JUDGMENT
S.D. Jha, J.
1. This Second Appeal by the plaintiff, who was unsuccessful in two Courts below, was by order dated 14-9-1979 admitted for final hearing on the following substantial question of Jaw : –
“Whether title to agricultural land could be acquired by adverse possession”?
2. At the time of final hearing the appellant was granted leave to urge the following additional grounds : –
1. Whether the lower Court is right in holding in the facts and circumstances of the case, that the possession of Motilal became adverse to Kanhaiyalal?
2. Whether the lower Court is right in holding that Motilal acquired title to the land in suit by adverse possession?
3. Facts material for decision of the appeal are that one Shaligram had 5 sons. This appeal is concerned with three : Badrinaryan whose son is the present plaintiff Vishnunarayan, Kanhaiyalal and Motilal. Kanhaiyalal died in the year 1965 leaving behind his widow Sitabai as his sole heir, who died on 23-9-1966. Sitabai before her death executed registered will dated 31-12-1965, Ex.P/1 in favour of plaintiff Vishnunarayan bequeathing all her property including the lands in the present suit.
4. Plaintiff Vishnunaryan on 4-5-1971 filed suit against defendant Motilal for possession of Survey Nos. 837 and 871 areas respectively 2.85 acres and 5.60 acres, total area 8.45 acres, land revenue Rs. 20.82 situated at Village Simorl, Tahsil Mhow (hereinafter called ‘suit land’). According to the plaintiff the land was “Beed” i.e. barren land. Deceased defendant Motilal right from the beginning lived at Simrol and did Kirana business, attending for the purpose village “Hats” and markets. He used a bullock-cart for the purpose. His financial condition was not good and he had no land of his own. Deceased Kanhaiyalal permitted Motilal to graze bullocks on the land and drive his bullock-cart and Motilal was thus a licensee of deceased Kanhaiyalal. Later deceased Motilal also commenced cultivation on part of the land with permission of Kanhaiyalal. After death of Kanhaiyalal on 9-1-1965, his widow Mst. Sitabai was his sole heir and properties of Kanhaiyalal devolved on her. The plaintiff claimed that on the strength of registered will dated 31-12-1965 executed in his favour by Sitabai after death of Mst. Sitabai he became absolute owner of the suit land. In mutation proceedings before the revenue authorities deceased Motilal set up his own title in respect of the suit land. Therefore, the plaintiff through registered notice dated 26-4-1966 served through counsel demanded possession of the suit lands from Motilal. Motilal did not reply to the notice nor hand over possession of the land to the plaintiff. The plaintiff then filed suit claiming possession of the suit land and mesne profits at the rate of Rs. 1,000/- per year which on the date of presentation of the suit worked out to Rs. 13.50.
4A. Before written statement in the suit could be filed defendant Motilal died and his legal representatives were brought on record. The legal representatives filed a joint written statement denying the plaintiff’s claim. It was submitted that deceased Kanhaiyalal and deceased-defendant Motilal were brothers and both earlier lived at village Simrol and jointly ran a shop in the village. In execution of decree passed in favour of the shop against one Nathu s/o Narayan Gawali, the suit lands were put to auction in the year 1923 or thereabout. Two years thereafter the joint shop was mutually partitioned between the two brothers and suit lands fell in the share of deceased Motilal and since then he is the sole owner of the same and in possession of it. For the last 47 years preceding institution of the suit, deceased Motilal as owner of the land has been in open uninterrupted and continous possession of the lands to the knowledge of the deceased Kanhaiyalal. The rights, if any, of Kanhaiyalal were extinguished 47 years back and deceased Motilal is the sole and absolute owner of the lands. It was denied that deceased Motilal was financially weak or that he had no land. It was also denied that suit lands were given by Kanhaiyalal to Motilal for grazing bullocks or that Motilal was licensee in respect of the land. The execution of the will dated 31-12-1965 in favour of the plaintiff Vishnunarayan by Mst. Sitabai was denied. In the alternative it was submitted that the same was got executed taking undue advantage of her mental and physical weakness and the same is not binding on the defendants. As deceased Kanhaiyalal had no right or title over the suit land, there were no question of any such right devolving on Mst. Sitabai. The will executed by Mst. Sitabai in favour of the plaintiff conferred no right or title in respect of the suit land. It was also submitted that deceased Motilal in exercise of his title over the suit land some 25 years back invested Rs. 5,000/- on the same, had it ploughed by a tractor and made it cultivable. All this was done with full knowledge of Kanhaiyalal, who never objected to the same. Mesne profit as claimed was denied. It was further submitted that deceased defendant Motilal had on 5-6-1970 executed a registered will in favour of his son defendant No. 2 Rameshwar making a bequest of the suit land to him. However, by way of abundant caution other legal representatives of deceased Motilal were also brought on record. On these grounds the legal representatives of defendant deceased Motilal for dismissal of the suit.
