(1) This appeal is clearly concluded by findings of fact and must be dismissed.
(2) Mangat Rai Verma (respondent in this Court) instituted the present suit for the possession of a plto of land measuring 7 bids was situated in Mauza Chandrawali, Delhi - Shadara on the allegation that the said plto had been purchased by him from Sarvashri hair Saran Dass and Ram Saran Dass by means of a registered deed of sale dated 13-3-1938. The defendant, according to him had illegally entered into its possession. Along with the claim of possession of the said land.
(3) The defendant in his written statement denied ownership of the plaintiff and pleaded that he had been in possession of the plto for more than 12 years and had acquired ownership by adverse possession.
(4) The pleadings of the parties gave rise to two issues on the merits, one relating to the plaintiff's title and the toher of the acquisition of title by adverse possession on the part of the defendant. Later, an additional issue was framed to the effect whether the suit was within time. The trail Court decided all the hire issues in favor of the plaintiff holding that the registered sale-deed and the entries in the Jamabandhi and the Khasra Girdvaris showed the plaintiff's title in regard to the land in dispute. It was also ntoice that the defendant had claimed the on ownership of the land on the basis of title as distinguished form title maturing from adverse possession. Indeed, the defendant, according to the trail, court, admitted in his cross examination that he would have paid the rent of the plto in his possession to any one representing himself to be the owner of the land. It appears that some construction had been made on this plto and evidence washed about its possession. The trail Court did nto considered oral evidence led by either party to be of good quality but in view of the assessment registered. It appeared that the house tax on the construction was levied for the first time in the year 1951-52. The Court on consideration of the entire material came to the conclusion that till 1950 the plto was lying vacant and, thereforee possession followed title. On this basis, the plea of adverse possession for more than 12 years before 1960 when the suit was instituted was held nto to be tenable. On this additional issue also on this basis, it was found that the plaintiff must be deemed to be in possession of the vacant site up to 1950 which, was well within the period of twelve years preceding the date of the suit within the contemplation of Article 142 of the Indian Limitation Act. The suit for possession was accordingly decreed but that for mesne profits dismissed for want of evidence.
(5) On appeal, the learned Additional District Judge affirmed the judgment and decree of the Court of first instance. He also ntoiced that the sale deed Exhibit P.7 had, been registered in the year 1938 and the Jamabandhi entries and the Khasra Girdawaris clearly support the plaintiff's claim to the land in suit Revenue Act was also ntoiced by the lower Appellate Court and it was held to support the plaintiff's claim/ The defendant's version that he had come to India in 1946 was nto believed. The conclusion of the Court of first instance of all the three issues was accordingly affirmed.
(6) On second appeal learned counsel for the appellant has very strongly and eloquently argued that the finding on the question of the plaintiff's title is vitiated because there is a evidence in support thereof. This contention is obviously futile because the registered sale-deed is there. He has then suggested that the numbers given in the sale-deed do nto tally with the numbers of the Khasra Girdwars of the land in dispute. Hence again, the findings of the two courts below on this part of the case are findings of the fact and it is nto open to the appellant to ask this Court to re-assess or re-evaluate the evidence. The learned counsel then attempted to show that his client's adverse possession was fully established. Here again, the conclusion of the Courts below is nto open to challenge because S. 100, Code of Civil Procedure, prohibits it. The conclusion is obviously based on evidence as the judgments of buth the Courts below suggest, and if there is evidence in support of the conclusion, then this Court has nto jurisdiction to reconsider it.
It must be forgtoten that the plea of adverse possession has to be established by person who raises it and if the defendant has nto established an open, hostile act of possession in assertion of his right, then he can scarcely claim to have acquired title by virtue of adverse possession. In regard to the question of limitation as well, the appellant has no case. Whenever here is a vacant plto of land, the well-recognised principle that title ordinarily carries with it presumption of possession applies. Of course it is open to the person who asserts adverse possession to show that he was asserting his right effectively even on vacant open site excluding the true owner and was doing so in an open and hostile manner. But this must be shown by clear and unequivocal evidence that his act was hostile to the real owner and amounted to a denial of the owner's title to the property claimed. There is obviously no question of any denial by the defendant off the plaintiffs title extending no backward to more than 12 years before the institution of the present suit and indeed no attempt has been made to substantiate such denial.
(7) The appeal, as observed earlier, must full and is here by dismissed, but as there is no representation on behalf of the respondent there would be no order as to costs.
(8) Appeal dismissed.