Adverse possession is a hostile possession
The appellants are aggrieved by the order allowing the plaintiff’s second appeal. The High Court reversed the order of the First Appellate Court and restored the order of the Trial Court decreeing the plaintiff’s suit for adverse possession.
The Civil Judge Class I, Guna decreed the suit holding that the plaintiff had perfected his title by continuous, hostile and uninterrupted possession for more than 12 years adverse to that of the original land owners, and that the sale- deeds were a nullity. Regular Civil Appeal 19-A of 1996 preferred by the appellants was allowed holding that the Trial Court had overlooked documentary evidence on record to arrive at an erroneous conclusion of adverse possession on basis of oral evidence only. The second appeal by the plaintiff was subsequently allowed by the impugned order holding that the conclusions of the First Appellate Court were erroneous, restoring the order decreeing the suit. Thus, the present appeal.
The plaintiff claimed adverse possession from 1960-1961. The lands were sold to Urmila Devi before the expiry of 12 years on 11.10.1972 and she was put in possession. The plaintiff’s claim of uninterrupted possession for twelve years was therefore unsustainable as completely devoid of substance.
The High Court in second appeal arrived at a perverse findings on the same evidence that Urmila Devi never acquired possession and thus the plaintiff had established adverse possession after twelve years. The report of the Court Commissioner also finds no discussion by the High Court. It also failed to deal with the suspicious Khasra entries in red ink, claimed by the plaintiff in proof of possession. Likewise, it did not consider that the origin of the claim of the plaintiff itself never stood established in absence of necessary pleadings which was sought to be introduced after the plaintiff’s evidence, as an afterthought.
Hon’ble Navin Sinha and Indira Banerjee, JJ., have held that adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M.Venkatesh (supra). The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact couple with that it was open, hostile and continuous to the knowledge of the true owner. The respondent –plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao and others v. Palle Venkata Subba Rao, on adverse possession observing as follows :
“15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The Courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.”
Brijesh Kumar v. Shardabai, 2019 (203) AIC 7 SC
IN A VIEW OF AMBIGUITY AND CONTRADICTION,
BENEFIT OF DOUBT BE GIVEN TO ACCUSED
The impugned judgment dated September 19, 2008 passed by the Punjab and Haryana High Court affirms conviction of the present appellant Satish Kumar and one Dhajja Ram for murder of Shamsher under section 302 read with section 34 of the Indian Penal Code (hereinafter) referred to as the “Code”), for which the appellant has been sentenced to imprisonment for life and fine of Rs 10,000/- with default stipulation to undergo further rigorous imprisonment for two years. The impugned judgment also affirms conviction of Satish Kumar and Dhajja Ram under section 506 read with section 34 of the Code for which they have been sentenced to rigorous imprisonment for one year and fine of Rs 1,000/- each with default stipulation to undergo rigorous imprisonment for 3 months and under section 323 read with section 34 of the Code for which they have been sentenced to undergo rigorous imprisonment for six months and fine of Rs 500/- each, and in default to undergo further rigorous imprisonment for one month.
Hon’ble Indu Malhotra and Sanjiv Khanna, JJ., have held that clearly, therefore, there is inconsistency between the dying declaration, medico-legal report Ex-PC and the post-mortem report Ex-PG. Further, cross examination of Dr. R.K. Nandal (P.W. 4) exposits contradiction as to whether the injury in question was sufficient to cause death in normal course of nature. Benefit of doubt in view of the ambiguity and contradictions must go the appellant.
In view of the aforesaid, we do not think that the condition and mandate of third clause of section 300 of the Code that the bodily injury intended to be inflicted was sufficient in ordinary course of nature to cause death has been proved and established beyond doubt. Pertinently, it is under this clause alone that the present appellant has been convicted for murder under section 302 read with section 300 of the Code and sentenced to life imprisonment. Accordingly, the conviction of the appellant Satish Kumar is converted from section 302 to part I of section 304 of the Code. Other convictions are maintained and not interfered.
Satish Kumar v. State of Haryana, 2019 (203) AIC 16 SC
Mentioning of wrong provision not fatal
By means of this appeal, the appellants who are defendants in the suit, have challenged the order of the High Court dated 26.3.2009 whereby the order of the Trial Court has been set aside and the respondent No. 1 herein has been permitted to be added as plaintiff No. 2 in the suit.
The Hon’ble Deepak Gupta and Aniruddha Bose, JJ., have held that in the case of the substitution could have been ordered.
According to us, the application was strongly filed under Order 1, Rule 10, C.P.C. and it should have been filled Order XXII, Rule 10, C.P.C. which reads thus:
“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
10. Procedure in case of assignment before final order in suit.-
1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).”
P N Jadeja v. J C Shah, 2019 (203) AIC 22 SC