Bombay High Court
Madhukar S/O Gulabrao Bondse vs Madhusudan S/O Gopalrao Sapkal And ... on 2 January, 2025
2025:BHC-NAG:4
10.sa.444.19.jud.doc 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.444 OF 2019
Appellant : Madhukar s/o Gulabrao Bondse,
(Ori. Plaintiff Aged about 60 years, Occu : Service,
on R.A. No.1) R/o House No.3633/23, Rameshwari, Nagpur.
- Versus -
Respondents : 1. Madhusudan s/o Gopalrao Sapkal,
(Ori. Defendants Aged about Major, Occu. Service.
on R.A.)
2. Pradip s/o Gopalrao Sapkal,
Aged about major, Occu. Service.
3. Suresh s/o Gopalrao Sapkal,
Aged about major, Occu. Service.
All r/o Near Gandhi Statute, Ganja Jamuna Road,
Gandhibagh, Nagpur.
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Mr. A.S. Deshpande, Advocate for the Appellant.
Mr. A.V. Lokhande, Advocate for the Respondents.
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CORAM : M.W. CHANDWANI, J.
RESERVED ON : 4th OCTOBER, 2024.
PRONOUNCED ON : 2nd JANUARY, 2025.
JUDGMENT :
The appeal is an exception to the judgment and decree passed by
the learned District Judge, Nagpur in R.C.A. No.319/2016 thereby setting
aside the judgment and decree of the trial Court dated 25/11/2016 passed in
R.C.A. No.812/2012 and dismissing the suit of the appellant.
02. The facts of the case in nutshell are as under :
I. One Jagannath Pailuji Gudatkar and Venubai Shrawanji Mendhe
purchased Plot No.23, admeasuring area 4000 sq.ft. at
Rameshwari, Mouza Babulkheda, Nagpur by registered sale-deed
dated 09/01/1947. The appellant purchased the eastern house
portion, admeasuring area 2000 sq.ft. of Plot No.23 from Venubai
by registered sale-deed dated 09/11/1979. It is the case of the
appellant that though he had purchased the half portion of Plot
No.23, he was handed over possession of the entire plot of 4000
sq.ft. The appellant then constructed a house thereon in the year
1979. Since then, the appellant is in continuous peaceful
possession over the entire suit plot without any interruption from
anybody including Jagannath, the co-owner or any of his family
members. Though, he had received a notice dated 22/05/1987
from defendant No.1-Smt. Kamal @ Shalinitai Sapkal to vacate
the suit plot i.e. western half portion of Plot No.23, the appellant
refused to vacate the plot. Again on 08/04/2005, respondent
No.3, the son of the original defendant No.1 asked the appellant
to vacate the suit plot. Apprehending dispossession, the appellant
filed a suit for declaration that he acquired title over the suit plot
by virtue of his adverse possession and for permanent injunction
restraining the respondents from disturbing his peaceful
possession over the suit plot.
II. Original defendant No.1 and respondent No.3 herein resisted the
claim of the appellant and came up with a case that the appellant
had been given the possession of eastern portion and not the
western portion of the suit plot. However, the appellant illegally
encroached upon the remaining half portion i.e. the suit plot
owned by the legal heir/nephew of deceased Jagannath and since
then they are in possession of the suit plot by erecting a
temporary structure thereon.
III. The trial Court after hearing the suit on merits, decreed the suit
of the appellant. Feeling aggrieved with the decree, the
respondents filed an appeal before the first appellate Court. After
finding that hostile and notorious title against the appellant and
thereafter continuous possession for twelve years has not been
proved by the appellant, the first appellate Court relying on the
case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and
another1 held that the adverse possession cannot be made a
sword but it can be used as a shield only as a defence in the suit
1 2014(4) Mh.L.J. 74
and, therefore, declaration of title by way of adverse possession
cannot be sought by filing a suit. On this ground, the appellate
Court reversed down the decree passed by the trial Court and
dismissed the suit. Feeling aggrieved with the judgment and
decree of the first appellate Court, the appellant is before this
Court.
03. The substantial questions of law framed vide order dated
10/10/2019 in this appeal are reproduced here.
