Case Note & Summary
The dispute concerns a property originally owned by Banta, who died on 02.07.1992. Banta had two children: Jit Ram (son) and Sibo (daughter). Sibo filed a suit for declaration based on a Will dated 26.06.1992, which was dismissed. The decree became final. Subsequently, Jit Ram filed a suit for possession of a portion of the property where the respondent Satnam Singh had erected a kachha structure with Banta's permission. The respondent claimed independent interest through a Will from Sibo and alternatively pleaded adverse possession. The Trial Court dismissed Jit Ram's suit, holding that the respondent had perfected title by adverse possession. The First Appellate Court reversed, finding the respondent's possession permissive and not hostile. The High Court in second appeal restored the Trial Court's finding on adverse possession. The Supreme Court held that the respondent's possession was purely permissive, lacking hostility, and the High Court erred in interfering with the factual finding. The appeal was allowed, restoring the First Appellate Court's decree, subject to payment of Rs.50,000/- by the appellants to the respondent for the structure, with conditions for vacating possession.
Headnote
A) Property Law - Adverse Possession - Permissive Possession - Transfer of Property Act, 1882, Limitation Act, 1963, Section 65 - The respondent's possession of the suit property was permissive in character, having been allowed by the original owner Banta. The element of hostility was completely missing, and the respondent could not claim adverse possession. The High Court erred in reversing the finding of the First Appellate Court on this issue. (Paras 9-10) B) Civil Procedure - Second Appeal - Interference with Findings of Fact - Code of Civil Procedure, 1908, Section 100 - The High Court, while exercising second appellate jurisdiction, ought not to have set aside the finding of the First Appellate Court on adverse possession, as it was a pure finding of fact and no substantial question of law arose. The Supreme Court restored the decree of the First Appellate Court. (Paras 9-11)
Issue of Consideration
Whether the High Court was justified in reversing the finding of the First Appellate Court on the issue of adverse possession in a second appeal under Section 100 CPC
Final Decision
Appeal allowed. High Court's judgment set aside on the issue of adverse possession. First Appellate Court's decree restored subject to appellants paying Rs.50,000/- to respondent within four weeks. Respondent to vacate and hand over possession within two weeks after deposit, failing which respondent loses entitlement to the sum and appellants may execute the decree.
Law Points
- Adverse possession requires hostile possession
- Permissive possession cannot be converted into adverse possession without hostile animus
- Second appellate court cannot reverse concurrent findings of fact without substantial question of law
