K.M. Maniappa (Deceased) Through ... vs Desh Raj Mehta (Deceased) Through ...
2002 Latest Caselaw 836 Del

JUDGMENT

Mahmood Ali Khan, J.

1. The appellants, who are LRsof the deceased defendant, have challenged in the second appeal an order of an Additional District Judge dated 16.9.1996 whereby he has allowed an appeal filed by the respondents, who are the LRs of the deceased plaintiff, and has set aside the judgment and decree dated 14th July 1995 passed by a Civil Judge. The learned Civil Judge by order dated 14th July 1995 had dismissed a civil suit filed by the predecessor-in-interest of the respondents for eviction of the predecessor in interest of the appellants and for recovery of arrears of rent from him.

2. Briefly stated, the facts are that Des Raj Mehta, who died and his LRs, respondents herein, were brought [ # ] on record, (hereinafter to be called the plaintiff) filed a suit for eviction of his tenant K.M. Maniappa, who also died during the pendency of the suit and is now represented by the LRs who are appellants herein,(hereinafter to be called the defendant) in January 1985, on the averments that the defendant has taken on rent from him at the rate of Rs.80/- per month a residential premises comprising of two rooms, tin shed, kitchen, bath room, latrine and common courtyard in property no.WZ-276 Gali No.9, Palam Colony, Village Palam, Delhi and his tenancy commenced from first day of the English calendar month and expired on the last day of the same month. The defendant defaulted in payment of the rent and fell in arrears from 1.1.1984 to 31.12.1984 which he has failed to pay in spite of repeated demands. The plaintiff did not want to keep him as a tenant, so terminated his tenancy by service of registered notice dated 26.11.1984 but to no effect. Since the premises are situated in the revenue estate of Village Palam, therefore, the provisions of Delhi Rent Control Act were not applicable. He claimed the relief of recovery of possession of the suit premises and also for recovery of Rs.960/- as arrears of rent.

3. This suit was contested by the defendant on diverse pleas. He repudiated the claim of the plaintiff and denied that there was relationship of landlord and tenant between him and the plaintiff or that the plaintiff was owner of the suit premises. Conversely, he claimed himself to be owner of the property being in possession thereof unobstructed, continuous and without any objection for the last over 12years. He also raised objection that the suit has not been properly valued and proper court fee has not been paid. The court has no pecuniary jurisdiction to try the suit.

4. In the replication the plaintiff reiterated his own case and denied that of the defendant. It was specifically refuted that the defendant had become owner of the premises by adverse possession as pleaded. Other pleas were also controverter.

5. On the pleadings of the parties the learned Civil Judge framed the following issues:

1. Whether the defendant is a tenant under the plaintiff in respect of the suit premises? OPP

2. Whether this court has the jurisdiction to try the suit?

OPD

3. Whether the defendant has become the owner of the suit premises by adverse possession? OPD

4. Whether the suit is not maintainable in the present form?

 OPD
  
 

  5. Whether the plaintiff is entitled
 to  recover  any amount from  the
 defendant?    If  so, to   what
 extent?  OPP  
 

  
 6. Relief.   
 

  6.

On perusal of the evidence and hearing of the parties the learned Civil Judge decided issues 2 and4 in favor of the plaintiff and recorded the finding on issueno.1 and 5 in favor of the defendant and against the plaintiff. As regards issue no.3 his view was that this issue did not arise from the pleadings of the parties and the question whether the defendant had become owner of the premises by adverse possession was not relevant for deciding the suit. He accordingly struck off this issue. In result, he dismissed the suit filed by the plaintiff.

7. The plaintiff felt aggrieved and filed first appeal which was heard by an Additional District Judge. The learned Additional District Judge by order dated 16th September 1996 reversed the finding of the learned Civil Judge on issue no.1 and 5. He also set aside the order of Civil Judge that issue no.3 is not necessary to be decided in the suit and held that the defendant was not owner of the premises by adverse possession. She accordingly decreed the suit and directed eviction of the defendant from the suit premises and also passed decree against him for recovery of Rs.960/- as arrears of rent @ Rs.80/- per month for the period from 1.1.1984 to 31.11.1984.

