G.M. Lodha, J.
1. This is a family feud between two sisters Mst. Kali and Smt. Ganga about a house in which admittedly Smt. Ganga was living.
2. Plaintiff Smt. Kali along with others filed this suit for possession of the suit room and for mesne profits alleging that this house belonged to Bhajja and was gifted by his wife Smt. Champa to Smt. Kali. The plaintiffs case was that they were living in this house for 45 years. Smt. Champa executed gift-deed in favour of plaintiff on September 10, 1947 and it was got registered.
3. According to the plaintiff, the husband of the 'defendant was ailing and, therefore, the defendant asked the appellant-plaintiffs to give one room, the description of which is given in para 3 for the purpose of living. The husband of the respondent had died in Samvat 2024 but the defendant did not hand over possession back to the plaintiff even on demands. This resulted in registered notice by the plaintiff to defendant.
4. The defendant denied that the suit room belonged to Bhajja or that the possession was given to respondent-defendant by the appellant. According to them, the suit room belonged to Soda brother of Gajja & it was inherited by Gajja & Champa. Appellant No. 1 was married first to Dulla and thereafter she had a Nata with appellant No. 2. Mst. Champa wife of Gajja and, Gula sold this property to defendant and her husband and since then she is in possession,
5. The following issues were framed (in Hindi):....
6. After recording of the evidence the trial court dismissed the suit holding that the plaintiff has failed to prove that possession was given to the defendant by permission. It was further held that the defendant is in possession even before the execution of the gift-deed since 1947 and her possession has become adverse.
7. The appellant court confirmed the judgment of the trial court and hence this appeal. Mr. Shishodia has submitted that once it was proved that the plaintiff had the title of the property, heavy burden lay on the defendant to prove adverse possession and the mere act of possession is not sufficient to prove the essential conditions for claiming adverse possession in law. It was argued that the defendants' witnesses themselves have said that they were not aware what was the type of possession of the defendant and that being so, existence in support of possession fails to prove adverse possession
8. Mr. Shishodia further submitted that in the Limitation Act Articles 64 and 65 which have replaced Articles 142 and 144 new have altered the earlier law. He relied on Budhi Mahal and Ors. v. Gangadhar Das and Ors. 1978 Vol. XLVI The Cuttack Law Times 287, in which it was observed as under:
Articles 142 and 144 of the Old Limitation Act have been replaced by Articles 64 and 65. The law, as it stood, appeared to favour a trespasser as against an owner because in an ejectment suit by the owner of the property it was not sufficient for him to establish his title but he had also to further establish that he was in possession of the property within 12 years before the date of the institution of the suit. Articles 65 of the New Limitation Act relates to suits for possession based on title and provides that the period of limitation is 12 years from the date when possession of the defendants becomes adverse to the plaintiff. The plaintiff will succeed if he proves his title without being required to prove his possession within 12 years of the suit. If the defendants wants to default the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years which will have the effect of extinguishing the title of the owner.
Reliance was also placed upon Bitola Kuer v. Ramcharan : AIR1978All555 wherein it was held as under:
Where the suit was on the basis of title and the plaintiff had succeeded in proving her title.
Held that the plaintiff could be denied the relief of possession only if the defendant succeeded in showing that he was in adverse possession of the property in dispute for more than 12 years.
The plaintiff could not be nonsuited if she failed to prove her possession over the property in dispute within 12 years of the date of the institution of the suit.
From the mere fact that the plaintiff had failed to prove her possession over the house in dispute within twelve years of the date of the institution of the suit. It could not be concluded that the defendant was in adverse possession over the house in dispute.
9. My attention was drawn to decision of Assam High Court in Chandra Kanta v. Gokul AIR 1975 Gau. 12 in which it was observed as (sic):
Where in a suit for possession based on title the plaintiff's title has been found Article 65 is applicable and the burden is on the defendant to prove that the suit is barred by adverse possession.
The above principle has been reiterated in Ramswaroop Singh v. Badri Narain Singh : AIR1982Pat206 .
10. The principle which has been enunciated in the above decision is that after the coming into force of the Limitation Act it is not for the plaintiff to prove that he was dispossessed within 12 years. Once he proved his title it is for defendant to prove that he was in adverse possession for a period of 12 years.
11. In view of the above principles I have now to examine whether the defendant has been able to prove that he is in adverse possession of the property in dispute for a period of 12 years.
12. Undoubtedly the defendant is in possession for about 22 years as the finding of both the courts which appears to be correct is that since 1947 the defendant is in possession.
