1. This Appeal under Section 100 of the Code of Civil Procedure is by the original plaintiff who succeeded in his suit but lost in first appeal filed by the respondents-defendants.
1.1. The parties shall be referred as per their original status in the suit proceedings.
2. The plaintiff filed Regular Civil Suit No.33 of 1992 for declaration that the suit property bearing Survey No.234/4, admeasuring 16 gunthas situated in the revenue limits of Latipar village, Taluka Dhrol, District Jamnagar is of his ownership and for recovery of possession of the said property from the defendants and also for permanent injunction restraining the defendants from interfering with possession of the open Vada land of said survey number.
3. It is the case of the plaintiff that the plaintiff is owner of the suit land whereon he has constructed a house and given to the defendants by way of permissive use. It is further averred that the open land of the said survey number remained with the plaintiff and the defendants were permitted to use two houses in the Vada land. It is further case of the plaintiff that before about one and half months, the plaintiff was prevented from entering upon the Vada land and therefore, the plaintiff gave notice dated 6.5.1991 cancelling permission given to the defendants to use the suit property and to handover possession of the suit property. Since the defendants did not handover possession of the suit property, the suit is required to be filed.
4. The suit was resisted by the defendants by filing written statement at Exh.12, denying possession and ownership of the plaintiff and also denying that the defendants were given the suit land as and by way of permissive use by the plaintiff. It is also stated in the written statement that the value of the property was not Rs.4,000/-, however taking such value to be the value of the property and to put an end to the dispute, the defendants are ready to pay Rs.4,000/-, being the value of the property, for the plaintiff to lift or waive his right to the suit property. Lastly, in the written statement, it is stated that true facts are that the defendants have been in possession of the suit property for last 20 years, which is known to everybody, including the plaintiff, and therefore, even by way of adverse possession, the defendants have become owners of the suit property.
5. On the basis of the pleadings, Trial Court framed issues at Exh.15. Two of the main issues framed are, (1) Whether the plaintiff proves that the plaintiff is owner of the suit property ? and (2) Whether the defendants prove that the defendants have become owner of the suit property by adverse possession ? The Parties adduced oral as well as documentary evidence. Trial Court on appreciation of the evidence on record came to the conclusion that the plaintiff is owner of the suit property and the defendants have failed to prove that they have become owners of the suit property by adverse possession. On such conclusion, Trial Court allowed the suit of the plaintiff and declared the plaintiff to be the owner of the suit property and ordered the defendants to handover peaceful and vacant possession of the suit property to the plaintiff and also passed permanent injunction restraining the defendants from causing any obstruction or interference with the possession of Vada land of the plaintiff.
6. Being aggrieved by the above-said judgment and decree, the defendants preferred Regular Civil Appeal No.63 of 1998. Appellate Court framed three points for determination, viz.:
(1) Whether Trial Court has committed an error in holding the plaintiff to be owner and in possession of the suit property ?
(2) Whether Trial Court has committed an error in holding that the suit property was given to the defendants by way of permissive use ?
(3) Whether Trial Court has committed an error by holding that the defendants have not become owners of the suit property by adverse possession ?
7. On appreciation of the evidence available on record, Appellate Court came to the conclusion that the defendants have run flour mill for long time in the suit property for which, defendants were also given electric connection by the Electricity Board and that the defendants made new houses in place of old houses and started flour mill therein and therefore, the defendants have acted adverse to the ownership right of the plaintiff, which would establish hostile title of the defendants against the plaintiff and the plaintiff has not taken further any action. Learned Appellate Judge recorded further finding of fact that possession of the defendants on the suit property is established for a period of more than 12 years. On the basis of the above-said findings of fact, learned Appellate Judge ultimately allowed the appeal and reversed the judgment and decree passed by learned Trial Judge by judgment and decree dated 7.5.1999. It is this judgment and decree of the first Appellate Court which is under challenge before this Court in this appeal.
8. This appeal was admitted by order dated 19.7.2000 on the following substantial question of law:-
“Whether the lower appellate Court has misread the evidence adduced by the parties in the trial Court and on the basis of that evidence wrongly believed the case of adverse possession put forward by the defendants and recorded the erroneous decree on conjectures and surmises and without any cogent and reliable evidence ?”
