Smt. Pratima Shukla Vs Patna Municipal Corporation and Others

Mungeshwar Sahoo, J.@mdashThe plaintiff has filed this Second Appeal against the judgment and decree dated 16.08.1996 passed by the learned 11th Additional District Judge, Patna in Title Appeal No. 83 of 1992/26 of 1994 whereby the learned Lower Appellate Court dismissed the appeal and affirmed the judgment and decree of the trial court dated 30.05.1992 passed by the learned Sub Judge 8th, Patna in Title Suit No. 408 of 1986/19 of 1991. The plaintiff-appellant filed the aforesaid suit praying for declaration of title over Municipal Plot No. 1122 and non-title of the defendants. The plaintiff claimed the relief alleging that the property comprised within Suit Plot No. 1122 originally belonged to and was in possession of Jhalku Maharaj. He was in possession of the property. Tej Narayan Shukla acquired the property from Jhalku Maharaj and came in possession. Said Tej Narayan Shukla gifted the Plot No. 1122 to the plaintiff who is niece of Tej Narayan Shukla. An unregistered deed of gift dated 25.07.1958 was executed by Tej Narayan Shukla. Plaintiff constructed a house and holding No. 98A was created in her favour in Assessment Case No. 469 of 1978-79. The plaintiff is the owner of the property but it is recorded in the Patna City Municipality as Parti Kadim. Patna Municipal Corporation never came in possession nor exercised any act of possession over the suit property. The suit land was in possession and use of Shukla family. The defendant No. 3 filed petition for settlement which gave rise to dispute regarding the suit property. The said application was dropped but subsequently again on 24.03.1979, he applied and collusively obtained a false report to the effect that the plaintiff has encroached Plot No. 1122 by making construction. The Executive Officer reviewed the earlier order dated 28.08.1978 by order dated 03.02.1982. The plaintiff filed appeal. The matter was remanded to the Executive Officer by terms of order dated 28.08.1985 for fresh decision which is still pending. The plaintiff also alternatively prayed that she had acquired title by adverse possession on allegation that Tej Narayan Shukla was in possession since 1950 and he gifted the property to the plaintiff and gave possession.

2. The defendants filed contesting written statement denying the case of the plaintiff. According to the Patna Municipal Corporation, neither the property belonged to Jhalku Maharaj nor Tej Narayan Shukla ever acquired the property from him nor it was gifted to the plaintiff and the plaintiff has not acquired any title by adverse possession. The property is still recorded as Parti Kadim in the Municipality. The plaintiff is not entitled to any relief.

3. The trial court recorded the finding that Patna Municipal Corporation has the right, title over the land in question and it is recorded in the municipal survey khatiyan of the year 1933. The trial court further directed that the Patna Municipal Corporation may consider the matter of settlement in favour of the plaintiff. The trial court also recorded the finding that no notice was served u/s 508 of Patna Municipal Corporation Act. The trial court also recorded that Tej Narayan Shukla had no title over the suit plot and the gift is not a valid and legal document. Jhalku Maharaj has also got no title. Accordingly, the suit was dismissed.

4. On appeal, the Lower Appellate Court set aside the direction of the trial court regarding settlement in favour of plaintiff by the Patna Municipal Corporation and further confirmed the finding of the trial court on other issues and dismissed the appeal.

5. At the time of admission of this Second Appeal on 17.09.1997, the following substantial question of law was formulated:

Whether the plaintiff has perfected her title by adverse possession?

6. It may be mentioned here that an I.A. was filed by the appellant being I.A. No. 970 of 2007 under Order 41 Rule 27 of the CPC seeking permission to adduce additional evidence. It is stated that one Uday Kumar Upadhyay who was relation of Jhalku Maharaj informed the appellant that in an old box, some papers have been recovered which are of the year 1940-42 showing that Jhalku Maharaj was in possession of the plot in question as settlee in Patna Municipal Corporation in the year 1940. The said documents have been annexed as Annexure 1, 2 and 3.

7. The learned counsel, Mr. Jaipuriyar appearing on behalf of the appellant submitted that both the courts below dismissed the plaintiff''s suit on the ground that the plaintiff failed to prove existence of Jhalku Maharaj or his possession over the suit land. These documents were not in possession of the plaintiff. As soon as it came to the knowledge of the plaintiff in the year 2006, the I.A. has been filed by the appellant on 01.02.2007. Since the documents are public documents and the certified copies of the documents are being filed, the said documents be taken into consideration as additional evidence. The learned counsel submitted that the said documents are essential for the decision of the controversy between the parties and moreover, since it was not within the knowledge or possession of the plaintiff, the plaintiff in spite of due diligence could not file the same either before the trial court or before the Lower Appellate Court. So far the substantial question of law is concerned, the learned counsel submitted that Tej Narayan Shukla has acquired the property from Jhalku Maharaj and came in possession and he executed a gift deed on 15.02.1954 in favour of the plaintiff. Therefore, the plaintiff is the owner and further, the property was in possession of Jhalku Maharaj for more than 12 years and the plaintiff continued thereafter in possession as such, she has also acquired title by adverse possession.

