IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 146 of 2017 . Date of decision: 27.4.2017 [ENTITY] Appellant/Plaintiff. Versus [ENTITY] and others Respondents/Defendants Coram The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting ?1 No For the Appellant : Mr. [ENTITY], Advocate. For the Respondents : [ENTITY], Judge (Oral)
CMP(M) No. 412 of 2017 There is a delay of 67 days in filing of the appeal, which is sufficiently explained in paragraphs 2 to 4 of the application. The application is duly supported by the affidavit of applicant/appellant. Accordingly, the application is allowed and the delay of 67 days in filing of the appeal is condoned. Application stands disposed of.
Appeal be registered.
2. This regular second appeal under [SECTION] of [ACT] has been filed against the judgment and decree passed by learned Additional District Judge (II), Shimla on 24.8.2016 in Civil Whether reporters of Local Papers may be allowed to see the Judgment ?yes [CASE NUMBER] whereby he has upheld the judgment and decree passed by learned Civil Judge (Jr.Division), Chopal, .
District Shimla on 20.6.2012 in [CASE NUMBER] and dismissed the suit of the plaintiff which was primarily based on the plea of adverse possession.
For the sake of convenience the parties are referred to in the same manner in which they have been referred in the impugned
3. to judgment and decree of the learned Courts below.
It was averred by the plaintiff that the suit land was joint property of the mother of the plaintiff and other co-owners and by way of succession and inheritance, the plaintiff had acquired the share in the land described as Khasra No. 3995 alongwith other land on the death of his mother. The co-sharers/co-owners in the year 1987 had partitioned the whole joint land in a family arrangement and in that partition, the land comprised in Khasra No. 3995 fell to the share of [ENTITY] son of Sh.
[ENTITY], who on 10.2.1992 sold the land to the plaintiff for a consideration of Rs.3000/- and possession was handed over to him on the spot.
However, sale deed could not be executed because there was an entry of mortgage in the jamabandi and [ENTITY] had promised to execute the same in favour of the plaintiff after redemption of mortgage but he unfortunately expired. The plaintiff claimed to be in open, peaceful, hostile and continuous possession w.e.f.10.2.1992 which according to him had ripened into an adverse possession.
4. The defendants filed written statement raising various preliminary objections of maintainability, locus-standi, estoppel, valuation of suit and non-joinder of necessary parties. On merits, it was stated that the suit land was earlier in the ownership and possession of [ENTITY], who had two sons [ENTITY] and [ENTITY], upon whom the land devolved. [ENTITY] had .
two sons [ENTITY] and [ENTITY]. [ENTITY] died issueless in the year 1999 and [ENTITY] also died and he had a son [ENTITY], daughter [ENTITY] and [ENTITY] and wife [ENTITY] and denied the plaintiff to be in possession of the land on the ground that there was no occasion for [ENTITY] to have executed an agreement with the plaintiff as alleged in view of other collateral, who was alive at that time and in case the plaintiff had executed any agreement with the plaintiff in the year 1992, there was sufficient time for him to get executed the sale deed as [ENTITY] died only in the year 1999.
5. On the pleadings of the parties, the learned trial Court framed the issues on 14.12.2010:
1. Whether the plaintiff is entitled for declaration that he has become owner in possession of suit land by way of adverse possession, as prayed? .OPP.
2. Whether the suit is not maintainable? OPD
3. Whether plaintiff has no locus-standi to file the present suit? OPD
4. Whether plaintiff is estopped by his own act, conduct and acquiescence from filing the present suit?
5. Whether the suit is not properly valued, if so, its effect?
6. Whether the suit is bad for non-joinder of necessary parties? OPD.
7. Whether plaintiff has not come to the Court with clean hands? OPD.
8. Relief.
6. After recording the evidence and evaluating the same, the suit filed by the plaintiff was dismissed by the learned trial Court and the appeal filed against the said judgment and decree, met with the same fate. It is, however, against the concurrent findings of fact that the instant .
appeal has been filed before this Court.
7. On hearing the learned counsel on either sides and going through the pleadings on record, I find the present is a case where the plaintiff could not have claimed title in the suit land by way of adverse possession as it is by now well settled that the plea of adverse possession can only be used as a shield and not as a sword and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in [PRECEDENT] wherein it was held as under:
"8. There cannot be any quarrel to this extent that the judgments of the Courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
[SECTION] of the [ACT] reads as follows:
"141. Law declared by Supreme Court to be binding on all Courts. The law declared by the Supreme Court shall be binding on all Courts within the territory of India."
8. .A mere reading of [SECTION] of the [ACT] brings into sharp focus its expanse and its all pervasive nature. [SECTION] of the [ACT] unequivocally indicates that the law declared by the Hon'ble Supreme Court shall be binding on all Courts within the territory of India.
9 Once this Court held the suit of the plaintiff to be not maintainable, then the instant appeal would also not be maintainable.
Adverting to the plea of adverse possession, once it is held that the suit itself was not maintainable, then any findings recorded by the learned Courts below with respect to the possession are not sustainable, much less operate as resjudicata.
10. Mr. [ENTITY], learned counsel for the plaintiff has vehemently contended that he is in possession of the suit land and his possession be protected till the time he is not evicted except in due process of law.
11. As observed earlier, once this Court held that the suit of the plaintiff to be not maintainable, then Court is precluded from rendering any findings on merits of the case including the findings regarding possession. However, at the same time, the Court cannot ignore the settled legal position that where a person is in settled possession of the property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the actual owner of the property, except by recourse to law and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in [PRECEDENT]. Relevant observation of the judgment reads thus:
"8 It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, (1968) 2 SCR 203 at pp.208-210: (AIR 1968 SC 620 at pp.622-23). This Court in that judgment cited with approval the well-known passage from the .
leading Privy Council case of [PRECEDENT] at p. 299: (AIR 1924 PC 144) where it has been observed (p-208) (of SCR): (at p.622 of AIR):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
12. This legal position was reiterated by the Hon'ble Supreme Court in [PRECEDENT].
13. Yet, again when the matter came before the Hon'ble three Judges in [PRECEDENT], it was reiterated by the Hon'ble Supreme Court that an occupant in "settled possession" cannot be dispossessed without recourse to law. The relevant observations are re-
produced here-in-under:
"6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by [ENTITY]. In [PRECEDENT], Sir [ENTITY] summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being [PRECEDENT]. In-between, to quote a few out of severals, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the .
submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in [PRECEDENT], "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause."(AIR p.5, para 13) In the oft- quoted case of [PRECEDENT], this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim - 'Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)' and said:
(AIR p.1175, para 20).
"A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time".
In [PRECEDENT], this Court held that the law forbids forcible dispossession, even with the best of title. In [PRECEDENT], it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. .
Jagat Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to [ENTITY] and Ors.
Vs. [PRECEDENT], [ENTITY] and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and [ENTITY] and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In [ENTITY] & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In [ENTITY] and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and
(iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the .
instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession'(SCC p.527, para 12):
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of r the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of [ENTITY] and Ors.(supra) and [ENTITY] and Ors. (supra), the Court has approved the statement of law made in [PRECEDENT], wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re- acquiring possession over his property."
14. In view of the aforesaid discussion, the appeal is dismissed, leaving the parties to bear their costs. However, it needs to be reiterated and clarified that this Court has not rendered any findings with respect to actual possession of the suit land by either of the parties over the land in .
dispute. In case the plaintiff-appellant is actually found in possession of the suit land, he shall not be evicted from the same, save and except, in accordance with law. Pending application, if any, also stands disposed of.
April 27, 2017. ( [ENTITY] ) (GR) Judge