9. I have heard learned advocates for the parties.
10. Learned advocate Shri R.C. Kakkad for the appellant submitted that the judgment and decree passed by the learned Appellate Judge is on wrong reading of the evidence on record and therefore, it is erroneous. Mr. Kakkad submitted that once the Trial Court had properly appreciated the evidence on record, it was not open to the learned Appellate Judge to reverse the judgment and decree passed by the Trial Court unless the Appellate Court was of the opinion that appreciation of the evidence done by the Trial Court was so erroneous that prudent man would not reach to conclusion reached by Trial Court on the basis of such appreciation of the evidence. Mr. Kakkad further submitted that when the Appellate Court has not given concrete reasons for overturning the findings recorded by the learned Trial Judge on the basis of appreciation of the evidence, another way of reading the evidence could not be a ground for taking different view, especially when the Trial Court has taken pain to scan each and every evidence available before it. Mr. Kakkad submitted that the finding recorded by the learned Appellate Judge that the defendants have been in possession of the suit property for long time is on the basis of the misreading of the evidence on record. He submitted that though there is a clear evidence of the plaintiff that the suit property was given to the defendants by way of permissive use after 1982, still learned Appellate Judge has recorded contrary findings though the defendants have not led any concrete evidence to establish that their possession of the suit premises has been for more than 20 years. Mr. Kakkad also submitted that though it was not a case of the defendants that the defendants ever run flour mill in the suit property, still learned Appellate Judge observed that the defendants have run flour mill in the suit property for long time and on such basis, learned Appellate Judge has recorded finding that the defendants have set up hostile title against the plaintiff. Mr. Kakkad further submitted that when the defendants have come up with a plea that they have been in possession of the suit property for last more than 20 years, it is strictly for them to prove such plea taken in their written statement which the defendants have failed to prove and therefore, learned Appellate Judge ought not to have interfered with the findings of fact recorded by the learned Trial Judge. Learned advocate Mr. Kakkad, in support of his arguments, also relied upon the decision of the Hon’ble Supreme Court in the case of Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumari Sharma and others reported in AIR 1996 SC 869.
11. In reply, learned advocate Ms. Sejal Mandavia appearing for the defendants submitted that learned Appellate Judge has recorded finding of fact about long possession of the defendants on independent appreciation of the oral and documentary evidence available on record and therefore, this Court while exercising the powers under Section 100 of the Code of Civil Procedure may not interfere with such finding of fact recorded by the learned Appellate Judge. She submitted that learned Appellate Judge has given cogent reasons for disturbing the findings of fact recorded by the Trial Court. She further submitted that when the plaintiff has not given clear evidence as to when the suit property was given to the defendants for permissive use, learned Trial Judge was not justified in passing the decree against the defendants on the ground that the defendants have failed to prove their plea of adverse possession. Ms. Mandavia further submitted that learned Appellate Judge has appreciated the evidence as regards electric connection obtained by the defendants to run the flour mill in the suit property and also appreciated the evidence as regards long possession for more than 20 years of the defendants and then came to the conclusion that the defendants were justified in putting forward the plea of adverse possession and the defendants have successfully proved such plea and on such appreciation of evidence by the Appellate Court, no fault could be found and therefore, this Court may not interfere with the judgment and decree passed by the learned Appellate Judge.
12. I have perused the judgment and decree passed by the Courts below as well as the record and proceedings of the case.
12.1. The Courts below have concurrently found the plaintiff to be the owner of the suit property. Learned advocate for the respondents has, therefore, rightly not made any grievance about the finding of fact recorded by the Courts below as regards title of the plaintiff to the suit property.