8. The learned counsel, Mr. Vinay Kirti Singh appearing on behalf of Municipal Corporation submitted that the lower appellate Court has rightly dismissed the plaintiff''s suit. No case of adverse possession is made out. Moreover, the documents sought to be produced as additional evidence do not prove title of the plaintiff or Tej Narayan Shukla. Plaintiff is claiming settlement, therefore, there is no question of adverse possession arises.

9. From perusal of the judgments of both the courts below, it appears that plaintiff''s case is that Tej Narayan Shukla acquired the property from Jhalku Maharaj and then executed the gift deed in the year 1954. Therefore, the plaintiff acquired the title. Both the courts below on the basis of the evidences adduced by the plaintiff recorded the finding that the plaintiff failed to prove the acquisition of property by Tej Narayan Shukla from Jhalku Maharaj. Now, therefore, even if it be held that the property belonged to Jhalku Maharaj who was the permanent settlee on the basis of the documents produced by the plaintiff, annexing the same with the I.A., then also it can only be said that Jhalku Maharaj was the permanent settlee. It may be mentioned here that the finding that the plaintiff failed to prove acquisition of the property by Tej Narayan Shukla is concerned, that cannot be disturbed on the basis of the documentary evidences produced as additional evidence. The only statement of the plaintiff is that Tej Narayan Shukla had acquired the property. It further appears that both the courts below recorded the finding that the plaintiff is claiming title on the basis of the gift deed said to have been executed by Tej Narayan Shukla. If there is nothing to show that Tej Narayan Shukla was the owner naturally he will have no right to gift the property in favour of the plaintiff. The gift deed produced by the plaintiff is unregistered gift deed. Section 123 of the T.P. Act provides that gift of immovable property can be effected only by registered document. Therefore, the unregistered gift deed on the basis of which the plaintiff is claiming title is not admissible in evidence, so far title is concerned.

10. In view of the above facts, the documents produced by the plaintiff as additional evidence before this court are not relevant for the decision of the substantial question of law formulated at the time of admission.

11. In the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, Supreme Court, the Hon''ble Supreme Court has held that Appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. When on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment, provisions do not apply. Here, in the present case at our hand, even if these documents are admitted to evidence then also it will not help the appellant because she is claiming title on the basis of unregistered gift deed and adverse possession. The documents produced as additional evidence only show that Jhalku Maharaj was settlee of the land. Now, therefore, even if it is held that Jhalku Maharaj was the settlee, can it be said that because Jhalku Maharaj was settlee, the plaintiff is title holder or has acquired title by adverse possession. The answer will be no.

12. In the aforesaid decision of the Hon''ble Supreme Court, the Hon''ble Supreme Court has held that the I.As. should be heard at the time of final hearing of the Second Appeal. Therefore, the application is heard at the time of hearing of the Second Appeal and the documents are being considered as stated above.

13. From perusal of the judgments of both the courts below, it further appears that the case of the plaintiff that Tej Narayan Shukla orally purchased in the year 1950 from Jhalku Maharaj, has been disbelieved. It further appears that both the courts below found that the plaintiff is claiming settlement of the land and the defendant No. 3 is also claiming settlement. It may be mentioned here that if the plaintiff is claiming settlement of the land, the plaintiff in other words, is admitting the title of Mandal Revenue Officer Vs. Goundla Venkaiah and Another, the Hon''ble Supreme Court has held that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers.

14. In the case of Karnataka Board of Wakf Vs. Government of India and Others, Supreme Court, the Hon''ble Supreme Court has held that the plea of general title and adverse possession are mutually inconsistent and the plea of adverse possession will not start unless the plaintiffs claim of general title is renounced. The Hon''ble Supreme Court further held that a person who claims adverse possession must prove that his possession is "neck vi", "neck clam", "neck precario" i.e. peaceful, open and continuous and possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. A person claiming adverse possession must show that on what date, he came into possession and what was the nature of his possession. Whether the factum of possession was known to the other party and his possession was open and undisturbed. In the present case at our hand, as stated above, only the pleading of the plaintiff is that she was put in possession by Tej Narayan Shukla on the basis of unregistered gift deed in the year 1954. There is no case made out by the plaintiff that she came in possession of the property in denial of the title of the true owner. Moreover, there was claim of the plaintiff before municipality for settlement of the land. Therefore, the plaintiff was admitting the title of the municipality and was claiming settlement. She never denied the title.

15. It is settled principles of law that mere long possession will never constitute adverse possession. In the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, the Hon''ble Supreme Court has held that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. Intention to possess cannot substitute for intention to dispossess which is essential to prove adverse possession. Here, the plaintiff came in possession on the basis of the gift deed, therefore, the intention element is not of the variety and degree which is required for adverse possession to materialize.

16. In view of the above position of law, the plaintiff failed to prove acquisition of title by unregistered gift deed. In other words, by unregistered deed of gift, title did not pass to the plaintiff. Likewise, the plaintiff also failed to prove acquisition of title by adverse possession. Therefore, the substantial question of law formulated at the time of admission of the Second Appeal is answered against the appellant. Thus, this Second Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.