NARENDRA & ORS.versusAJABRAO S/O NARAYAN KATARE (D) THROUGH LRS.

                             [2017] 1 I S.CR. 746


A                           NARENDRA & ORS.
                                      v.
        AJABRAO SIO NARAYAN KATARE (D) THROUGH LRS.
                    (Civil Appeal Nos. 3533-3534 of2008)
B                            OCTOBER 26, 2017
       [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.J
           Code of Civil Procedure, 1908 - ss.96, JOO - Appellants-
    plaillliffe purchased a house - Original defendant (predecessor-
c in-interest    of the respondents) was living in two rooms of the said
     house even before its purchase by the appellants - Suit filed by
     appellants for declaration of their title over the entire house and
  · for possession of the portion of the house, which was occupied by
     the original defendant - Trial court dismissed the suit - First appeal
     by appellants was allowed - Second appeal by original defendant,
D allowed by High Court - On appeal, held: High Court decided the
    second appeal like a first appeal u/s. 96 inasmuch as it went on
     appreciating the entire oral evidence and reversing the findings of
    fact of the first appellate court on the question of adverse
    possession - Such approach of High Court was not permissible in
     law - Impugned order is set aside - Judgment of the first appellate
E
     court, which rightly decreed the appellants' suit against the
     respondents is restored - Adverse Possession.
           Adverse Possession - Nature of the plea - Suit filed by
  appellants, inter alia for possession of the portion of the house
  occupied by the original defendant - Plea of adverse possession
F
  set up by original defendant claiming to have been in possession of
  the house much prior to its purchase by appellants - Held: Plea of
  adverse possession is a plea based on facts - High Court has the
  jurisdiction, in appropriate cases, to interfere in finding of fact
  provided such finding is found to be wholly perverse or when ii is
G found to be against any settled principle of law or pleadings or
   evidence - Such errors constitute a question of law and empower
   the High Court to interfere - However, no such error is found in the
   i11sta11/ case more so when plea of adverse possession was neithei"
  proper~v pleaded nar made out.

H
                                     746
  NARENDRA & ORS. v. AJABRAO S/O NARAYAN KATARE                           747
                    (D) THR. LRS.

      Adverse Possession - Law of - Held: Akre possession, A
howsoever long it may be, does 1101 necessarily mean that it is
adverse 10 the true owner - In the instant case, the original
defendant failed to discharge the burden to claim owne1~'hip over
the suit property or its part,, to the exclusion of the whole world
including its true owners, by any documentary evidence.
                                                                          B
       Allowing the appeals, the Court
        HELD: I. The approach of the High Court in deciding the
  second appeal which resulted in dismissal of appellants' suit was
 wholly perverse and against the well settled principle of law
  applicable to second appeals and to the factual controversy             c
  involved in the case for the following the reasons. In the first
 place, the High Court decided the second appeal like a first appeal
  under Section 96 of the Code inasmuch as the High Court went
  on appreciating the entire oral evidence and reversed the 11ndings
  of fact of the First Appellate Court on the question of adverse
  possession. Such approach of the High Court was not permissible         D
  in law. Second, the High Court failed lo sec that a pica of adverse
  possession is essentially a pica based on facts. It was more so as
 it did not involve any question of law much less substantial
· <1uestion of law. This aspect of law was also overlooked by the
  High Court. Third, the High Court has the jurisdiction, in              E
  appropriate cases, to interfere in 11nding of fact provided such
  11nding is found to be wholly perverse to the extent that no judicial
  11crson could ever record such 11nding or when it is found to be
  against any settled principle of law or pleadings or evidence. Such
  errors constitute a question of law and empower the High Court
  to interfere. However, no such error is found here. Fourth, the         F
  High Court failed to sec that the pica of adverse possession was
  neither properly pleaded and nor made out by the respondents.
  [Paras 16-20] [751-H; 752-A-F)
       2. Mere possession, howsoever long it may be, does not
necessarily mean that it is adverse to the true owner and the             G
classical requirement of acquisition of title by adverse possession
is that such possessions arc in denial of the true owners' title.
[Para 23] [753-A-B]

                                                                          H
748            SUPREME COURT REPORTS                     [20 l 7] 11 S.C.R.