5. The trial Court, Civil Judge Class II, Mhow, District Indore, by judgment and decree dated 24-8-1977 found that deceased Kanhaiyalal had not given the land on licence to deceased Motilal for grazing the bullocks or because his financial condition was poor; that deceased Motilal had for the preceding 47 years as owner been in continuous open possession without interruption of the land and has perfected his title by prescription; that Mst. Sitabai had on 31-12-1965 executed a will in favour of the plaintiff and the will was valid and binding and not suspicious; that defendants’ possession over the suit land on 28-4-1977 did not become unlawful. The plaintiff is not entitled to possession of the suit land and the plaintiff is also not entitled to mesne profit Rs. 13.50 with these findings the Civil Judge dismissed the suit.
6. In appeal by the plaintiff, the first appellate Court by judgment and decree dated 5-1-1979 found it not proved that Kanhaiyalal gave the land on licence to Motilal for grazing cattle or that his financial condition was not sound; that it was not established that Motilal got the land in mutual partition with Kanhaiyalal, and set aside the finding to this effect recorded by the trial Court. The first appellate Court then proceeded to raise a presumption that deceased Kanhaiyalal had given the suit land to deceased Motilal for grazing his cattle. The first appellate Court held that deceased Motilal was having hostile title over the suit land to the knowledge of Kanhaiyalal uninterrupted for more than 30 years and had thus perfected his title by adverse possession and was not liable to be evicted. With these findings he dismissed the appeal and upheld the judgment and decree of the trial Court.
7. At the hearing of the appeal Shri G. M. Chafekar, learned Senior Advocate, representing the plaintiff-appellant gave out history of the case and read out pleadings of the parties. He emphasized the essential ingredients for a party to succeed, in his plea of adverse possession as also the change brought about in Article 65 of the Limitation Act, 1963 as to the point of time from which possession of the defendants can be said to be adverse to the plaintiff. For essential ingredients of adverse possession Shri Chafekar relied on Mst. Dulibai v. Vilayat Ali, 1966 MPLJ S. Note 54. Shri Chafekar submitted that first appellate Court having found that partition between Kanhaiyalal and deceased defendant Motilal not established ought not to have set up a new case to sustain plea of adverse possession taken by the defendants. Shri Chafekar further submitted that permissive possession however long would not perfect title by adverse possession. In support of his argument besides the ruling referred to above Shri Chafekar relied on the following precedents Kodath Ambu Nair v. Secretary of State for India, AIR 1924 PC 150, Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors., AIR 1954 SC 758, Sk. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., AIR 1984 SC 910, Mohammad Dawoodkhan and Ors. v. Mst. Banubi w\o Syed Saidu and Ors., 1950 NLJ 163 = AIR 1950 Nag. 127 and Beni Madhavprasad and Ors. v. Rasiklal Ambalal and Ors., 1959 MPLJ 617 = AIR 1959 MP 23. Shri Chafekar submitted that the trial Court found in favour of the plaintiff that Mst. Sitabai executed registered will Ex.P/1 in favour of plaintiff Vishnunarayan. This finding was not challenged before the first appellate Court and the finding in favour of the plaintiff would have to be accepted.
