1980 PLP 169 (CLC)

RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal was pending before the Division Bench of the High Court when by operation of law, it stood transferred to this Court. It seeks to impeach the judgment and decree passed by a learned Single Judge of the High Court on 20th July, 1970. By this judgment the findings of the Court of first instance as well as that of the first appellate Court to the effect that Fateh Ali Shah (since dead) defend an possession over the suit land for its being adverse in nature had matured into title, was maintained.

2. The appeal arose out of a suit based on title filed by Jewan Khan deceased plaintiff on 7th July, 1960, who is now represented by his legal heirs arrainged as appellants. Through. this suit possession of the land measuring 82 kanals, 12 marlas comprising Survey Nos. 547 and 547 min situate in the area of village Bratla Tehsil Kotfi was claimed. The case of the plaintiff concisely was that he was the owner of the land and Fateh Ali Shah deceased (defendant) who is now represented by his heirs occupied the same as tenant-at-will on 'Ghala Bataie' (J .4t) ; and that since two to three )ears, in repudiation of his title, be had stopped payment of rent. Fateh Ali controverted the plaintiff's claim and claimed to have purchased the property from Jewan Khan through an oral sale for a consideration of Rs. 800 more than 15 years back ; and that since then, he was holding the p9ssesion as vendee. In alternate adverse possession was pleaded.

3. The learned Sub-Judge vide his judgment and decree dated 19th August, 1967, dismissed the suit of Jewan Khan, plaintiff on the ground that the possession of respondent Fateh Ali due to its adverse nature had matured into title. However, the claim of oral sale was not allowed. This finding on appeal by Jewan Khan plaintiff was maintained by the District Judge Mirpur. The second appeal by Jewan Khan plaintiff before the High Court also failed.

4. The first point urged by the learned counsel for the appellant is that the learned Judge in the High Court as well as the Court of the First instance and the first appellate Court by misreading the evidence erroneously arrived at incorrect conclusion that the respondent's possession over the suit land had matured into title.

5. Firstly we deem proper to deal with the question as to which adverse possession connotes and means. Adverse possession in our view means holding the land openly, in publicity, in one's own right and in disclaimer of the title of true owner. The inference may be drawn by the nature of the possession i.e. the way its when it is being treated and enjoyed by the possessor. 'An adverse holding an actual and exclusive appropriation of land commenced and continued under a claim of right. Adverse possession implies that it commenced in wrong and is maintained against right. A person as said to hoc the property of another adversely to him, when the latter is, in denial of his title excluded by the former, from the enjoyment of the same. 1'csseysion of the wrong-doer, to avail him, must be adverse in its character, importing a denial of the owner's title in the property claimed.'

6. The true import and meaning of the words 'adverse possession has been elaborately dealt with in a case entitled Jngendra Chandra Kapali Chowdry v. Arjun Chandra Kapali and others' (P L D 1964 Dacca 498). Dealing with the question it has been observed therein :- "As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lord. ships adopt the language of Lord Robertson in delivering the judgment of the Board in Rodhinoni Devi v. Collector of Khulna L R 27 1 A 136, 140, where his Lordship said that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The classical requirement is that the possession should be nee vi nee clan nee precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for the requirement. 4t 'is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance to be aware of what is happening."

7. It is thus manifest that to acquire title by prescriptive possession trust be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner.

8. The proper test therefore to be applied in a case of adverse possession is whether a person for a period of twelve years or more exercised such dominion over the property as to justify the inference that he was holding it in disclaimer of the title of the owner.

9. With this state of law, we now proceed to determine the contro versial point of adverse possession. So far this Court is concerned where there is evidence to consider the decision arrived at by the sub ordinate Courts and affirmed by the High Court it is final even though we might not on the material come to the same conclusion, if we had the power to substitute our judgment. But despite this for our own satis faction, to determine the validity of the finding we have gone through the evidence-oral as well as documentary and have come to the conclusion that the findings to the effect that Fateh Ali (deceased) defendant for the adverse nature of his possession had acquired title in the land, is based on cogent and convincing evidence. The receipts dated 30th Jeth 2002 BK, 31st Asuj 2003 BK and 15th Magh 2003 BK executed by Jewan Khan (the execution is admitted by him) show that Fateh Ali defendant since 2002 BK. was paving land revenue only to him. It is thus legitimate to infer that Jewan khan plaintiff by his conduct, in accepting the land revenue from Fateh Ali Shah right from the year 2002 BK. had impliedly all along been treating Fateh Ali as owner of the land for all practical intents and purposes. The payment of land revenue only and nothing more is an absolute and open disclaimer of the title of Jewan Khan. Therefore, in these circumstances it is very hard for us to believe Jewan Khan that Fatefl Ali defendant was a tenant-at-will on payment `Ghala Bataie' (VIII U) rent in kind for which there is no evidence worth any credence. The oral evidence examined by defendant Fateh Ali is one on the point that he remained in exclusive possession of the land to the total exclusion of Jewan Khan for the statutory period of twelve years as an owner.

10. With this shape of circumstances, we feel safe to hold that the oral evidence coupled with the documentary evidence in this case was rightly believed by all the Courts below to have the conclusion that right from the year 2002 BK Fateh Ali defendant occupied the land as an owner. The evidence further tells us that right from the start, i.e. 2002 BK. Fateh Ali defendant's possession was not premissive in any manner. He held the land in his own right and Jewan Khan deceased (plaintiff) also placed him on an equal footing with himself. He was enjoying the whole produce of the land and himself paid the land revenue. There is thus a good deal of force in the plea of adverse possession in the present case. 11 . In view of the above the learned Judge in the High Court has very rightly disallowed the appeal as there was nothing patently illegal in the findings of both the Courts below to call for any interference.

