S. Barman, J.
1. Defendant is the appellant. The suit out of which this appeal arises was filed by the plaintiffs for declaration of their title to the suit lands acquired by adverse possession and permanent injunction.
2. Defendant Haribandhu Mohanty purchased lands,374 decimals in area situate in Cuttack town. It is saidthat the suit lands Were not fit for building as they werelow lands with ditches. In 1936 defendant found thatsome people had put up huts on the suit lands. Thereupon the defendant filed a suit being Title Suit No. 378of 1936 against the present plaintiffs Harekrushna Beharaand others (hereinafter referred to as the Beheras) forevicting them and getting vacant possession. On May 13,1937 the said suit was compromised. Under the compromise 68 decimals were given to the said Beheras whowere defendants therein. It is said that the remaining306 decimals out of 374 decimals purchased by defendantHaribandhu Mohanty as aforesaid were given to Haribandhu Mohanty who was the plaintiff in the 1936 suit.There was a further stipulation in the compromise petition that defendant Haribandhu Mohanty would be entitled to obtain possession of the lands through Court Incase of interference with defendant's (Haribandhu Mohanty)possession. The plaintiffs' easel of adverse possession--as pleaded in paras. 2, 3 and 4 of the plaint, is quotedhereunder:
'2. That the same (referring to T. S. No. 378 of 1936) was disposed of by compromise by which, the present plaintiffs relinquished their claim with regard to the suit lands and the suit was decreed accordingly on 19-5-1937.
(3) That the compromise petition is a fraudulent one and is brought about by misrepresentation. The plaintiffs were illiterate and plaintiff No. 1 was a minor at the time of compromise being represented by his mother who was an illiterate and Purdanashin lady at that time.
(4) That the defendant never took delivery of possession of the present suit lands either amicably or through Court and the plaintiffs were all along in possession of the suit land even in spite of decree without any interruption, though there was an averment that the plaintiffs left the suit lands.'
In these premises the plaintiffs claim that they had perfected their title by adverse possession. What ltd to the present suit was that in 1954 the defendant Haribandhu Mohanty wanted to build on the suit lands. Thereupon on August 28, 1954 the Behera plaintiffs filed the suit for reliefs as aforesaid.
3. The defence to the suit was that the compromise was genuine and proper; at the time of the compromise defendant got possession of the suit lands which was measured and fenced; that he has been getting the suit lands cultivated by tenants since 1944 and that the ditches had been filled up.
4. The trial Court found that the compromise was valid; there was no fraud nor misrepresentation; that the defendant has been in possession of the suit lands throughout and accordingly dismissed the plaintiffs' suit. In appeal, the learned lower appellate Court, while confirming the finding of the trial Court as to the validity and genuineness of the said compromise, however reversed the decision of the learned trial Court and decreed the suit in favour of the plaintiffs on the finding that the plaintiffs have perfected title by adverse possession. Hence this second appeal by the defendant.
5. The simple point in this appeal is the questionof adverse possession on which alone the plaintiffs rely.It is well settled that possession by itself is not necessarily adverse. It must be hostile and also must satisfythe other ingredients in order that such possession mayamount to adverse possession. It is contended on behalfof the defendant appellant that the compromise in 1936suit having been found to be genuine and possession having been given to the defendant on the date of compromise on May 13, 1937 the defendant's such possessionwhich he got in 1937 should be presumed to have continued and that there can be no question of adverse possession by the plaintiffs.
6. The question therefore arises whether the finding of the learned lower appellate Court that delivery of possession was not given to the defendant, Haribandhu Mohanty according to the compromise was correct. This leads to the examination of the further question whether the admission in the compromise petition that the present Behera plaintiffs made over possession of the suit lands to the defendant was true or not. If the plaintiffs had succeeded in proving that the admission in the compromise petition Ext. G/6 dated May 13, 1937 with regard to delivery of possession of the suit lands is not true, then presumption of continuity of plaintiffs' possession would arise. The learned lower appellate Court discussed the evidence of the plaintiffs' witnesses who all said that the plaintiffs retained possession of the suit lands even though it was written in the compromise petition that the plaintiffs gave up possession of the suit lands to the defendant.
The defendant as D.W. 12 however said that he took delivery of possession of the suit lands after they were measured and that he put a fence round the lands, and further that he is maintaining the fence all along. The defendant however, did not examine even a single witness to support his version of the case. The learned lower appellate Court after a full discussion came to the conclusion that it is difficult to accept the defendant's evidence that the suit lands were delivered to him after proper measurement before the compromise petition was filed in Court.
7. This view is supported by the terms of the compromise petition itself. The position is this: There is a stipulation in the compromise petition that the defendant would be entitled to obtain possession of land through Court in case of interference with the defendant's possession. This recital in the compromise petition naturally leads to the inference that the possession of the lands was not delivered to the defendant prior to the filing of the compromise petition. It is clear from the terms of the compromise petition that there was a stipulation that the defendant would take delivery of possession of land through court if it becomes necessary. The defendant has admitted that immediately after the compromise he left for England and did not return home until 1941 by which time three years had already elapsed from the date of the passing of the compromise decree. It is evident therefore that the suit lands continued to remain in possession of the plaintiffs even in spite of the compromise decree. The learned lower appellate Court believed the plaintiffs' version of the case, namely that in pursuance of the terms of the compromise actual delivery of possession was not given to the defendant by the plaintiffs.
8. The next question is: Does such possession of the plaintiffs even in spite of the compromise in 1937 amount to adverse possession? There is no evidence of the defendant ever coming into possession for all these 17 years from 1937 till 1954 when the suit was filed. He had attempted to prove certain acts of possession through his tenant or servant in the years 1944 to 1946. The learned lower appellate Court however did not accept that evidence on the side of the defendant regarding his alleged possession of the suit lands even for these three years, 1944 to 1946. Therefore it comes to this: There is no evidence of defendant's possession of the suit lands during these 17 years. Indeed to constitute an adverse possession such possession must be adequate, in continuity, in publicity and hostile. The learned lower appellate Court carefully considered the situation and use of the property. The neighbouring tenants deposed as witnesses said that the plaintiffs' house and the suit lands, were adjacent to each other, and they are in one compact block. It is also in evidence that the plaintiffs used the suit lands by growing vegetables, filling up pits and maintaining fences over them openly and continuously for more than 12 years with the knowledge of the defendant, and there is nothing to disbelieve the statements of these witnesses.
9. Thus, when in spite of the compromise decree in 1937 the plaintiffs remained in possession, such possession must be adverse possession. I agree with the reasoning of the learned lower appellate Court based on findings of fact arrived at by it as a final court of fact with which this Court in second appeal is not to interfere.
10. In this view of the case, the decision of the learned lower appellate Court is upheld. This appeal is dismissed with costs.