12.2. Question then remains as to whether the defendants became owners by adverse possession or not ? Trial Court on appreciation of the oral and documentary evidence came to the conclusion that the plaintiff has got the property in his name in the year 1980 on his sisters’ lifting/ waiving their rights in the property. Revenue entries as regards waiving of sisters’ right came to be certified by the competent authority and, therefore, there is no reason not to believe evidence of the plaintiff that suit property was given to the defendants by way of permissive use after 1982. Trial Court has further recorded that the plaintiff had also raised objection before the City Survey in the year 1987 as regards making of entry in respect of the suit property in the city survey record and then the plaintiff filed suit in the year 1992. Thus, within 10 years, the plaintiff filed suit for recovery of possession and therefore, plea of the defendants as regards adverse possession could not be accepted. Trial Court further recorded that defendant No.1 gave evidence that the suit property belonged to the ancestors of the defendants and it has been in possession of defendants for 70 years to 100 years but, the defendants have failed to prove such long possession. Trial Court has further found that the defendants have deposed that the defendants have got other 12 houses and in the application for electric connection, Survey No,234/4 of the suit property is not found. Trial Court has also considered certificate issued by the Talati of the village, wherein also, Survey No.234/4 of the suit property is not mentioned. Trial Court has also considered evidence of defendant No.1 who stated that suit property came to the share of the defendants in partition between the family members, and recorded that in the document of partition, Survey No.234/4 is not found. On such appreciation of the evidence by the Trial Court, Trial Court came to the conclusion that defendants have failed to prove plea of adverse possession.
13. On the other hand, learned Appellate Judge observed that the plaintiff has not stated in which year the plaintiff had given the suit property to the defendants for permissive use. It is also observed that it is not believable that the plaintiff would give suit property to the defendants without charging any rent. Learned Appellate Judge further recorded that electric connection taken by the defendants for running flour mill was disconnected on 10.8.1989 and therefore, it is proved that the defendants were running flour mill in the suit property till 10.8.1989 and the finding recorded by Trial Court that it is not proved that flour mill was in Survey No.234 was not correct. Learned Appellate Judge has observed that from the certificate of Talati, flour mill was in house No.101 and the same thing was found in the application for electric connection made by the defendants. The said application for electric connection was approved on 14.11.1983 and from 14.11.1983 till 1989, the defendants run flour mill in the suit property. Therefore, it is proved that for long time, the defendants have run flour mill in the suit property and thus the defendants have remained successful to prove their adverse possession. Appellate Court has further observed that when the defendants made two new houses in place of old houses in the Vada land and started flour mill, the said act of the defendants was hostile act against the plaintiff and by such act of the defendants, the defendants have established their hostile title to the suit property against the plaintiff. Learned Appellate Judge ultimately recorded that the defendants have been in possession of the suit property for more than 12 years and therefore, they have become owners of the suit property by adverse possession. On such findings of fact and ultimate conclusion, learned Appellate Judge allowed the appeal and reversed the decree passed by the Trial Court.
14. It is well settled principle of law that jurisdiction of the Appellate Court is though like that of the Original Court, to appreciate the evidence available on record, but when the Trial Court has appreciated the evidence on record and recorded a finding of fact, Appellate Court would disturb such finding of fact only on finding that appreciation of the evidence by the Trial Court was erroneous or that there was total misreading of the evidence done by the Trial Court while appreciating the evidence. If the Trial Court is found to have properly appreciated the evidence available on record and taken possible view of the matter, first Appellate Court would not be entitled to interfere with the findings of fact recorded by the Trial Court unless the Appellate Court gives cogent reasons to differ with the appreciation of evidence done by the learned Trial Judge.
15. I have already discussed above the consideration and appreciation of the evidence available on record by both the Courts below. Now, looking at the reasoning given by the learned Appellate Judge for disturbing the findings recorded by the learned Trial Judge, I find that learned Appellate Judge has failed to consider that suit property came in the name of the plaintiff only in the year 1980 and it is specific evidence of the plaintiff in his deposition that suit property was given to the defendants after 1982.