12. It has .been next contended by the learned counsel for the appellant that assertion of hostile title must be brought to the knowledge of the person against whom title is asserted and if this ingredient is lacking possession however, long it may, be cannot be construed and termed to be hostile against the owner. His contention is that in the present case the evidence is insufficient to show that assertion of hostile title was brought to the knowledge of Jewan Khan deceased plaintiff and as such Fateh Ali Shah's possession cannot be termed as hostile. The argument in our view is ill-founded and misconcieved on two-fold grounds :- (a) The receipts of payment of land revenue by Fateh Ali (deceased) defendant to Jewan Khan right from 2002 BK. are sufficient to infer that F2 tell Alt defendant at least from the year 2002 BK onward by making payment of the land revenue and nothing more to Jevan Khan plaintiff had brought it to his knowledge and in our very openly adverse possession was asserted by him. Not nothing bur it is significant that Jewan plaintiff (deceased) by accepting the land. revenue has in fact treated the respondent another of the land and made him not only to believe so but also to act upon it. He is therefore, under section 11,5, Evidence Act estopped now to turn round and challenge or deny the hostile nature of the possession of Fateh Ali Shah. (b) Apart from it, our considered view, is that assertion of hostile title except in cases of co-sharers which is not the case before us, need not he in the way the learned Counsel wants us to hold, brought to the knowledge of the person against whom title is asserted if it can be shown that the true owner had such knowledge, as Jewan Khan had in this case, he cannot later on turn round and say that no overt act showing asser tion of adverse possession was brought to his knowledge." Dealing with the point in a case entitled Jogendra Chandra Kapali Chnwdhry v. Arjun Chandra Kapali and others (P L D 1964 Dacca 498) it has been observed by the learned Judge ;- "What is the meaning of as portion of hostile title to be brought to the knowledge of the person against whom hostile title is asserted? Certainly it does not mean that the person assert ing hostile title and adverse possession should give notice of such assertion in writing or otherwise or by beat of drum to the persons against whom such an assertion is made. If they asserted it and possessed it openly and if the person affected thereby could know it if he cared to know, that is enough. That is the principle laid down by their Lordships of the Privy Council in the case of Secretary of State for India v. Deben dra Lal Khan, that adverse possession need not be shown to have been brought to the knowledge of the Government and is sufficient that the possession be overt and without any attempt at concealment and that possession may be adequate in continuity so as to be adverse although the proved acts of possession do not cover every moment of the period. At page 82 their Lordships observed :"

13. Adjudging the case with this state of law, with which we are in total agreement, there is hardly any ground available to Jewan Khan plaintiff to say that he was unaware of assertion of hostile title by Fateh Ali (deceased) defendant. it may be stated here that the evidence, in this, case is unimpeachable to suggest that Fateh Ali (deceased) defen dant by payment of land revenue to Jewan Khan (deceased) plaintiff could with the enjoyment of the produce as an owner had made, Jewen fully alive that he had been holding the property adversely and in total disclaimer of his title. The settled possession of Fateh Ali as trespasser spreading over a sufficient long period and acquiesced in by the true owner, therefore, shall have to be considered as acquiescence of: the adverse nature of his possession.

14. If we adjudge the case still from another angle the suit must fail. In this case Jewen Khan (deceased) basing his claim on title sued for possession on the ground that the defendant Fateh Ali Shah was tenant-at-will who in turn pleaded adverse possession, Viewing the matter front: this angle, when defendant pleads adverse possession, plaintiff must prove his possession within twelve years and if he fails, g he goes out of the Court. Merely, by proving his title, he is not entitled to possession. To succeed in such case the plaintiff must further prove possession within twelve years of the suit, especially, when the plaintiff as in the present case admits recent possession of the defendant, he must prove affirmatively that he was in possession within twelve years, and if he does not prove so he must fail. In the present case the appreci ation of evidence makes us to believe that Jewen Khan (deceased) plain tiff remained out of possession beyond twelve years at the time of the institution of suit and so he stands non-suited for that count too.

15. Dealing with the point in A 1 k 1947 Bom. 300, after discussing various authorities it was observed by the learned Judge :- "Where in a suit for possession of a certain site which the plaintiff alleges belonged to him but which had been taken possession of by defendant some months before the suit, the defendant denies plaintiff's ownership and pleads ownerships by adverse possession, then in order to succeed, the plaintiff must prove his possession within twelve years of the date of suit. The fact that he has proved his title will not entitle him to possession."

16. In this case there is ample evidence as discussed above to show that the respondent remained in continuous possession of the land right from the year 2002 BK. which obviously spreads over more than twelve years at the time of the institution of the suit. Therefore, even the respondent's plea of adverse possession could not find favour with the subordinate Courts the plaintiff's suit being filed beyond twelve years of his dispossession must fail.

17. Apart from the above we have concurrent findings of all the three Courts that Fateh Ali Shah deceased's possession over the suit land had matured into title. Such a concurrent finding on a question of fact hardly calls for interference in an appeal before the Supreme Court unless it can be shown that it is erroneous in law and finds no support in evidence or if it is unreasonable or perverse. But where there is evidence to support the findings of this Court, in our view, we have no jurisdiction to interfere with the unanimous finding of facer. Here in this case the Court of original civil jurisdiction as well as the learned single Judge of the High Court after due appreciation of the evidence case entitled !Chair, vin v. Fe in appraising the evidence as to a fact un mistaken assertion is merely an error and to be an error of law justifying interference entire evidence produced by the parties, illegality warranting interference could the learned counsel. The evidence on appreciated to have the conclusion the High Court, for interference with question of Shafi v. Sher before Appeal dismissed.