8. The LRs of the defendant have challenged this order in this second appeal.

9. The question that arise for decision in the second appeal is whether the finding of the learned first appellate court about subsistence of relationship of landlord and tenant between the parties raises a substantial question of law and is liable to be set aside.

10. At the outset, counsel for the appellant has candidly conceded that a second appeal shall lie only if a substantial question of law was raised. He admitted that the finding of facts recorded by the first appellate court cannot be challenged in second appeal unless it is perverse or based on no legal evidence or misreading of evidence and misapplication of law. For this limited purpose the evidence produced by the parties in the suit may be reappraised and re-appreciated.

11. A resume of the evidence produced by the plaintiff may be necessary for deciding the question raised. PW-1 Harish Chander was an official of the Drug Control Organisation. His statement was to the effect that the record relating to the letter dated17.3.1972 sent by Assistant Drugs Controller to M/s Bharat Surgical and Dressing Manufacturing Company of WZ/276 Palam Colony, Palam, New Delhi had been weeded out and was not available in the office. PW-2 Ashok Kumar claims himself to be a tenant in house no.WZ-276 Gali No.9 situated in Palam Colony, Village Palam, Delhi i.e. the suit premises between 1973 to 1976. His deposition is that he had taken these premises on rent from the plaintiff Des Raj Mehta and was taking receipts one plain paper from him. He produced some of those receipts as Ext. PW-2/1 and PW-2/2. He identified the signatures of Shri Des Raj Mehta on them. He also produced the letters Ext.PW-2/3 and PW-2/4 which were written by his daughter and brother in law to him and were received by him at the address of the suit premises by post. It was also stated that the defendant was occupying the same premises. When cross-examined by the counsel for the defendant he testified that he was tenant for three years from 1973 to 1976 and whatever rent receipts were available, had been produced by him. The remaining receipts were destroyed. The plaintiff was owner of the suit premises. He had not preserved all the letters which were received by him in the suit premises by post. He denied a suggestion that the letters produced by him were not actually received at the address of the premises. His tenanted premises comprised of two rooms, bath room, latrine and shed. He built his own house and shifted there. He has taken on rent the premises from the plaintiff through one Pandit Hazari Lal who has since died. After he had vacated this accommodation the defendant occupied it. He denied that the defendant was owner of this property or that he was making false statement.

12. Shri Amar Nath Mehta was examined as PW-3. He is brother of plaintiff Des Raj. According to him, his brother Des Raj had executed a will bequeathing the suit property in his favor which is Ext.AW1/1which is signed by Des Raj as well as two attesting witnesses which he has identified. The will was executed in sound disposing mind. Des Raj was owner of the property under a sale deed. He filed the certified copy of the sale deed Ext.PW-3/1 and identified the signatures of the vendor and the attesting witnesses on the original sale deed. He claims himself to be the eye witness of the execution of the sale deed. The sale deed was registered. He has now become owner of the suit property by virtue of a will. The site plan of the premises in occupation of the defendant is Ext.PW-3/2. The plaintiff had let out the suit premises to the defendant in his presence on monthly rent of Rs.80/-. Sumer Chand and Jai Ram were also present at the time of this transaction. The defendant did not pay rent since January 1984. Notice of demand and termination of tenancy was served on the defendant, copy thereof was Ext.PW-3/3. The postal receipt is Ext.PW-3/4 and the certificate of posting is Ext.PW-3/5. Notice was sent to the correct address of the defendant. The acknowledgement due regarding receipt of notice on the defendant is Ext.PW-3/6. The defendant did not pay rent and vacate the premises even after service of notice. Ext.AW2/1 was the death certificate of the plaintiff. Ext.PW-3/7 is the certified copy of the voter's list in which the defendant and his wife were registered as voters in the suit premises. The voter's list for the year 1975 pertaining to his village was mark A. L.S. Bhatnagarand his wife were mentioned at s.no.636 and 637 who were living with the defendant in the suit premises as his friend or relative and also recorded as registered voters. Des Raj used to carry on business in the name and style of M/s Bharat Surgical and Dressing Manufacturing Co. in the suit premises under a license issued by the Drugs Controller. That license was dated 17.3.1972 which is mark A. Before the premises were delivered to the defendant it was given on rent by the plaintiff to Ashok Kumar. Ext.PW-2/1 and PW-2/2 were the rent receipts issued by the plaintiff to Ashok Kumar in respect of the suit premises. They bear the signatures of Des Raj. He himself signed it as witness. The property has been mutated in the municipal record in his name after the death of Des Raj and he was paying house-tax. During cross-examination it was stated that the premises were let out to the defendant on 1.7.1976 and till December 1983 the defendant was paying the rent regularly. The rent receipts were also being issued and sometimes the defendant also obtained the signatures of the plaintiff on his note-book. The rent receipts were issued on plain papers and counter-foils thereof one printed book were not being maintained. Sumer Chand had died and Jai Ram was admitted in Mehrauli T.B. Hospital. They were present at the time of letting out of the premises to the defendant. The will was executed in his presence. The will was executed in 1988. The sale deed of the suit premises was executed in January 1958. He was present then. He denied that the defendant had never paid any rent of the premises. The will was not registered. It was also testified that he was present when the premises were let out to Ashok Kumar in May 1973. Ashok Kumar had vacated them on 30th June 1976. The rent receipts sometime were written by the plaintiff and sometimes by him. Both he and his brother were not living together in one property. He himself was living in the property which is adjoining to the suit premises. He denied that the defendant was occupying the premises in his own right and not as a tenant.

