1. This second appeal has been filed by the defendants-appellants against whom the plaintiff-respondent's suit was dismissed by the trial Court, but in appeal, the decree passed by it was set aside and his suit for possession of agricultural land measuring 44 kanals 14 marlas was decreed on the basis of the title by the lower appellate Court.
2. Admittedly, the plaintiff is the owner of the suit land. According to him, the same was orally mortgaged by him with possession with the defendants for a sum of Rs. 2,000/- on Dec. 10, 1960. As the defendants did not allow him to redeem the suit land, the present suit for redemption was filed. Later on, amendment of the plaint was sought which was allowed, in appeal, and the plaintiff, in the alternative, claimed possession of the suit land, on the basis of his title. In the written statement. The defendants denied any mortgage having been created in their favour by him. It was alleged that he had desired defendant No. 4 to arrange the marriage of his daughter with Mukhtiar Singh, the sister's son of defendants Nos. 1, 2 and 4, The said marriage was arranged accordingly. Thereafter, he expressed his intention to sell the suit land which was agreed to be purchased by defendants Nos. 1, 2 and 4, for a sum of Rupees 5,000/- According to them, the said amount was paid to him, though the sale amount was paid to him, though the sale deed was not executed as the latter represented to the former at that time that he being under taccavi debt, would not be able to get permission from the Tahsil to sell the land, and that since then, they are in possession of the suit land in their own rights as the owners. They further alleged that in any case, they had become owners of the suit land by adverse possession. On the pleadings of the parties, the trial Court framed the following issues :
1. Whether the suit land was mortgaged by the plaintiff with defendant Nos. 1 to 3, as alleged, and if so, under what terms and conditions?
2. Whether the suit is bad for misjoinder of parties, as alleged ?
3. Whether the suit is not maintainable in the present form?
4. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
5. Whether the suit is barred by time?
6. Whether defendants Nos. 1, 2 and 4 have perfected their title to the suit land on account of their adverse possession for more than 12 years ?
7. Whether the plaintiff is estopped from filing this suit, as alleged ?
Under issue No., the trial Court came to the conclusion that the plaintiff had altogether failed to discharge the onus of proving that the suit land was mortgaged by him, as alleged. All the other issues were decided in his favour and against the defendants. However, in view of the finding under issue No. 1, his suit was dismissed. In appeal, the lower appellate Court, as observed earlier, allowed the amendment of the plaint so as to enable him to claim possession of the suit land on the basis of his title. The parties did not choose to lead any additional evidence after the amendment of the plaint was allowed and were satisfied with the evidence already on the record. However, an additional issue was framed in regard to the alleged improvements made by the defendants on which evidence was led, but that is not material for the purposes of this appeal. The lower appellate Court affirmed the findings of the trial Court under issue Nos. 5 and 6 were reversed and it was held that the defendants had failed to prove that they had perfected their title to the suit land on the basis of their adverse possession thereon for more than twelve years. As a result, the decree of the trial Court dismissing the plaintiff's suit was set aside and his suit was decreed on the basis of his title. Dissatisfied with the same, the defendants have come up in second appeal to this Court.
3. The learned counsel for the appellants, vehemently contended that according to the plaintiff himself, the defendants are in possession of the suit land since Dec. 10, 1960, under an oral mortgage for a sum of Rupees 2,000/, whereas according to the case of the defendants, they were in possession thereof since then by virtue of the agreement for sale executed by the plaintiff in their favour for a sum of Rs. 5,000/- , which amount, according to them, had been paid by them to him. Having found that he had failed to prove the alleged mortgage and the defendants also having failed to prove the alleged sale, the latter's possession on the suit land since Dec. 10, 1960, would be deemed to be hostile to the former. The suit having been filed on Nov. 16, 1974, i.e., more than twelve years after the said date, viz., Dec. 10, 1960, the defendants had perfected their title on the suit land by adverse possession. The findings of the Courts below in this behalf, according to the learned counsel, are wrong and illegal and are, therefore, liable to be set aside in this second appeal. In support of his contention, the learned counsel placed reliance on Gayani Sahu v. Balchand Sahu, AIR 1924 Pat 341; Mst. Nilabati Padhiani v. Pirabati Padhiani, AIR 1964 Orissa 258 and the State of West Bengal v. Dalhousie Institute Society, AIR 1970 SC 1778. On the order hand, the learned counsel for the respondent submitted that there was no evidence on the record prove that the defendants had been in continuos possession of the suit land without interruption and had claimed themselves to be the owners thereof, particularly when in the jamabandi for the year 1967-68, Exhibit P-3, the entry in the column of cultivation is bila lagan ba tassaver rahan. There is no evidence of any overt act on the part of the suit land, and, therefore, by no stretch of imagination, they could be held to be in adverse possession thereof. In support of his contention, the learned counsel placed reliance on Lachhmi Narain v. Kalvan, AIR 1960 Raj 1; Purusottam Das v. S. M. Desouza, AIR 1950 Orissa 213 and Rameshwar Rao v. Govind Rao, AIR 1961 SC 1442.