16. I also find that learned Appellate Judge has placed heavy reliance on the fact of running flour mill and considered the same as strong proof of holding the suit property adverse and hostile to the plaintiff by the defendants. For this purpose, learned Appellate Judge also placed reliance on the certificate issued by the Talati. This evidence of running flour mill was considered by the learned Trial Judge and learned Trial Judge found, in my view rightly, that the flour mill is not established to have been run in the suit property. Application for electric connection to run flour mill does not contain Survey number of the suit property. In the application, House No.101 is stated. Learned Trial Judge has rightly found that when it is the case of the defendants themselves that the defendants have got more than 12 houses and when Survey No.234/4 is not mentioned in the application, it is not proved that flour mill was run in the suit property. Even apart from this, what I find is that the electric connection was asked for by the defendants in the year 1983 and it is specific case of the plaintiff that the suit property was given to the defendants after 1982. Suit is filed in the year 1992. Therefore, running of flour mill in the suit property cannot be an evidence to establish adverse possession of the defendants. At this stage, it is required to be noted that defendant No.1 in his deposition at Exh.33 stated that the suit property, being Survey No.234/4, came into their share in partition. With the said deposition, document of partition at Exh.35 is produced, which is dated 16.6.1969. I have gone through the said document. The said document refers partition of the properties of Survey Nos.313, 1031, 1061/2 and 1205/4. There is no reference of Survey No.234/4. There is a reference about houses owned by the ancestors of the defendants and partition of such houses between the family members. It is required to be noted that the defendants have all throughout claimed that suit property originally belonged to their ancestors and the defendants have inherited such suit property and have been in possession for last 70 years. From the evidence of defendant No.1 himself, it is clearly proved that the suit property was never of the ownership of the ancestors of the defendants. Therefore, defendant No.1 has failed to substantiate his statement in the deposition that the defendants have been in possession of the suit property for last more than 70 years. At this stage, it is required to be noted that in the written statement, the defendants have stated that defendants have been in possession of the suit property for last 20 years. Thus, the defendants have been conveniently taking contrary stand as regards their possession of the suit property. Except bare word of the defendants, it is not found that the defendants have been in possession of the suit property for more than 12 years. As per the law settled by the Hon’ble Supreme Court in the case of State of Haryana Vs. Mukesh Kumar and others reported in (2011)10 SCC 404, claim of adverse possession is a negative right and a person pleading such claim of adverse possession has to establish all facts necessary to establish adverse possession. No equity would arise in favour of claim by adverse possession. In the case of Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumari Sharma and others reported in AIR 1996 SC 869, the Hon’ble Supreme Court has in para 36 observed as under:-
“36. In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. For all the above reasons, the plea of limitation put forward by the appellant, or by Defendant Nos.2 to 5 as the case may, be is rejected.”
17. Having perused the deposition of the plaintiff at Exh.20, evidence of the defendant No.1 at Exh.33 with certificate of the Talati and document of electric connection, I find that plaintiff’s clear evidence of giving suit property to the defendants after 1982 has remained unchallenged and the defendants’ evidence does not establish that the defendants have been in possession of the suit property for last more than 20 years, as alleged by the defendants in the written statement. Certificate of the Talati at Exh.53 does not refer survey number of the suit property. Last certificate issued by the Talati pending the suit at Exh.58, records that the resolution passed by the Panchayat for flour mill is not found from the record of Panchayat.
18. Though this Court while exercising the powers under Section 100 of the Code of Civil Procedure is not required to go in deep to find out whether the assessment of evidence done by the Courts below is proper or not. However, when the decree of the Trial Court is reversed by learned Appellate Judge, it becomes duty of this Court to make a close scrutiny of evidence available on record to ascertain, whether appreciation done by the Trial Court was on correct reading of the evidence and also to find out whether Appellate Court is justified in recording contrary findings of fact if Trial Court has not committed any error in appreciating the evidence available on record.
19. On perusal of oral as also documentary evidence available on record and keeping in mind appreciation of the evidence done by the learned Trial Judge, I am of the view that learned Appellate Judge has committed serious error in interfering with the judgment and decree passed by learned Trial Judge as learned Appellate Judge, in my view, has recorded findings and ultimate conclusion in appeal on misreading of evidence available on record.
20. In view of the above, judgment and decree passed by learned Appellate Judge cannot stand scrutiny of law and the same is required to be quashed and set aside and the appeal is required to be allowed. Accordingly, on the substantial question of law formulated by this Court while admitting the appeal, this Appeal is allowed. Judgment and decree passed by learned Appellate Judge is quashed and set aside and judgment and decree passed by learned Trial Judge is restored.
21. Record and proceedings be sent back to the concerned Trial Court.
22. After dictation of judgment, learned advocate Ms. Mandavia for the respondents has requested to stay and suspend the implementation of this judgment for a period of six weeks to enable the respondents to approach the higher Court. The request is accepted. The implementation of this judgment shall remain stayed and suspended for a period of six weeks from today.
omkar Sd/-
(C.L. SONI, J.)