13. In rebuttal to the evidence produced by the plaintiff, the defendant did not enter into witness box but he examined his wife Smt. Radhamma as his power of attorney. DW-1 Smt. Radhamma stated that her husband, the defendant, was ill, therefore, he had asked her to appear as a witness in this suit. He had executed a power of attorney Ext.DW-1/1 in her favor. They had come to Delhi in 1971 and occupied the suit property the same year. They came to this locality in search of a house. With the help of a friend of her husband who was also in Army they came to this area where one Sumeer met them and asked them to take possession of the suit property as the same was lying vacant and unclaimed. Thereafter they occupied it in 1971 and since then they were living in it. She filed the original letters Ext.DW1/2 to DW1/6. (Filing of these documents was objected to on behalf of the plaintiff as photo copy of these documents were not placed on the record earlier and the matter was left to be decided at the time of arguments.) The defendant never paid any money to anyone including the plaintiff since their occupation of the premises in 1971. Nobody demanded rent from the defendant. The plaintiff never demanded the rent. They continued to occupy the premises without any interruption, obstruction or interference from anyone for over 14 years and thereafter they had received the notice from the plaintiff. Appropriate reply of the notice was sent. The defendant was owner of the suit property. The plaintiff was not the owner. In the cross-examination she has stated that she was illiterate. The defendant engaged a counsel and he himself used to attend the hearings. He, however, had not come to the court on that day. She came to the court after lunch. She did not know if the defendant had come and appeared before the court before lunch. The power of attorney was executed by the defendant a day before. She had come with her husband for getting it executed. She did not know the name of the person who had signed the power of attorney Ext.DW-1/1 as an attesting witness. She also did not know whether the power of attorney was notarised a day before. She could not read the power of attorney Ext.DW-1/1. She also did not know when was the stamp paper for writing this document was purchased. She also did not know whether the entire property comprised of six rooms, tin shed, kitchen, bath room, latrine but claimed that she was in possession of 110 sq.yds. of land. There was no staircase in the property. The total area of the property was 220 sq.yds. out of which she was occupying 110 sq.yds. There is no staircase in other half of this property. She had not inspected the house-tax record relating to this property but stated that no house-tax was being paid in respect of the portion of the property which was in possession of the defendant. She did not know as to who was paying the house tax in respect of the adjoining portion. There was no electricity in the house but the electricity fittings were there. She got the wiring done about a year back. No application for sanction of the electricity connection has been submitted. She did not know whether there is electricity in the adjoining portion. She also did not know whether a case of theft of electricity from the pole is pending against the defendant. She again stated that no such case was pending against the defendant. She had not brought documents relating to the illness of the defendant. Before coming to Delhi they were living in Punjab but she could not recall the name of the place. The defendant did not have any relative living in Delhi but one Sommaiya was a friend of the defendant who lived in Gali No.3 Sadh Nagar, Delhi. He had already left Delhi soon after his retirement two or three years after the defendant shifted to Delhi. She did not know his father's name. Sommaiya was employed in 27, Artillery. She did not know the date and the month when the defendant came over to Delhi. She also did not know as to who was living in the adjoining portion of the property but could not deny that Amar Nath, brother of the plaintiff was living there. She could not say whether the plaintiff was living in the said accommodation before his death. A friend of the defendant had sent a letter Ext.DW-1/2 but did not know where was he residing. She could not produce the letter that came in Ext.DW1/2. She also did not know from where this letter was dispatched. The originals of Ext.DW-1/4 to DW-1/6 might be with the defendant. She also did not know as to who had constructed the suit premises. The defendant, however, did not get any building plans sanctioned from the MCD for re-building the dilapidated property. The defendant might have also kept the account of the money spent on the construction. She also did not know how much money was spent. A criminal case was pending against the defendant under Section 506. She admitted that the criminal case started when the defendant was making the disputed wall. She could not say whether the said case was launched by Amar Nath. She denied that the case was still pending. The defendant had sent reply to the notice of the plaintiff but did not know whether the copy of the reply was kept. It was not sent in her presence but she was told by the defendant that it had been sent. She denied that the defendant had not sent any reply to the notice. She also denied that prior to the defendant one Ashok used to live in the premises., She did not know whether the electricity connection in the adjoining accommodation in property no.EZ-276 was in the name of Amar Nath. She also did not know whether the plaintiff Des Raj was recorded as owner of the entire property WZ-276 Sadh Nagar, Palam Colony. It was denied that Des Raj plaintiff had let out the premises in dispute to the defendant on monthly rent of Rs.80/- or that the defendant continued to pay rent till December 1983. She did not know how far from the suit property Sumeer was living. He was not their relative but defendant might have some dealing with him. She also did not know whether Sumeer was still alive. She did not know that the counsel for the defendant knew about the role of Sumeer when the written statement was drafted. She denied the suggestion that the house was not lying vacant or in dilapidated condition or that the property was lying unoccupied and in dilapidated condition and Sumeer had asked them to occupy. It was denied that the defendant did notappearas a witness himself intentionally. It was also denied that she was making false statement as tutored by the defendant.