4. I have heard the learned counsel for the parties at a great length and have also gone through the case law cited at the bar.
5. It is the common case of the parties that under Article 65 of the Limitation Act, it is for the defendants to prove that they had perfected their title by prescription being in adverse possession of the suit land for more than 12 years. Both the Court below, after discussing the entire evidence on the record, have come to a concurrent finding that the defendants had failed to prove their adverse possession over the suit land. According to the findings of the trial Court, there is no cogent evidence to show that their possession had been hostile and as a matter of right. Karam Singh, defendant, who appeared as D.W. 3, did not state even a word in this context. There is no cogent evidence to show that the defendants are in possession of the suit land continuously for more than 12 years. it may be mentioned that it is not only the entry in the jamabandi for the year 1967-68, Exhibit P-3, that belies the stand of the defendants, but they have also not brought on the record any copy of the jamabandi or the Khasara girdawari to indicate their continuos possession for any period prior to 1967-68 on the suit land. Where the documentary proof is available but is withheld, the oral evidence thereof could not be believed. The lower appellate Court has affirmed the finding of the trial Court with the following observations :
'To claim adverse possession, defendants has to show that he was in possession of the land in assertion of his tight of ownership which was hostile to that of real owner. In the instant case, though possession of defendants is admitted since 12-10-1960, allegations that the said possession was in assertion of the real owner, cannot be held to be proved. It is admitted that defendant s are near relations of plaintiff. It is the case of defendants that they entered into possession with permission of plaintiff under an oral agreement of sale under which sale was to be effected after a period of three years. This shows that initial entry of defendants was not in assertion of their right of ownership but was permissive and as such, question of defendants becoming owners by adverse possession does not arise.'
Prima facie it is a finding of a fact based on the appreciation of the evidence on the record and this Court cannot interfere with the same in second appeal. Apart from that, there is no evidence of any overt act on the part of the defendant so as to claim any hostile possession against the plaintiff over the suit land during this period. The version of the agreement to sell having been entered into by the plaintiff with the defendants for a sum of Rs. 5,000/- as set up by the latter, has been found to be false by both the Courts below. The entry in the jamabandi for the year 1967-68, Exhibit P-3, as observed in the earlier part of this judgment, is against them in this respect. It is a different matter that the plaintiff has failed to prove the alleged mortgage such since there was no valid document executed in this behalf, but certain stray entries are there in the revenue record in this regard to prove his contention where there is absolutely no evidence or any entry in the revenue record in regard to the alleged agreement to sell in their favour executed by the plaintiff. Simply because the plaintiff admitted the possession of the defendants over the suit land since Dec. 10, 1960 does not, by itself, prove that the defendant shad become the owners of the suit land by adverse possession. They must prove by cogent and reliable evidence that for a period of twelve years they had been in continuos uninterrupted possession of the suit land and had claimed hostile title thereto against the plaintiff. There is no evidence to this effect on record in this case. In Mst. Nilabati Padhiani's case (AIR 1964 Orissa 258)(supra)(relied upon by the learned counsel for the appellants), the defendant who claimed the adverse possession, had also applied for mutation of the suit lands in his own name in the year 1947 and at the same time, there was a rayati patta executed in his favour under which possession of the suit lands was delivered to him. The version of the settlement of the suit land on the defendant under the said rayati patta was disbelieved by the lower appellate Court in that case. Thus, the possession of the suit lands in the said case was delivered under a rayati patta which was held to be invalid and, therefore, in these circumstances, it was held that the possession of persons having no legal title, but nevertheless holding possession of the land under colour of an invalid grant of the land, not being of an invalid grant of