8. About the question whether title to agricultural land could be acquired by adverse possession Shri Chafekar referred to Full Bench decision of this Court in Kashiram Gari v. Nathu and Anr., 1960 MPLJ 959 = 1960 JLJ 879 where the Bench has inter alia held that bhumiswami right may be acquired by adverse possession and in deference to the same Shri Chafekar submitted that he reserves his right to agitate against the correctness of the Full Bench decision before appropriate forum but so far as this Court is concerned he yields to the decision given therein and would not in view of the decision canvass the substantial question of law set out above. Further on the grounds as aforesaid Shri Chafekar prayed for allowing the appeal and decreeing the suit for possession and mesne profit.
9. Controverting contentions of Shri Chafekar, Shri N. C. Pant, learned advocate representing the respondents submitted that even though mutual partition between deceased Kanhaiyalal and deceased Motilal as claimed by the defendants may not have been established the defendants had put up alternative claim of having perfected their title by prescription and all the necessary ingredients were there in the pleadings. It was wrong to say that the defendants’ pleadings lacked essentials for making out a case of adverse possession. He also submitted that the two Courts after appreciation of evidence on record had recorded findings in favour of the defendant as to adverse possession and same could not be interfered with in second appeal unless it was shown that the finding suffered from error of law within the meaning of Section 100, Code of Civil Procedure. In support of his arguments Shri Pant besides relying on following decisions Harisingh v. Dheerajsingh, 1983 MPWN 53, Mathuralal v. Kundanlal, 1983 MPWN 59, Bafati v. Chiranjilal, 1983 MPWN 108, Daulatiram v. Mulla Saifudin, 1983 MPWN 433, Seeganram v. Magna, 1986 (I) MPWN 87 relied on Manzoor Alikhan and Ors. v. Sukhabasilal, 1974 MPLJ 86 and argued that plaintiff or his predecessor is not shown to be in possession of the suit land within 12 years of the institution of the suit, and, therefore, the suit was barred by limitation. He urged for dismissal of the appeal.
10. The principle that in order to constitute adverse possession the possession must be in denial of the title of true owner, has been recognised in numerous decisions though expressed in different ways. For instance, the licensee cannot claim title only from possession, however, long unless it is proved that the possession was adverse to that of the licensor to his knowledge and with his acquiescence, Kidoth Ambu Nair v. Secretary of State for India, AIR 1924 PC 150. Adverse possession must be adequate in, continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Further, long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea, S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254. Nearly to the above effect though in some greater detail are observations of this Court in Mst. Dulibai v. Vilayat Ali, 1966 MPLJ Noe 54, Mohammad Dawood Khan and Ors. v. Mst. Banubi w\o Syed Saidu and Ors., 1950 NLJ 1163 = AIR 1950 Nag. 127 and Beni Madhav Prasad and Ors. v. Rasiklal Amhalal and Ors., 1959 MPLJ 617 = AIR 1959 MP 23. These decisions further hold that it is for the defendants to establish that their possession was adverse to plaintiff owner to his knowledge and with his acquiescence. Permissive possession is not adverse till defendant asserts an adverse possession, Sheodhari Rai and Anr. v. Suraj Prasad Singh and Ors., AIR 1954 SC 758. This decision also holds that the Court cannot on failure of the defendant to prove his case make out new case for him which is not only made in written statement but it is wholly inconsistent with his title set up by the defendant. Mere termination of the licence does not enable the licensee to claim adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., AIR 1984 SC 930.