14. In support of the allegations made in the plaint that the premises were owned by the plaintiff and they were let out to the defendant in 1976 the plaintiff had filed the certified copy of the registered sale deed dated30.12.1957 asExt.PW-3/1. The sale deed was executed by Janak Raj Singh Chopra as a general attorney of Raj Kumar Sharma, partner of M/s Raj & Co., Palam, Delhi Cantt as vendor in favor of Des Raj plaintiff in respect of a land bearing plots no.A-52 and 53 measuring 220 sq.yds. The fact of the property sold fora consideration of Rs.577/- has also been mentioned in this sale deed. Amar Nath PW-3 is the brother of the deceased plaintiff. He during the recording of his statement has produced the original sale deed, identified the signatures of the vendor and the witnesses and filed the certified copy of the registered sale deed. There is no cross-examination by the counsel for the defendant challenging the correctness of this sale deed nor is any suggestion given to him that this sale deed pertains to some other plot of land. On the other hand, it has come in evidence that the total area of the property which bear nos.WZ-276 Palam Colony was 220 sq.yds. out of which the suit premises is on the land measuring 110 sq.yds in accordance with the statement of Radhamma DW-1. From the evidence of Smt. Radhamma DW-1 it also appears that in the other half portion of the plot, the plaintiff and thereafter his brother Amar Nath Mehta were residing. Amar Nath PW-3 has stated that he is occupying the adjoining portion of this property. It has also come that he has electricity connection in his name. She also could not deny that the whole of the property situated on the land EZ-276 was assessed to house tax in the name of the plaintiff and the name of Amar Nath has been mutated upon in the house-tax record of the MCD. The defendant has not paid the house-tax. His wife Smt. Radhamma has conceded this fact. The whole of the property, portion of which is in occupation of the defendant and the plaintiff was given only one municipal number EZ-276. It is neither the case of the defendant nor has it been claimed orally that they are two different properties carrying different numbers. Amar Nath Mehta PW-3 has stated on oath that Des Raj plaintiff was the owner of this property andhe has bequeathed this property in his favor by a will. The plaintiff's witness Ashok Kumar PW-2 also stated that Des Raj plaintiff was owner of this property. Thus from the oral as well as documentary evidence it has been fully established that Des Raj was owner of this property.