A           T. A1yanqppa & Ors. v. Somalingappa & Anr. (2006) 7
            SCC 570 : [2006] 5 Suppl. SCR 200 - relied on.
            3.1 There Is no merit in the plea of the respondents as
      regards to adverse possession for the following reasons. There
      was no assertion on the part of the original defendant to claim
B     ownership over the suit property or its part to the exclusion of
      the whole world including its true owners. Second, it was not
      pleaded as to when and in what manner such assertion began. In
      other words, it was not pleaded as to from which date so as to
      enable the Courts to count the period of 12 years or 40 years, as
      claimed by the :defendant, bis assertion began which got converted
c     into his absolute right of ownership over the suit house on the
      expiry of 12 years. Third, it was also not pleaded as to whether
      the assertion of ownership right was against the public at large
      or it was against its true owners, i.e., (predecessor-in-title of the
      appellants) or/and against the appellants and whether it was to
D     their knowledge and, if so, was it open, hostile, express,
      continuous, peaceful and without any interruption from anyone
      including its true owners for a period of more than 12 years. Lastly,
      the burden being on the original defendant to plead and prove
      the adverse possession, he failed to discharge the burden by any
      documentary evidence. (Paras 25-28] [753-F-H; 754-A-B]
 E
         3.2 The present was a clear case of permissive possession
   where original defendant was allowed to occupy the two rooms in
   the suit house by the appellants' predecessor when they were
   the owners of suit house without conferring on him any kind of
   right, title and interest either in the suit house or/and in bis
 F possession. The appellants, on becoming the owners, withdrew
   the permission, which they had a right being the owners on the
   strength of registered sale deed, where after original defendant's
   possession in the part of suit house became unauthorized. He
   was, therefore, liable to restore the same to the appellants. [Paras
 G 29, 30( [754-C-DJ
         Chatti Konari Rao & Ors. v. Pa/le Venkara Subba Rao
         (2010) 14 SCC 316 : (2010] 15 SCR 923 - relied on.
                           Case Law Reference
   [2006] 5 Suppl. SCR 200         relied on             Para 23
 H    [2010] 15 SCR 923               relied on             Para 24
   NARENDRA & ORS. v. AJABRAO S/0 NARAYAN KATARE                             749
                     (D) THR. LRS.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3533-                  A
 3534of2008
       From the Judgment and Order dated 28.04.2003 in Second Appeal _
 No. 48 of 1992 & Order dated 25.08.2005 in Review Application No.
 235 of 2003 of the High Court of Judicature at Bombay, Nagpur Bench,
 N.~                                                                         B
       Vi vek Solshe, Amo! B. Karan de, Ad vs. for the Appellants.
       Sachin Pahwa, Chander Shekhar Ashri,Advs. for the Respondents.
       The Judgment of the Court was delivered by
       . ABHAY MANOHAR SAPRE, J. I. These appeal arc filed by C
 the plaintiffs against the final judgment and order dated 28.04.2003 passed
 by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
 Second Appeal No.48 of 1992 whereby the Single Judge of the High
 Court while exercising jurisdiction under Section l 00 of the Code of
 Civil Procedure, 1908 (hereinafter referred to as "the Code") allowed D
 the appeal_ filed by the original defendant, set aside the judgment and
 order passed by the appellate Court and confirmed the judgment and
 decree passed by the Trial Court and dated 25.08".2005 in Review
 Application No.235 of2003 arising out ofjudgment/order dated28.04.2003
 passed in SA No.48of1992 by which the Review was also dismissed by
  the Single Judge.                                                          E
       2. Facts of the case lie in a narrow compass so also the issue
 involved in the appeals is very short. The relevant facts, however, need
 mention infra to appreciate the issue involved in the appeal.
        3. The appellants are the plaintiffs whereas the respondents are
                                                                             F
 the legal representatives of the original defondant-Ajabrao, who died
 during the pendency of the appeal before theHigh Court, in the civil suit
 out of which these appeals arise.
        4. The dispute relates to the part of house bearing Corporation
   number 898 (old) and 989/0-4 (new) situated in ward No. 29 (old) and
  -                                                                          G
  51 (New) Cir.17/23 Khatikpura Timki Nagpur (hereinafter referred to
· as "suit house").
       5. The suit house was originally owned and possessed jointly by
 Shri Narayan Janglujce Katare, Dokawdu Narayan Katare, Ajabrao
 Narayan Katare and Kamlakar Narayan Katare. All these four persons,
                                                                             H
750             SUPREME COURT REPORTS                           (2017] 11 S.C.R.