11. Keeping the above in mind, examining the present suit the plaintiff had come to the Court with the case that deceased Kanhaiyalal had created licence in favour of deceased defendant Motilal in respect of the suit lands because financial position of Motilal was poor and he was not possessed of any land. The L.Rs. of defendant in their written statement pleaded that the suit lands were purchased in the year 1923 in auction in execution of a decree in favour of the shop jointly owned by deceased Kanhaiyalal and Motilal. Two years later in mutual partition the suit lands fell to share of the deceased Motilal and since then he was in possession as owner of the same and his possession was open, uninterrupted, continuous and to the knowledge of Kanhaiyalal. Nowhere in the statement the defendants pleaded or admitted that the deceased defendant Motilal was a licensee of Kanhaiyalal in respect of the suit lands or was in permissive possession of the same. Though, no issue regarding partition was framed by the trial Court, the trial Court in para 13 of the judgment while discussing issues Nos. 1 and 2 as to plaintiff having given the lands some 40-45 years back on licence to defendant Motilal and defendant having acquired title by adverse possession observed that the land was given in partition to Motilal some 30 or 40 years back and the title and interest, if any, in the land of Kanhaiyalal was extinguished. The first appellate Court in paras 6, 7 and 8 of the judgment held that the plaintiff’s case of licence was not made out using the expression ‘suit lands were given to him for grazing cattle falls to the grounds’. It again reiterated the absence of evidence on the point in opening portion of para 13. Having so held and taking note of the fact that the lands are recorded in Kistabandi Ex.P/7 in the name of deceased Kanhaiyalal, it raised a presumption “that being the case it may be presumed that deceased Kanhaiyalal had given the suit lands to deceased Motilal for grazing his cattle. But, deceased Motilal did something more than for what it was given to him by the said deceased Kanhaiyalal” and then a finding of adverse possession in favour of deceased Motilal. The first appellate Court, however, set aside the finding on partition in favour of defendant recorded by the trial Court.
12. The first appellate Court found licence pleaded by the plaintiff not made out and fallen to the ground. It also found partition pleaded by legal representatives of defendant and the suit lands having fallen to the share of deceased Motilal in the same also not made out. Deceased defendant Motilal at the time of institution of the suit and after his death his legal representatives were admittedly in possession of the suit land. On the pleadings and findings as aforesaid and the legal representatives of deceased defendant Motilal being in possession of the suit lands. Under Section 110 of the Evidence Act, 1872, the burden of proving that deceased defendant Motilal was not the owner was on the plaintiff and this presumption in favour of the defendant and his legal representatives could not be destroyed by raising a presumption in favour of plaintiff by the first appellate Court. The presumption raised by the first appellate Court as to suit lands having been given to deceased Motilal by deceased Kanhaiyalal on licence which allegation the two Courts had found not proved by evidence, should be excluded from consideration. On this being done, on the findings of the first appellate Court the emerging position would make the present case in material respect comparable to facts obtaining in Division Bench decision of this Court in Bansilal Rajaram v. Kesrai and Ors., 1952 NLJ 696 = AIR 1953 Nag. 132 which is referred to in Beni Madhav prasad and Ors. v. Rasiklal Ambalal and Ors. (supra). The difference in the cases is that the property involved in the precedent was house as against agricultural land in the present suit. In the present suit the claim is through a will executed by Sitabai widow of one of the brothers and that brother is said to have derived his title through auction sale in execution of a decree and in the decision the claim was through a sale-deed executed by one of the brothers. The defendant has raised the plea of partition and adverse possession and the plaintiff claimed that defendant was licensee in respect of the suit house. The courts below as seen from paras 2, 3, 4 and 5 of the judgment had found the plea of partition and adverse possession raised by defendant and the pleas of licence urged by plaintiff not made out. This Court (Nagpur High Court) in para 13 of the judgment after referring to untenability of the plaintiff’s plea as to co-ownership and rejecting the same held as under : – …
“On the face of the sale-deed of the year 1901, the plaintiff or his father was entitled to the whole house but for some reason or the other that title was never given effect to, either as regards the whole house or even as regards the moiety, which now, according to the Courts below, could have been conveyed by the vendor to the vendee. As the finding is that the plaintiff never came in possession of the property whatever title, if any, that he may have acquired by that sale deed has been lost by efflux of time.”