(i) Whether the impugned judgment and order passed by the
Appellate Court is sustainable in view of latest position of
law enunciated by the Hon'ble Supreme Court in case of
Ravinder Kaur Grewal and others vs. Manjit Kaur and
others, reported in 2019 SCC OnLine SC 975, wherein it
has been categorically held that the plea of adverse
possession can be used by the plaintiff as a sword to
claim title in immovable property?
(ii) Whether the findings rendered by the Appellate Court
while reversing the decree passed by the Trial Court on
the question of adverse possession are perverse?
04. The first substantial question of law does not require deeper
consideration in wake of the decision in the case of Ravinder Kaur (supra),
wherein the Supreme Court in paragraphs 67 and 69 has held as under:
"67. We hold that a person in possession cannot be
ousted by another person except by due procedure of law and
once 12 years' period of adverse possession is over, even
owner's right to eject him is lost and the possessory owner
acquires right, title and interest possessed by the outgoing
person/owner as the case may be against whom he has
prescribed. In our opinion, consequence is that once the right,
title or interest is acquired it can be used as a sword by the
plaintiff as well as a shield by the defendant within ken of
Article 65 of the Act and any person who has perfected title by
way of adverse possession, can file a suit for restoration of
possession in case of dispossession. In case of dispossession by
another person by taking law in his hand a possessory suit can
be maintained under Article 64, even before the ripening of
title by way of adverse possession. By perfection of title on
extinguishment of the owner's title, a person cannot be
remediless. In case he has been dispossessed by the owner after
having lost the right by adverse possession, he can be evicted
by the plaintiff by taking the plea of adverse possession.
Similarly, any other person who might have dispossessed the
plaintiff having perfected title by way of adverse possession can
also be evicted until and unless such other person has perfected
title against such a plaintiff by adverse possession. Similarly,
under other Articles also in case of infringement of any of his
rights, a plaintiff who has perfected the title by adverse
possession, can sue and maintain a suit.
69. Resultantly, we hold that decisions of Gurudwara Sahab
v. Gram Panchayat Village Sirthala (supra) and decision relying
on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh
Maharaj (supra) and Dharampal (dead) through LRs v. Punjab
Wakf Board (supra) cannot be said to be laying down the law
correctly, thus they are hereby overruled. We hold that plea of
acquisition of title by adverse possession can be taken by
plaintiff under Article 65 of the Limitation Act and there is no
bar under the Limitation Act, 1963 to sue on aforesaid basis in
case of infringement of any rights of a plaintiff."
05. In view of observation by the Supreme Court that the decision of
Gurudwara Sahab (supra) does not lay down the law correctly, the finding of
the appellate Court that the suit for declaration of title by adverse possession
is not tenable, is required to be set aside.
06. Having found so, let us turn to the next substantial question,
whether the findings rendered by the appellate Court while reversing the
decree passed by the trial Court on the question of adverse possession are
perverse. I have heard the learned Counsel appearing for both the parties.
07. Mr. A.S. Deshpande, learned Counsel appearing on behalf of the
appellant submitted that the appellant is in possession of the suit plot i.e. half
eastern portion of plot No. 23 from 09/11/1979. Though, the notice was sent
by the mother of the respondents on 22/05/1987 asking the appellant to
vacate the suit plot, which has been replied to by the appellant and, therefore,
there is no interruption to the possession of the appellant from 1979 till filing
of the suit in the year 2005. It is submitted that even if the date of notice i.e.
22/05/1987 is considered, the appellant is in peaceful possession of the suit
plot from 1987, even though respondent No.3 tried to disturb the possession
over the suit plot by asking the appellant to vacate the plot in the year 2005,
the period of twelve years was already completed in the year 1999. Therefore,
the possession of the appellant on the portion of plot No.23 becomes adverse
to the respondents. He submits that this aspect has not been considered by
the first appellate Court while allowing the appeal of the respondents.
08. As against this, Mr. A.V. Lokhande, learned Counsel appearing on
behalf of the respondents vehemently submitted that neither a specific date of
possession nor the nature of possession has been mentioned in the plaint.
According to him, the western portion of Plot No.23 is a vacant land, the
possession of which has been taken by the respondents with the help of police
in the year 2005. According to him, the tax on the half portion of the plot is
being paid by the respondents. He further went on to submit that the
appellant became a co-owner of Plot No.23 along with the present
respondents and, therefore, the possession of a joint possessor/co-owner is not
presumed to be adverse. According to him, the appellate Court was justified
in reversing the decree of the trial Court and hence, seeks dismissal of the
appeal.