15. Beside, the plaintiff examined PW-2 Ashok Kumar who has categorically stated that he had taken the premises, which is in occupation of the defendant, on rent from the plaintiff Des Raj in 1973 and he vacated it in 1976.He even produced the copies of the rent receipts which were being issued to him by Des Raj on plain papers. He produced rent receipts Ext.PW-2/1 and PW-2/2. In addition he also produced post card Ext.PW-2/3 and PW-2/4 which bears the postal stamp of 14.4.1976 and 21.5.1976. These post cards are addressed to Ashok Kumar at house no.WZ-276 Gali No.9, Sadh Nagar, Palam Colony. It is not the suggestion of the defendant that these post cards or the postal stamps affixed on them are forged or fabricated. Amar Nath, PW-3 had stated that the rent receipts Ext.PW-2/1 and PW-2/2 used to be written on paper and were not issued from printed rent receipt book. He had identified the signatures of Des Raj. In fact, he has stated that these receipts were sometime written in his hand and the receipt Ext.PW-2/1 and PW-2/2 were also signed by him as a witness. These documents were produced by Ashok Kumar against whom there is no allegation that he is under obligation of the plaintiff to give statement in his favor or an axe to grind against the defendant. Ashok Kumar, PW-2 has corroborated the allegations made by the plaintiff in the suit and his cross-examination did not yield anything to discredit his testimony.

16. PW-3 Amar Nath Mehta has also produced the copy of the notice of demand and termination of tenancy dated 26.11.1984 Ext.PW-3/3. It was sent to the defendant by registered post AD. The postal receipt is Ext.PW-3/4. It was also sent under certificate of posting. The postal certificate is Ext.PW-3/5. The acknowledgement due regarding service of this notice on the defendant is Ext.PW-3/6. Receipt of this notice has been admitted by DW-1 Smt. Radhamma in her statement. It is stated that reply to this notice was sent to the plaintiff. But neither a copy has been filed nor any otherp roof is filed to show that any reply was sent. In the notice which was sent by Des Raj through a counsel to the defendant it was alleged that the defendant was tenant under the plaintiff in the premises on a monthly rent of Rs.80/- and that the defendant was in arrears of rent from 1.1.1984 to 31.10.1984. The tenancy of the defendant was also terminated w.e.f. 31.12.1984 and the possession of the premises and the arrears of rent were demanded from him. The defendant did not send any reply to this notice and an adverse inference against the defendant for keeping silence after receiving this notice may be drawn. This reinforces the case of the plaintiff that he was the owner of the premises and the premises were let out to the defendant.

17. PW-2 Ashok Kumar has clearly stated that he was tenant in the same premises which was in occupation of the defendant. He is also steadfast in alleging that the premises were let out to the defendant after he had vacated them. There is no reason why PW-2 Ashok Kumar who has supported the case of the plaintiff should be disbelieved. His statement finds corroboration from the two post cards which he had received at the address of the suit premises in the year 1976. It is not the suggestion of the defendant in the cross-examination that he was occupying the adjoining portion of this property. Amar Nath Mehta PW-3 has stated on oath that the premises were let out to the defendant in his presence. He is brother of Des Raj and was living in the adjoining portion of the property and there is no reason why his testimony should be disbelieved.