13. The second important feature of the case is that the plaintiff obtained the property by a gift some where in 1947 where the defendant was already in possession.
14. Another important feature of the case is that the genesis or the history or origin of the possession of defendant is not known because the allegations of both sides on this particular point have been disbelieved by both the courts and rightly so.
15. The decision of the Orissa High Court in Budhi Mahal and others (supra) is certainly a new break through in respect of interpretation of Articles 64 and 65, in the back ground of the earlier Articles 142 and 144 of the Limitation Act. It is now established that plaintiff is not required to prove his possession within 12 years according to Article 65 and all that is required to prove is title.
16. However, the plea of adverse possession assumes importance in the present case because the defendant is in possession for the last about 22 years and the origin of possession is not known.
17. Here Mr. Maheshwari pointed out that their Lordships of the PC in Arunachallam Chetty v. Venkatachaleapathi Guruswamigal ILR 43 Madras 253 has observed as under:
With regard to the second point mentioned, namely, that the possession by the Chetties has not been adverse to the 'gurukkal' their Lordships fail to understand on what the difficulty of the Court below rests. Here was possession, not as in right of the gurukkal, but as in the Chetties' own right, with all the incidents of possession, namely, the purchase of lands, the borrowing on lands, the erection of buildings, the letting of holdings, the making payments to the priest for his support and spiritual services, the keeping of the village accounts. The mahant was presumably aware of these transactions, extending now in his own time for over half a century, yet the first real challenge thereof appears to be the institution of this suit itself. This is a very ordinary case of possession nec vi nec clan nec possaris. The person now claiming to be owner has stood by while others continued to possess not by any derivative title but in practical contravention of his alleged rights. The law does not require that the claimant to ownership must, in such circumstances, be shown to have protested that his rights were being violated, and that the possession went on adversely to his protest. In short their Lordships cannot agree with the legal view upon this subject of possession adopted by the Court below.
18. Mr. Shishodia confronted with the above submitted that in the Arunachallam Chetty's case (supra) the facts were wholly different. There were several acts hostile e.g. purchase of land borrowing on lands, erection of buildings, letting of holdings, making payment to the priests and keeping of village accounts, by the Chetties and yet the Mahant who was aware of these transactions for about half a century did not challenge them.
19. In these circumstances, their Lordships observed that the person now claiming to be owner stood by while others continued to be in possession not by any derivation of title but in clear contravention of his alleged rights.
20. In the present case a peculiar feature of the case is that though the plaintiff came out with the case that he was in possession for 45 years and it was only 2-3 years earlier to the filing of the suit that the possession was given but both the courts have found that the defendant was in possession before the execution of the gift deed. I am inclined to attach importance to these circumstances because if the defendant was in possession at the time the gift-deed was executed in favour of the plaintiff by their mother, it was expected that the plaintiff would assert her title and not remain silent. It is true that both were sisters but the fact that the further was required to make the gift in favour of one inspite of possession by the other sister goes to show that so far as the rights of the property are concerned they were certainly not reconciled to each other. In this context the long period of 22 years assumes great importance though ordinarily mere possession of 22 years would not have been sufficient and ripen in adverse possession in this context. Another feature of the case is that the defendant made construction of a wall as evidenced by the statement of Ganga DW 4 by constructing one wall and Chanda at a cost of Rs. 200/- and Rs. 300/- that Mr. Shishodia pointed out that this construction was made only a few years back as per the evidence of DW 3. It was pointed out that DW 3 has stated that Chanda was constructed about 1 or 2 years. Be that as it may, the fact remains that when the whole dispute is about one room and the valuation of the suit itself was Rs. 200/-, the construction, made by the defendant costing about Rs. 200/- to Rs. 300/- in the shape of a wall or a Chanda cannot be called as insignificant, immaterial or of minor nature. This has to be viewed from the background that the defendant has remained in continuous undisturbed open possession of this room for 22 years beginning from the time when even the plaintiff was not the owner and even after the plaintiff became owner in 1947 by a gift she continued in her undisturbed possession in the same manner for all the period. The plaintiff, therefore, stood and remained a silent spectator to this possession for 22 years and, therefore, in the peculiar facts and circumstances of this case it will have to be held that the possession was adverse continuously for a period of 12 years and more.
21. In this view of the matter I am inclined to uphold the finding of both the lower courts though slightly on different grounds as in my view the proposition of law relied upon by the lower court is not correct because once the plaintiff proved the title, it is for the defendants to prove under Article 65 of the New Limitation Act that defendant was in adverse possession for 12 years.
22. Consequently, the appeal is dismissed with out any orders as to costs.