has been argued by learned Counsel for the appellant that in these circumstances there is no question of perfecting title by adverse possession by Sukhi Ram and during his life time he lived in the disputed house with the permission of Manglu and there is no evidence and no circumstance has been produced to show that the possession of Sukhi Ram was hostile and in the circumstances only inference can be drawn that the possession of Sukhi Ram was only permissive as licensee.
9. It is an undisputed fact that Surja died in the year 1947. There is a reference in the judgment of the courts below that Sukhi Ram instituted Original Suit No. 87 of 1949 for declaration and the suit was decided on 20.2.1950. But in the suit there is no mention of the house in question. Rather there is mention of the disputed house in the Will executed by Surja. The suit filed by Sukhi Ram was dismissed and no declaration was granted in favour of Sukhi Ram. Even in the year 1949 Sukhi Ram was living in the disputed house and at that time Surja was not alive. He died in the year 1947. Under these circumstances when Sukhi instituted a suit in the year 1947 claiming decimation regarding other property.
10. Then at that time he was living in ,me property of dispute and it cannot be said that after 1949 also the possession of Sukhi had been permissive. It means after the death of Surja, Sukhi Ram lived in the disputed house in his own rights openly and uninterruptedly. It is a different matter that in the record the name of Manglu continued. But it is a fact that Manglu got this property from his father by the Will and father died in the year 1947 the appellants are also required to prove that even after the death of Surja the possession of Sukhi remained as a licensee. There is no circumstance to presume that the possession of Sukhi remained as a licensee. Hence, for a period of more than 28 years Sukhi lived in the house after the death of Surja. Much has been argued by learned Counsel for the appellants that the defendants were required to prove that the possession of Sukhi was adverse hostile to Manglu. He also argued that court below recorded a finding for perfecting title by adverse possession on the basis of surmises and conjectures and that when Sukhi died in the year 1978 and the suit was filed in the year 1988 then how possession remained of defendant No. 5 over the property in dispute and it cannot be presumed that defendant No. 5 inherited the property as a daughter of Sukhi. He also argued that if it may be presumed that Sukhi perfected title by adverse possession then this fiction came to an end on his death in the year 1978 and thereafter this property will not be available to Smt. Atro by perfecting title by adverse possession. But I disagree with the argument of learned Counsel for the appellant. If Sukhi Ram perfected title by adverse possession on the basis of continuous possession uninterruptedly and openly then by no subsequent event this presumption will come to an end. And if Sukhi Ram perfected the title prior to his death then his heirs Will inherit the property. Learned Counsel for the appellant cited T. Anjanappa and Ors. v. Somalingappa and Anr. 2006 (65) ALR 151 (SC) : 2006 (4) AWC 3638 (SC) and Hon'ble Apex Court held 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 rights but denies them. The principle of law is firmly established that 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. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced 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 the owner's right excluded him from the enjoyment of his property.
11. Learned Counsel for the appellant also cited P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. . The Hon'ble Apex Court in this Judgment also laid down the ingredient of adverse possession. I have perused the judgment of Hon'ble Apex Court in order to ascertain whether in these circumstances the possession of Sukhi may be considered as a hostile and adverse possession. The Hon'ble Apex Court held that the possession must be open continuous and hostile. In the present case this is an undisputed fact that during his entire life time Sukhi Ram remained in possession of the property in dispute. Hence, it is established that the possession of Sukhi Ram was continuous after the death of Surja and naturally the possession was open. After filing a suit for declaration in the year 1949 against Manglu the possession cannot be considered as permissive because he filed a suit for declaration regarding other property and there is no evidence that after 1950 Manglu asserted his rights as owner. The entry in the name of Manglu over the property in dispute is not going to disprove the fact of adverse possession of Sukhi. Moreover, I am also of the opinion that this is a finding recorded on facts that whether the possession of Sukhi Ram was adverse and hostile or not and both the courts below after considering the evidence of the parties recorded a definite finding that the possession of Sukhi was adverse and hostile. When a finding of fact has been recorded by the courts below hence the different findings cannot be recorded by this Court on facts and in the circumstances of the case in my opinion no substantial question of law is involved. I am of the opinion that there is no justification to admit this second appeal on the substantial question of law and the points of law formulated by the appellant's counsel cannot be called as substantial question of law. I am of the opinion that there is no justification to admit this appeal and is liable to be dismissed as summarily.
12. The second appeal is dismissed summarily at the admission stage.