18. Conversely, the defendant has chosen not to enter the witness box himself. His wife Smt. Radhamma DW-1 stated in her deposition that the defendant was sick. However, she did not know about the exact nature of his illness. No medical certificate has been produced to show that the defendant was unable to come to the court and make his statement. She could not even deny the suggestion put to her in the cross-examination on behalf of the plaintiff that the defendant had come to the court before lunch, the day on which her statement was recorded in post lunch period. It is true that the defendant died during the pendency of the suit but this by itself did not give rise to a presumption that the defendant himself was unable to come to the court or to appear as a witness in the case. The allegations of the plaintiff were that the defendant had taken on rent the premises from the plaintiff and he was paying rent to him. The defense of the defendant was that he occupied the premises which were lying vacant and unclaimed. The defendant was, therefore, the best person to state as to how he happened to occupy the suit property and support his case. He withheld the best evidence and, therefore, adverse inference would be drawn for his non-appearance in the case.

19. The story as put forward by the defendant is that he came over to Delhi in 1971 and was searching for a house and came to the area where the suit premises are situated. One Sumeer suggested that the suit premises were lying vacant and unclaimed and, therefore, it be occupied by him and he occupied it. Sumeer has not been examined by the defendant. No other person of the locality has been produced to prove that he had occupied the property which was lying unclaimed. No oral or documentary evidence has been produced to show that the property was re-constructed by the defendant by his own money. The whole of the property bears one number. The total area of the plot was 220 sq.yds. The land on which the suit property stands is nearly half of it as stated by DW-1 Smt. Radhamma. The plaintiff's brother PW-3 Amar Nath Mehta was living in the adjoining portion. It is unbelievable that in an old village a stranger would walk in and occupy the land in the Abadi area without any objections or protest of anyone much less the person who was occupying part of the land and had a sale deed of the whole of the land in his favor. The allegation of the defendant that he has not rented the property or was not paying rent to anyone does not inspire confidence.

20. The defendant has filed letter of 1973 at the address of WZ-276 (Peeplewala Beda) Kumhar Wala Gali, Sadh Nagar, Palam Colony and another letter of the Posts & Telegraphs Department dated 14.7.1973 as Ext.DW-1/6 received at the address of WZ-276 (Peeple Tree Compound), Kumahar Wala Gali, Sadh Nagar, Palam Colony, New Delhi and the letter dated 4.11.1972 Ext.DW-1/4 at the same address. He has also filed an envelope bearing postal stamp of 8.12.1972 bearing address of WZ-276 (Peeple Tree Compound), Kumhar Wala Gali, Sadh Nagar, Palam Colony. According to the defendant, all these documents will show that the defendant was receiving his mail at the address of the suit premises in 1972 also. These documents do show that they were sent to the address of the suit premises and to an extent may repell the allegation of the plaintiff that the defendant came to the premises in 1976. But on the basis of these documents alone it will not be possible to hold that the defendant was in occupation of this house since 1971 and that too in his own right in the face of overwhelming oral and documentary evidence produced by the plaintiff.

21. Counsel for the defendant has contended that Amar Nath Mehta,PW-3 has deposed that the premises were let out to the defendant in the presence of Sumer Chand and Jai Ram and that out of them Jai Ram was alive but he has not been produced. If the statement of this witness was read carefully it showed that Sumer Chand had died and Jai Ram was admitted in a T.B. Hospital. Therefore, non-production of Jai Ram by the plaintiff will not lead to an adverse inference against the plaintiff's case who has proved his title over the suit land and the property.

22. On the other hand, defendant has not tried to produce the person at whose instance the property was occupied by the defendant in 1971. No other person of the locality has been produced to corroborate his statement.