the land, not being referable to any legal title, is prima facie adverse to legal title of the owners of the land from the very moment such persons take possession of the land under the invalid grant. In the present case, as observed earlier, there is absolutely no reliable and cogent evidence to prove the alleged agreement to sell in favour of the defendants by the plaintiff. Thus, the question of holding the possession of the suit land under the colour of an invalid agreement to sell, as such did not rise in this case. It was for the defendants to prove by leading cogent and reliable evidence in this behalf which they have failed to do. The more fact that the defendants set up an agreement to sell in their favour in the written statement, which, of course, hey filed to prove at the trial, is not itself sufficient to hold them to be in possession of the suit land in pursuance of the said agreement. In these circumstances, the possession of the defendants under the said agreement, which has been found to be non-existent, cannot be deemed to be adverse from Dec. 10, 1960, as claimed by them. it was for them to prove the same by leading reliable and cogent evidence that they were in continuos possession of the suit land for more than twelve years uninterruptedly and claimed hostile title during that period against the plaintiff. Similarly, in Dalhousie Institute Society's case (AIR 1970 SC 1778)(supra), the possession of the Dalhousie Institute was on the basis of the grant of land in their favour which was subsequently found to be invalid and further, there was evidence in that case to show that the respondent was in open, continuos and uninterrupted possession and enjoyment of the site for over sixty years. Therefore, in these circumstances, it was held in the abovesaid case that a person in such circumstances acquires title by adverse possession. Thus, the distinguishing feature in the present case is that there was no agreement to sell as such, which could be held to be invalid under which could be held to be invalid under which he possession is alleged to have been delivered to the defendants by the plaintiff. As a matter of fact, it appears, there was no such agreement and the possession of the suit land was delivered to the defendants under an oral mortgage which was held to be invalid subsequently. Thus, the admission of the plaintiff that the defendants were in possession of the suit land since Dec. 10, 1960, would only mean that they were allowed to be in possession thereof a mortgages. In any case, the defendants claimed that they had entered the suit land as owners and not as mortgages; hence it was for them to prove that they were there as owners claiming hostile title against the plaintiff. In any case, the defendants never claim hostile title over the suit land by any overt act prior to the institution of the present suit to the knowledge of the plaintiff. In that situation, it could be successfully argued that if their possession of the suit land was adverse to that of the plaintiff openly the plaintiff might have brought his suit for possession within twelve years thereof. Since the plaintiff's suit was that it was a mortgage, he brought the present suit for redemption in which the defendants, for the first time, pleaded that they were in possession of the suit land in pursuance of an agreement to sell and that the sale money had already been paid by them to him. This plea has been found to be false by both the Courts below not being based upon any reliable evidence on the record. Thus, it could not be contended that the possession of the defendants was open and hostile to the knowledge of the plaintiff.. To be in possession in pursuance of an agreement to sell which may be held to be invalid or void, is one thing, but to be in possession without any alleged agreement at all is altogether a different thing. The present is a case of no sale and not of a sale declared to be void or invalid subsequently. Under the circumstances, the possession of the defendants over the suit land since the year 1960 could not be held to be adverse against the rights of the plaintiff as they never disclosed their intention earlier at any time prior to the institution of the suit and only pleaded in defence that the were in possession of the suit land under an agreement to sell. Under these circumstances, the necessary ingredients to prove the plea of adverse possession are non-existent and in any case have not been proved on the record. In view of these circumstances, I do not find any illegality or infirmity in the concurrent findings the two Courts below on this issue.
6. Consequently, this appeal fails and is dismissed with no order as to costs.
7. Appeal dismissed.