In another part of the same para while discussing the untenability of co-ownership urged by the plaintiff-appellant the Court observed as under :-
“The plaintiff came into Court with the distinct allegation that he and his deceased father had all along been in possession of the whole house ever since the execution of the sale-deed until the defendant came in as mere licensee and then refused to vacate the house. Hence in such a case Article 142 is applicable. On the plaintiff’s case he was in possession, and his possession discontinued later resulting in dispossession as a result of the alleged licensees claiming to be the owners of the property.”
On application of Article 142 of the Limitation Act, 1908 in view of the decision above, where the plaintiff sues for possession of dispossession, question whether the suit is within time becomes one of title and without proof of subsisting title plaintiff’s suit must fail. Rajendra Singh and Ors. v. Shantasingh and Ors., 1974 MPLJ 78 (SC) relied on. Further where plaintiff alleged dispossession by the defendant and sues for possession and defendant alleges adverse possession, burden is on plaintiff of proving of taking possession and dispossession by defendant (ibid) (supra). In the instant case the plaintiff has not even pleaded as to when he entered into possession of the land.
13. The two courts below found that the deceased defendant Motilal before the institution of the suit had been in adverse possession to the knowledge of deceased Kanhaiyalal for more than 30 years and this adverse possession commenced sometime nearabout 1925. At the relevant time Limitation Act, 1908, was in force. In Manzoor Alikhan and Ors. v. Sukhabasilal and Ors., 1978 MPLJ 86 where the plaintiff in a suit for possession oh dispossession failed to show possession at any time within 12 years prior to the suit, the suit was held barred under Article 142 of the Limitation Act, 1908. In view of the above, appellant’s argument based on column 3 of Article 65 of Limitation Act, 1963 that 12 years’ limitation for possession of immovable property or any interest therein based on title would commence running from the date when possession of the defendant became adverse to the plaintiff, would not be helpful to the appellant, if the defendant has perfected his title by prescription before the Limitation Act, 1963 came into force in the year 1964. The plaintiff and his predecessor-in-interest deceased Kanhaiyalal, having not been shown into possession of the land for more than 12 years preceding institution of the suit as found by the Courts below, the suit must be held barred under Article 142, Limitation Act, 1908 long before the 1963 Act came into force in the year 1964.
14. Legal representatives of deceased defendant Motilal pleaded that Motilal got the suit land in partition. Further plea was that he had been in possession of the suit land as owner and his possession was uninterrupted, continuous and in the knowledge of Kanhaiyalal. It was not admitted that deceased-defendant Motilal was a licensee of Kanhaiyalal but the plea of adverse possession as put forward above would be relatable not to plea of partition put up in the written statement but only with reference to plea of licence urged by the plaintiff. On these pleadings it cannot be said that the first appellate Court made out a new case in favour of the defendant which was not made in the written statement but was wholly inconsistent with the title set up by the defendant. The observations to the aforesaid effect in Shivdari’s case (supra) would, therefore, not help the plaintiff-appellant.
15. Apart from the above, as held in Seegarm’s case (supra) adverse possession is basically a question of fact and when the two Courts below have on appreciation of evidence which is not shown to suffer from any legal infirmtiy within the meaning of Section 100, Civil Procedure Code reocorded a finding in favour of the defendant, the same could not be interfered with in second appeal. The decisions relied on by Shri Pant referred to in para 9 above would support this view.
16. As a result of aforesaid discussion, the, answers to the substantial questions of law formulated in the appeal reproduced in paras 1 and 2 above would be that title to agricultural land could be acquired by adverse possession, the lower court is right in the facts and circumstances of the case in holding that possession of Motilal became adverse to Kanhaiyalal and that Motilal acquired title to the land in suit by adverse possession. Besides, the suit must be held barred by limitation under Article 142 of the Limitation Act, 1908. No interference, therefore, in the judgment and decree passed by the courts below is called for. The appeal is dismissed with costs. The appellant shall bear his own costs of this appeal and shall pay that of the respondents. Pleader’s fee according to schedule or certificate whichever is less. A decree be drawn up accordingly.