SUPREME COURT OF INDIA

Before:- V.N. Khare and S.N. Variava, JJ.

Civil Appeal No. 159 of 1991. D/d. 20.9.2000.

Saikhom Gouramani Singh and Ors. - Petitioners

Versus

Saikhom Ningthem Singh and Ors. - Respondents

Limitation Act, 1963, Articles 64 and 65 - Adverse possession - Suit for eviction and declaration - High Court partly decreed suit in respect of ⅓ share of defendant no. 3 - Appeal filed - Held, materials on record reveals that defendant no.3 was in possession of disputed land but shifted to other house about 4/5 years prior to filing of suit after selling his share to defendant no. 1 - Thus, High Court was in error in holding that defendant no. 3 was not in possession - Since he have been in possession for last 30 years thus, acquire title by adverse possession in respect of his share along with defendant no. 1 - Since suit against him, was barred by time, thus, suit was in part dismissed against defendant no. 3 also - Appeal allowed.

[Para 3]

ORDER

1. Ms. Rajni Prasad accepted notice. She does not propose to file any objection. In the absence of any objection, we find, the cause shown is sufficient. We, therefore, condone the delay. I.A. No. 3 is allowed. Let the heirs mentioned in paras 2 and 3 be substituted in place of appellant nos. 1 and 3 respectively.

2. This is defendants' appeal. The plaintiffs-respondents filed a suit for eviction of defendants from the land by demolishing katcha house and further cancelling their names from the revenue records and also for a declaration that the sale deed dated 17.1.1972 is null and void. The said suit was decreed. However, the First Appellate Court set aside the decree of the trial court and dismissed the suit. The High Court in second appeal partly decreed the suit by holding that since there was no evidence regarding possession of defendant no. 3 in respect of land, therefore, he did not acquire title by adverse possession. Thus the suit was decreed in respect of 1 /3rd share of defendant no. 3. It is against the said part of the decree of the High Court the defendants are in appeal before us.

3. Learned Counsel for the appellant advanced two arguments. The first argument is that the lease deed relied upon, was not a deed of title and the High Court was not correct when it held that Exhibit A-3 is a deed of title. The second sub- mission is that the High Court was in error in holding that suit to the extent of 1/ 3rd share of defendant no. 3 was liable to be decreed as there was no evidence on record that defendant no. 3 was ever in possession over the land in dispute. We have looked into the record and find that Sakhenba Singh, P.W. 1 in his statement stated that Sekhor, Gouramani Singh and Kulachandra lived in the suit land together about 30 years ago in a common house. But Kulachandra Singh had shifted from the suit Ingkhol (land) to some other Ingkhol about 4/5 years ago. It is, therefore, admitted that defendant no. 3 was in possession of the disputed land but shifted to some other land about 4/5 years prior to filing of the suit. Th. Chamor Singh, D.W., stated that defend- ant no. 3, Kulachandra Singh had shifted to a different Ingkhol within the village Khangabok which lies just to the north of the suit Ingkhol about 3/4 years ago after selling out his share in favour of defend- ant no. 1. Similarly Th. Thopa Singh, D.W.2, also stated that about 3/4 years ago Kulachandra Singh left the suit Ingkhol to another Ingkhol within the said village, which lies to the north of the suit Ingkhol. Thus the aforesaid witnesses stated that defendant no. 3 continued in possession over the disputed land and it was only 3/4 years back he shifted from the said land to another land after selling the same to defendant no. 1. We, therefore, find that the High Court was not correct when it held that defendant no. 3 was not in possession over the said portion of the land. Once it is found that defend- ant no. 3 has been in possession for the last 30 years, defendant no. 3 also acquired title by adverse possession in respect of his share in the property along with defendant no. 1. Since, the suit was not filed within the period of limitation it was liable to be dismissed against defendant no. 3 also.

4. Consequently, the judgment under appeal to the extent stated above, is set aside and the appeal is allowed in part. There shall be no order as to costs.

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