TMI Blog1975 (6) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... - per annum and was in possession of the land. During his illness during the last re-settlement operation the defendants dispossessed the plaintiff from the land. The plaintiff then served notice on the defendants demanding vacant possession of the land. Defendant No. 6 complied but defendants Nos. 1 to 5 did not. Hence he filed the present suit for recovery of possession. 3. Defendants Nos. 1 to 5 have filed a joint written statement while defendant No. 6 has tiled a separate written statement, they have denied that defendant No. 6 was ever a tenant under the plaintiff and that he had vacated the land on demand by the plaintiff as alleged by him. They have also denied that defendants 1 to 5 trespassed on the suit land as alleged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been possessing the land as a part of their own patta land since the days of their fore-fathers. The case of permissive possession is a new case not pleaded by any of the parties, but made out by the lower appellate court. A court cannot, under the law. make out a new case not pleaded by the parties. The above finding, therefore, is to be quashed. 6. But for this erroneous finding the learned first appellate court, otherwise, upheld the judgment and decree of the trial court. 7. Shri J.N. Sarma, learned counsel appearing for the respondents strenuously submits that even without this finding of the first appellate court, the judgment and decree of the first appellate court are sustainable in law. He submits that on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hostile to the real owner and amounted to a denial of his title to the property claimed. Their Lordships of Privy Council in AIR 1919 PC 62 have held: Where the person claiming to be owner stands by while others continue to possess not by any derivative title but in practical contravention of his legal rights the possession of such other persons is adverse to the person claiming to be the owner. The law does not require that the claimant to ownership must in such circumstances be shown to have protested that his rights were being violated and that the possession went on adversely to his protests. This case applies in all force to the facts of the present case, In the instant case defendants 1 to 5 were possessing the land in pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported in AIR 1972 J K 75, where it was held: the mere fact that the defendants used the land as a compound or as a passage or that they casually used it for preparing shingles over it cannot be styled as acts of user which the real owner may take notice of as acts Of adverse claim. His Lordship has further observed: The kind of possession which is sufficient in one may not be sufficient in another, in the case of properties like vacant building site the presumption of possession following title can be reasonably applied as no act of possession can be exercised in relation to it except by constructing a building on it. This case is distinguishable on facts. It is not the plaintiff's case in the case in hand that d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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