A     were the grand father, father and two uncles of the plaintiffs. These
      four persons sold the suit house by registered sale deed dated 21.10.1970
      to one Laxminarayan Brijlal Jaiswal for a sum ofR;;.30,000/-. However,
      the appeUants(p1aintiffs), by a registered sale deed dated 11., 0.1985,
      purchased the suit house from Laxminarayan Brijlal Jaiswal for a sum
      ofRs.55,000/-.
B
             6. The original defendant was living in two rooms of the suit house
      even bdore the purchase of the suit house by the appellants. The
      appellants after purchasing the suit house requested Ajabrao to vacate
      the portion of the suit house, which was in his possession. Ajabrao refused
      to vacate the rooms and instead denied the appellants' title over the suit
c     house.
            7. This gave rise to filing of the civil suit bearing Civil Suit No.1510
      of 1986 by the appellants on 29.08.1986 against Ajabrao. The suit was
      for a declaration of appellants' title over the entire suit house and
      possession of the portion of the suit house, which was in possession of
D     Ajabrao.
             8. The suit was founded on the alkgations . inter alia, that the
      appellants are the owners of the suit house having purchased the same
      vide registered s<ik deed dated 11. I 0.1985 from Laxminarayan Brijlal
      Jaiswal. It was alleged that Ajabrao was in permissive possession of the
 E    portion of the suit house prior to appellants' purchasing the suit house.
      The appellants, having revoked the penuission and rcqucstcdAjabrao to
      vacate the portion of the suit house, who did not vacate, the appellants
      were entitled to claim possession of the part of the suit house from
      Ajabrao on the basis of their title. A relief for damages at the rate of
F     Rs.100/- per month for use and occupation of the part of the suit house
      was also claimed against Ajabrao.
              9. The defendant filed his written statement. He denied appellants'
      title and claimed that he has been in possession of the part of the suit
      house for 40 long years much prior to the appellants' purchasing the suit
G
      house. He alleged that the appellants' predecessor-in-title never sold
      the suit house to Laxminarayan Brijlal Jaiswal but they had mortgaged
      the suit house with Laxminarayan Brijlal Jaiswal. He also alleged that
      his possession is adverse to the appellants and Laxminarayan Brijlal
      Jaiswal on the strength ofhis long and continuous possession of 40 years.
      He also raised the pica of maintainability of the suit on the ground of
H     non-joinder of necessary parties.
  NARENDRA & ORS. v. AJABRAO S/O NARAYAN KATARE                                751
      (D) THR. LRS. [ABHAY MANOHAR SAPRE, J.]