09. The position with regard to adverse possession has been settled by
long standing precedents in line. For establishing the actual adverse
possession, three classic requirements must co-exist at the same time, namely,
nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec
precario i.e. adverse to a competitor, in denial of title and his knowledge;
visible, notorious and peaceful so that if the owner does not take care to know
notorious facts, knowledge is attributed to him on the basis that for due
diligence he would have known it. The most essential ingredient i.e. animus
possidendi under hostile colour of title is required. Trespasser's long
possession is not synonymous with adverse possession. A reference can be
made to the recent precedent in the decision in Ravinder Kaur (supra).
10. Turning to the case in hand, I have gone through the plaint
minutely. The plaint depicts that the appellant claims that he is in possession
of the entire plot and is residing therein after construction of the suit house
over there as an absolute and exclusive owner since the date of sale-deed i.e.
09/11/1979. It has been further specifically pleaded that since 09/11/1979,
nobody apart from the appellant-plaintiff had any right or title on entire Plot
No.23. The relevant paragraph is reproduced here.
"6. The plaintiff, therefore, respectfully submits that the
plaintiff is in possession of the entire plot No.23 and he is
residing therein after construction of his house over there as
an absolute and exclusive owner right since the date of
execution and registration of the sale deed in favour of the
plaintiff on 09/11/1979. It is also submitted that right
since 09/11/1979, none other than the plaintiff had ever
any right of title or possession over the entire Plot No.23
and muchless on the suit property. It is also submitted that
since prior to purchase of the eastern half portion of plot
No.23, by the plaintiff on 09/11/1979, one of the original
joint owners namely Shri Jagannath Gudatkar had already
expired, the vendor of the plaintiff had handed over and
delivered the possession of the entire plot No.23 to the
plaintiff on 09/11/1979 itself and whereof the plaintiff is
residing as absolute and exclusive owner and in possession
thereof. It may also be stated over here that since
09/11/1979, no any person ever claimed any right, title or
interests in the suit property since to the knowledge of the
plaintiff the said Shri Jagannath Gudatkar who expired
before the execution and registration of the sale deed of the
plaintiff on 09/11/1979, none of his legal heirs, if any, ever
claimed any right, title or interest over the suit property. At
this stage the plaintiff submits that the plaintiff is not aware
about the identity or whereabouts of the legal heirs, if any,
of the deceased Jagannath Gudatkar. Even otherwise the
plaintiff submits that since the plaintiff is in absolute and
exclusive possession of the suit property rights since
09/11/1979 as an absolute owner thereof, the plaintiff has
acquired title to the suit property by adverse possession
which is adverse to the interests of the original owner Shri
Jagannath Gudatkar and his legal heirs, if any. It is also
submitted that the acquisition of title over the suit property
by the plaintiff by virtue of the plaintiff's long and
continuous and peaceful possession is adverse to that of the
owner of the suit property and therefore, the plaintiff is
entitled for declaration of his ownership over the suit
property by adverse possession. It is also submitted that
since 09/11/1979, the plaintiff is in absolute possession and
he has also constructed a house on the entire Plot No.23
and is residing therein, without any interruption and
interference of his ownership and possession."
11. Thus, by way of a specific declaration in the plaint, the appellant
has pleaded that he is the owner of the suit plot from the date of the sale-
deed. Thus, the foremost condition of animus possidendi under hostile colour
of title is missing. The appellant did not admit the ownership of the
respondents. For claiming adverse possession, a person, who is in possession,
must accept the title of the owner of the property and thereafter he must show
his hostility to the title of the owner of the suit property. Therefore, the first
appellate Court has rightly held that there is no hostility by the appellant to
the title of the respondents. Though, the finding recorded by the appellate
Court that no declaration of title can be sought on the basis of adverse
possession is not correct in view of the ratio laid down by the Supreme Court
in the case of Ravinder Kaur (supra), the first appellate Court was right in
holding that the foremost element of animus possidendi was missing and,
accordingly, dismissed the suit of the appellant by allowing the appeal by the
respondents. Consequently, the appeal fails and it is dismissed with no order
as to costs.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 02/01/2025 16:37:16
