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Once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession: High Court of Chhattisgarh

Any suit governed by Article 65 of the Limitation Act, 1963, is for the plaintiff to aver, plead and establish his / her title over the suit land and it would not be obligatory for him to prove that he was in possession within 12 years preceding he filing of suit, and rather it is for the defendant to plead and establish the plea of adverse possession to non-suit the plaintiff. This was held by the Hon’ble Justice Shri Justice Sanjay K. Agrawal in the case of Radheshyam Pathak (dead) through legal representatives Vs. Kanhaiyaa Gond and ors. [Second Appeal No.49 of 2011] on the 13th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur.

The brief facts of the case are, Plaintiff Radheshyam Pathak filed suit through power of attorney Vijay Prakash Pathak, for recovery of possession based on title stating inter alia that the suit house was purchased by the plaintiff on 27-11-1976 from Shesh Narayan Lal Agrawal and obtained possession of the suit land and immediately thereafter, it was given on license to Mahesh Gond – father of defendants No.1 & 2. The defendants are sons and widow of Mahesh Gond. In the year 1990, license was terminated and the suit house was sought to be vacated by serving notice dated 3-9- 2007 which has not been vacated leading to filing of suit for decree for recovery of possession of the suit house. The defendants filed written statement stating inter alia that they are in possession for long time uninterruptedly and without interference and Shesh Narayan Agrawal has no right to alienate the suit property in favour of the plaintiff, they are not licensee and the plaintiff’s suit is barred by limitation. The trial Court after appreciating oral and documentary evidence available on record decreed the suit in favour of the plaintiff which was appealed by the defendants before the first appellate Court and the first appellate Court reversed the decree of the trial Court and dismissed the suit which has been called in question by the plaintiff in this second appeal before the hon’ble High Court.

The learned counsel for the appellants submits that, he trial Court and the first appellate Court, both, have concurrently held the plaintiff to be the title holder of the suit house, therefore, since the defendants have not pleaded and established their plea of adverse possession, decree for possession passed by the trial Court could not have been interfered and reversed by the first appellate Court. He further submitted that, asper Article 65 of the Limitation Act, 1963 once title is proved by the plaintiff in a suit for possession based on title, it is for the defendant who has to plead and prove the plea of adverse possession and suit cannot be dismissed holding it barred by limitation, unless the defendant pleads and establishes the plea of adverse possession. Furthermore, The defendants have taken the plea of title and adverse possession, both, which cannot dwell together in view of the decision of this Court. Thus, he impugned decree be set-aside and that of the trial Court be restored. The counsel for the respondents submitted that, plaintiff was required to prove his title over the suit land. He also submitted that, non-examination of the plaintiff is fatal.

The learned judge heard the submissions of both the parties and analysed the case in light of Article 65 of the Limitation act. Asper this act, is quite vivid that when the suit is based on title for possession, once the title is established on the basis of relevant document and other evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. The court relied on the judgement in Saroop Singh v. Banto and others (2005) 8 SCC 330 wherein, the supreme court held that, “in the light of Article 65 of the Limitation Act, 1963, the plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs, but commences from the date the defendant’s possession becomes adverse.” In C. Natarajan v. Ashim Bai and another [AIR 2008 SC 363] the court held that, “By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession”.

Applying the rationales in the above mentioned cases, the court set aside the judgement by the first appellate court and reinstated the judgement held by the trial court and decreed that, “The plaintiff’s suit was for recovery of possession based on title and the plaintiff has proved his title as held by the trial Court and duly affirmed by the first appellate Court. According to Article 65 of the Limitation Act, 1963, as noticed herein-above, once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession, but in this case, the defendants have asserted that they are title holders and in case they are not found to be title holders, they have perfected their title by way of adverse possession. Plea of title and adverse possession, both, are mutually destructive plea and inconsistent as well. Therefore, the defendants cannot be permitted to raise mutually destructive plea. However, since the plaintiff has claimed and proved his title over the suit house as held by both the Courts below, it was incumbent on the part of the defendants to plead and establish the plea of adverse possession which they have neither seriously pleaded nor established.”

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