       10. The Trial Court framed the issues. Parties led evidence. By         A
judgment/decree dated 22.03.1988, the T.rial Court dismissed the suit. It
was held that the appellants are the owners of the suit house except
portion of the Sllit house, which is in possession of Ajabrao. It was held
that Ajabrao has perfected his title by adverse possession over the portion,
which was in his possession.
                                                                               B
       11. The appellants, felt aggrieved, filed first appeal before the 7'"
Additional District Judge. By judgment/decree dated 22. I 0.1991, the
Additional District Judge allowed the appeal, set aside the judgment/
decree of the Trial Court and decreed the appellants' suit. The first
Appellate Court held that the appellants are the owners of the suit house
including that portion, which was in possession of Ajabrao. It was also        c
held that Ajabrao failed to prove his title over the portion, which was in
his possession by adverse possession. It was also held that he was only
in permissive possession and such permission having been withdrawn
by the appellants, he had to vacate the said portion of the suit house.
The First Appellate Court also passed a money decree for Rs. l 000/- as        D
damages for use and occupation of the portion of the suit house together
with interest at the rate of6% p.a. from the date of filing of the suit till
realization and Rs. I 00/- towards notice charge.
        12. Ajabrao, felt aggrieved, filed second appeal under Section I 00
of the Code before the High Court. By impugned judgment, the High              E
Court allowed the appeal, set aside the judgment and decree of the First
Appellate Court and restored that of the Trial Court. In other words, the
effect of the order of the High Court is that the appellants' (plaintiffs')
suit is dismissed.
       13. Felt aggrieved of the judgment of the High Court, the plaintiffs    F
have filed these appeals by way of special leave before this Court.
     14. Heard Mr. Vivek Solshe, learned counsel for the appellants
and Mr. Sachin Pahwa, learned counsel for the respondents.
       15. Having heard the learned counsel for the parties and on perusal
of the record of the case, we .are constrained to allow the appeals, set       G
aside the impugned order and restore the judgment/decree of the First
appellate Comt, which rightly decreed the appellants' civil suit against
the respondents.
       16. In our considered opinion, the approach of the High Court in
deciding the second appeal which resulted in dismissal of appellants' suit     H
752             SUPREME COURT REPORTS                           (2017] ll S.C.R.


A     is wholly perverse and against the well settled principle oflaw applicable
      to second appeals and to the factual controversy mvolved in the case as
      would be clear from our reasons set out hereinbelow.
             17. In the first place, we find that the High Court decided the
      second appeal like a first appeal under Section 96 of the Code inasmuch
B     as the High Court went on appreciating the entire oral evidence and
      reversed the findings of fact of the First Appellate Court on the question
      ofadverse possession. Such approach of the High Court, in our opinion,
      was not permissible in law.
             18. Second, the High Court failed to see that a plea of adverse
c     possession is essentially a plea based on facts and once the two couits,
      on appreciating the evidence, recorded a finding may be of reversal,
      such finding is binding on the Second Appellate Court. It is more so as it
      did not involve any question of law much less substantial question of
      law. This aspect of law was also overlooked by the High Court.

D             19. Third, the High Court has the jurisdiction, in appropriate cases.
      to interfere in finding of fact provided such finding is found to be wholly
      perverse to the ex1ent that no judicial person could ever record such
      finding or when it js found to be against any settled principle oflaw or
      pleadings or evideince. Such errors constitute a question of law and
      empower the High Court to interfere. However, we do not find any
 E    such error here.
            20. Fourth, the High Court failed to see that the plea of adverse
      possession was neither properly pleaded and nor made out by the
      respondents.
             21. The only averment is found in Para2 of the specific pleadings
 F
      of the written statement (page 44 of the SLP) which reads as under:
              "That moreover, the defendant since last 40 years is
              residing separately in the said house and is in continuous
              possession of his portion of the said house therefore, his
              possession is adverse to the owner, i.e., his father, said
 G
              Jaiswal and present plaintiff."
            22. What is "adverse possession" and on whom the burden of
      proof lies and lastly, what should be the approach of the Courts while
      dealing with such plea have been the subject matter oflargc number of
      cases of this Court.
 H
  NARENDRA & ORS. v.lAJABRAO S/O NARAYAN KATARE                              753
      (D) THR. LRS. [PiBHAY MANOHAR SAPRE, J.]

