JUDGMENT
S.T. Kharche, J.
1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the defendant has filed this second appeal being aggrieved by the judgment dated 24-9-1985 and decree passed by the learned 3rd Joint Civil Judge, Jr. Dn., in Regular Civil Suit No. 42 of 1984 directing the defendant to deliver the possession of the suit plot to the plaintiff which has been confirmed by the Appellate Court on 4-1-1985 in Regular Civil Appeal No. 192 of 1985.
2. Brief facts are as under :
Plaintiff and defendants No. 2 and 3 are real brothers and are owners of the suit plot shown by the letters A B C D in the map annexed with the plaint. This plot was owned by their father Haji Suleman and after his death they have inherited the property and also applied for converting this land into non-agricultural use and accordingly the land was converted into non-agricultural use. The defendant No. 1 had occupied a plot admeasuring 60 x 40 ft. i.e. 2400 sq. ft in this land. He was served with a notice and was called upon to deliver the possession, but in vain.
3. The defendant controverted the case of the plaintiff and contended that he had purchased the suit plot from the father of the plaintiff Haji Suleman in the year 1964 for a consideration of Rs. 410/- who subsequently died and, therefore, the sale-deed could not be executed. Haji Suleman had promised to execute the sale-deed after conversion of the land into non-agricultural use and also delivered the possession of the suit plot to him year 1964 and since then he is residing there as an owner and has perfected his title to it by virtue of adverse possession.
4. The trial Court on appreciation of the evidence recorded the finding that the defendant has failed to establish that he had purchased the suit plot from Haji Suleman for a consideration of Rs. 410/- and that he has perfected his title over the suit plot by adverse possession. Consistent with these findings, the trial Court decreed the suit and directed defendant No. 1 to deliver the possession of the plaintiff. This judgment and decree passed by the trial Court was challenged by the defendant No. 1 by carrying appeal to the District Court. The learned District Judge dismissed the appeal and confirmed the judgment and decree passed by the trial Court. This judgment and decree has been challenged in this second appeal.
5. The Learned Counsel for defendant No. 1 contended that in the year 1964 Haji Suleman had sold the suit plot for a consideration of Rs. 410/- and for that one Sk. Noor Sk. Amin had signed the agreement of sale (Ex. 37). He contended that the possession was delivered in the year 1964 itself but as Haji Suleman died in the year 1964 the sale-deed could not be got executed. He contended that the evidence of Sk. Noor and the witness Laxman conclusively prove that the defendant No. 1 had purchased the suit plot by virtue of agreement of sale and, therefore, his possession deserves to be protected under Section 53A of Transfer of Property Act (for short the Act).
6. The Learned Counsel for defendant No. 1 further contended that defendant No. 1 is in possession of the suit plot since the year 1964 and has perfected his title over it by virtue of adverse possession and the judgment and decree passed by both the courts below cannot be sustained in law.
7. Mr. Kukday, Learned Counsel, for the plaintiff supports the judgment and decree passed by the Courts below and contended that the document (Ex. 37) is neither an agreement of sale nor it can be treated as a sale-deed. He contended that Haji Suleman did not sign the document and instead his alleged Diwanji -Sk. Noor appears to have signed the same wherein some recitals have been mentioned that Haji Suleman had agreed to sell the suit plot to defendant No. 1 for a consideration of Rs. 410/- and delivered the possession and that Haji Suleman had agreed to execute the sale-deed after conversion of the land into non-agricultural use. He contended that both the Courts below have recorded concurrent findings and this document (Ex. 37) cannot confer any title and cannot be considered for protecting the possession of defendant No. 1 under Section 53A of the Act. He contended that at the most possession of defendant No. 1 would be a permissive possession and once defendant No. 1’s possession is said to be by virtue of agreement, it is not open to take a plea that defendant No. 1 has acquired title by adverse possession. Permissive possession cannot be converted into adverse possession unless it is proved that he had acquired adverse title to the property to the knowledge of true owner for a period of 12 years and above. In support of these submissions, he relied on a decision of the Apex Court in Bhura Mogiya and Ors. v. Satish Pagariya and Ors. .
8. This Court has given thoughtful consideration to the contentions canvassed by the Learned Counsel for the parties. It is not in dispute that plaintiff and defendants No. 2 and 3 are the sons of Haji Suleman who died in the year 1964. Therefore, it follows that the sons of Haji Suleman are bound to succeed to the property left by him. Admittedly Survey No. 4/2 of Arni is an agricultural land which is owned by Haji Suleman father of the plaintiff. The plaintiff sought conversion of the agricultural land into non-agricultural use of this field. The contention of defendant No. 1 that he purchased the suit plot by virtue of the document (Ex, 37) for a consideration of Rs. 410/- from Haji Suleman cannot be sustained in law for the simple reason that the said document is not a registered document as is required under Section 53 of the Act, though the cost of the plot is stated to be above Rs. 100/- and thus cannot be made admissible in evidence.
9. Perusal of the document (Ex. 37) would reveal that is neither an agreement of sale nor it is a sale-deed. One Sk. Noor has signed a piece of paper on which some recitals are written to show that defendant No. 1 had agreed to purchase the suit plot for a consideration of Rs, 410/- from Haji Suleman. In such circumstances, even if defendant No. 1 is in possession of the suit plot, his possession cannot be protected under Section 53A of the Act because there is absolutely no evidence to show that the possession of defendant No. 1 is a lawful possession.
10. The next contention of defendant No. 1 that he has acquired title to the suit plot by virtue of adverse possession has been rightly negatived by both the Courts below because the document (Ex. 37) does not show as to on what date the same was written and on what date defendant No. 1 was placed in possession of the suit plot. The Appellate Court rightly observed that defendant No. 1 has to prove that he has become owner of the suit property by adverse possession. The conversion proceedings were started by the plaintiff and as per Ex. 26 the conversion of Survey No. 4/2 was allowed and till that time the plaintiff was using this property as his own including plot No. 4 and 5. Defendant No. 1 took an objection in those proceedings and hence the possession of defendant No. 1, if any, would become adverse to the plaintiff only after the order of conversion, i.e. 7-3-1980 and since from that date the statutory period of 12 years is not over, it is not possible to accept that defendant No. 1 has perfected his title by virtue of adverse possession.
11. The Learned Counsel for the plaintiff has rightly relied on the decision of the Apex Court in the case of Bhura Mogiya, cited supra, wherein it has been held as under:
Admittedly, the defendants came into possession on the basis of agreement, which was a permissible possession. Once the defendant’s possession was by virtue of an agreement it is not open to them to take a plea that they acquired title by adverse possession. Permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above.
12. This decision of Supreme Court is squarely applicable to the facts and circumstances of the present case. It is settled law that permissive possession howsoever long cannot be converted into adverse possession unless it is proved that the person in possession has been peaceably and openly using the property without any interruption to the knowledge of the true owner for the statutory period of 12 years. In such circumstances, this Court is of the considered opinion that no case has been made out for interference into the concurrent findings recorded by both the Courts below. Consequently, it is obvious that no substantial question of law is involved in this appeal. There is no merit in this appeal which deserves to be dismissed. In the result, the appeal is dismissed with no order as to costs.