23. Counsel for the defendant also vehemently argued that the defendant was in continuous, uninterrupted and hostile occupation of the suit premises for over 12 years since 1971 and, therefore, he shall be deemed to have perfected his title over it by adverse possession. He cited Mubinulnissa Versus Ali Husain and Another, AIR 1929 Oudh 402 in which it was laid down that in order to prove title by adverse possession it must be shown that such possession was adequate, in continuity, in publicity and in extent and it must be actual, visible, conclusive, hostile and continued during the statutory period of 12 years. He also referred to Sanglakpam Ningol Adhikarimayum Ongbi Ibemcha Devi and Another Versus Ningombam Mani Singh and Others AIR 1977 Guauhati 1 where it was held that in order to adversely possess the suit land, it must be shown by the defendant that the possession was open, hostile and exclusive and that the burden of proving that the possession of the suit land was adverse and was for a statutory period lay heavily on the party asserting it. Counsel next referred to Suraj Mal and Others Versus Babu Lal and Another, in which it was held that the expression `adverse possession' means a hostile possession, that is, the possession which is in denial of the title of the true owner. It must be adequate in continuity, in publicity and in extent to show that it was possession adverse to the real owner. The defendant also cited Kishun Prasad Vs. Mt. Shubratan and Others, AIR 1937 Allahabad 696 where also it was held that the possession to be adverse must be adequate, in continuity, in publicity and in extent and it was not necessary that it should be shown to have been brought to the knowledge of the true owner and further that it was sufficient that the possession was overt and without any attempt at concealment so that the person against whom time was running, ought, if he exercised due vigilance to be aware of what is happening. He next referred to a judgment of the Supreme Court in Kshitish Chandra Bose Vs. Commissioner of Ranchi, .It was held in that judgment that the possession to be adverse, the possession must be open and without any attempt or concealment and it was not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Citing Smt.Samundra Devi Vs. Chand Singh & Others, counsel argued that it has been laid down that though the knowledge of the ousted co-owner would be the best evidence of assertion of the hostile title openly and publicly, the law on the subject does not require that there should be a conveyance to the ousted co-owner of the actual knowledge that hostile title is asserted and what the law requires is that the hostile title should be asserted openly and publicly in such a manner that the co-owner affected can know such hostile assertion. Another judgment of Madras High Courtin V.Muthiah Pillai (Died) & Others Vs. Vedambal and Others, was cited where it was held that the concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or implied in denial of the title of the true owner and further possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them and also that a person who based his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Next, he placed reliance on Sher Mohammad Shahbaz Khan and Others Vs. Sher Mohammad Ranne Khan and Others, AIR 1936 Lahore 208 wherein it was held that it would not be correct that in every suit for possession where the plaintiff had established his title, it lies on the defendant to prove his adverse possession, even though the plaintiff had come into Court alleging his possession and dispossession. It was further held that in case relating to vacant sites, possession followed the title and the mere fact that a trespasser has taken possession of apportion of a vacant site cannot affect the constructive possession of the real owner on the portion not trespassed upon. In such cases the wrong doer could by lapse of time gain title only to the area actually possessed by him. Lastly, he cited Rangulal Ram Vs. Makhan Lal & Others, in which it was laid down that mere repudiation of the plaintiff's title behind his back is not enough to dispossess him unless it is followed by some overt act. The payment of house tax was not such an unequivocal act as would constitute an assertion of hostile intention so as to amount to adverse possession in law.

24. All these judgments have laid down how title by adverse possession is proved. The possession should be adequate, in continuity, in publicity and in the extent to show that it was possession adverse to the real owner. In the present case excepting the bare words of DW-1 Radhamma that the property was occupied by the defendant and it was reconstructed, no other independent oral or documentary evidence has been produced. The house tax of the entire property was being paid by the plaintiff as claimed by PW-3 Amar Nath Mehta in his statement and this has not been challenged in the cross-examination. DW-1 Smt. Radhamma has admitted that no house-tax was being paid. The defendant, as such, has not been able to prove any overt act done by the defendant in respect of this property which could be treated to be open and hostile that he was in occupation of the premises as owner. The plaintiff has produced specific evidence to show that the defendant was occupying it as a tenant. He holds the title and, therefore, the burden was heavy upon the defendant to prove by cogent and reliable evidence that the possession was hostile to the plaintiff, owner of the property. The defendant has failed to discharge this burden.

25. Considering all this evidence I do not find that there is any factual or legal infirmity in any of the findings recorded by the first appellate court on the issues framed in the suit. The finding of the first appellate court that there was relationship of landlord and tenant between the plaintiff and the defendant is based on evidence. The defendant cannot be said to have been able to prove that he was in adverse possession of the suit premises and has perfected his title over the suit property. The appeal does not raises a substantial question of law.

26. For the reasons stated above I do not find any merit in the second appeal. It is dismissed. However, the parties are left to bear their own cost.