       23. In T.Anjanappa & Ors. vs. Somalingappa & Anr., (2006)             A
7 SCC 570, this Court held that mere possession, howsoever long it may
be, does not necessarily mean that it is adverse to the true owner and
the classical requirement of acquisition of title by adverse possession is
that such possessions are in denial of the true owners' title.
      24. Relying upon the aforesaid decision, this Court again in Chattl    B
Konati Rao & Ors. vs. Palle Vcnkata Subba Rao, (20!0) 14 SCC
316 in Para 14 held as under:
        "14. In view of the several authorities of this Court, few
        whereof have been referred· above, what can safely be said
        is that mere possession however long docs not necessarily c
        mean that it is adverse to the true owner. It means hostile
        possession which is expressly or impliedly in denial of the
        title of the true owner and in order to constitute adverse
        possession the possession must be adequate in continuity,
        in publicity and in extent so as to show that it is adverse
      · to the true owner. The possession must be open and hostile D
        enough so that it is known by the parties interested In the
        property. The plaintiff is bound to prove his title as also
        possession within twelve years and once the plaintiff
        proves his title, the burden shifts on the defendant to
        establish that he has perfected his title by adverse E
        possession. Claim by adverse possession has two basic
        clements i.e. the possession of the defendant should be
        adverse to the plaintiff and the defendant must continue
        to remain in. possession for a period of twelve years
        thereafter".
                                                                             F
       25. Applying the aforementioned principle oflaw to the facts of
the case on hand, we find absolutely no merit in the plca·ofrespomlents
for the following reasons.
       26. There is no assertion mi the part of the original defendant to
claim ownership over the suit property or its pait to the exclusion of the   G
whole world including its true owners. Second, it is not pleaded as to
when and in what manner such assertion began. In other words, it is not
pleaded as to from which date so as to enable the Courts to count the
period of 12 years or 40 years, as claimed by the defendant, his assertion
began which got converted into his absolute right of ownership over the
suit house Oil the expiry of 12 years.                                       H
754              SUPREME COURT REPORTS                         (2017] I l S.C.R.


A            27. Third, it is also not pleaded as to whether the assertion of
      ownership right was against the public at large or it was against its true
      owners, i.e., (pr¢deccssor-in-title of the appellants) or/and against the
      appellants and whether it was to their knowledge and, if so, was it open,
      hostile, express. continuous, peaceful and without any interruption from
      anyone including its true owners for a period of more than 12 years.
B
            28. Lastly, the burden being on Ajabmo (original defendant) to
      plead and prove the adverse possession, he failed to discharge the burden
      by any documentary evidence.
             29. In our considered opinion, it was a clear case of permissive
c     possession where Ajabrao was allowed to occupy the two rooms in the
      suit house by the appellants' predecessor when they were the owners of
      suit house without conferring onAjabrao any kind ofright, title and interest
      either in the suit house or/and in his possession.
             30. The appellants, on becoming the owners, withdrew the
D     permission, which they had a right being the owners on the strength of
      registered sale deed dated l l. l 0.1985, Ajabrao's possession in the part
      of suit house became unauthorized. He was. therefore. liable to restore
      the same to the appellants.
             31. We cannot, therefore, concur with the reasoning and the
E     conclusion arrived at by the High Court which, in our opinion, is neither
      factually and nor legally sustainable. It, therefore, deserves to be set
      aside.
             32. In the light of foregoing discussion, the appeals succeed and
      arc allowed. The impugned orders are set aside whereas the judgment/
      decree of the First Appellate Court dated 22. l 0.1991 passed by 7'"
 F
      Additional District Judge is restored. As a consequence, the appellants'
      suit stands decreed against the respondents as per First Appellate Court
      judgment/decree dated 22.10.1991 passed in Civil Suit No.132of1988.


      Di vya randcy                                                 Appeals allowL"<l,