RSA No.4576 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4576 of 2010 (O&M) Date of Decision: 13.12.2011 Kanhi Ram ...Appellant Vs. Umesh Kumar & Anr. .....Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Sanjay Mittal, Advocate, for the appellant. Mr.Jaswant Jain, Advocate, for the respondents. --- A.N.Jindal, J. Suit for possession regarding the land measuring 2 Bighas 4 biswas fully described in the heading of the plaint, situated in the town of Narnaul, filed by the plaintiffs/respondents (herein referred as the plaintiffs) against the defendant/appellant (herein referred as the defendant) was decreed on 27.09.2007 and the appeal preferred against the said judgment and decree was also RSA No.4576 of 2010 2 dismissed by the District Judge, Narnaul on 17.3.2010. As such the defendant has come up in appeal. The factual matrix of the case is that the plaintiffs are the owners of the suit property by way of sale deed dated 9.7.1991 from the previous owners. However, the defendants being in illegal possession of the same are liable to surrender the possession. It was further averred that the defendants had filed a suit for permanent injunction regarding the same property but the same was dismissed as withdrawn. Meanwhile the plaintiffs had also filed an application for ejectment of defendant No.1. The defendant in that suit took up the plea that he was in adverse possession of the suit property and not as tenant. Thereafter, the plaintiffs had withdrawn the suit before the revenue court, because of denial of tenancy by defendant No.1. Since all the three defendants were in illegal possession, therefore, the plaintiffs had to file the present suit. Defendant No.1 strongly contested the suit, wherein he denied the title of the plaintiff and submitted that he having been in adverse possession of the suit property was the owner of the same. He denied if he had leased out the property to defendant Nos.2 and 3. Thus, he prayed for dismissal of the suit. Defendant Nos. 2 and 3 were proceeded against ex parte. Replication was also filed. From the pleadings of the parties trial court framed the following issues:- 1. Whether the plaintiff is owner of the suit property? OPP RSA No.4576 of 2010 3 2. Whether the relationship of landlord and tenant still exists between the plaintiff and defendant No.1?OPP 3. Whether the plaintiff is entitled to possession of the suit property?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs are estopped to file the present suit by their own act and conduct? OPD 7. Whether the defendant No.1 has become owner of the suit property by way of adverse possession. 8. Relief. The trial court after examining the evidence decreed the suit of the plaintiffs. The defendant Mohariya by that time had died and therefore Kanhi Ram legal representative of Mohariya filed the appeal which was also dismissed. Arguments heard. Record perused. The undisputed facts are that the plaintiff is the owner of the suit property by way of sale deed dated 9.7.1991. Defendant No.1 denied the relationship of landlord and tenant before the revenue court. Defendants Nos.2 and 3 were inducted as tenants by defendant No.1 during the litigation. RSA No.4576 of 2010 4 The first plea raised by the defendant (appellant) before this court is that since he is recorded in possession of the suit property as tenant, therefore, it was only the revenue court which was to decide about the said question as such this issue could not be decided in favour of the plaintiff. The contention cannot be accepted in view of the judgment in the case of Bharto Vs. Nathu 1986 PLJ 433, wherein this court in the similar circumstances of the case held that when the defendants forced the plaintiff to knock the door of the civil court by taking the plea which could derive adversary to go to civil court then they cannot blow the hot and cold in the same breath and plead to say that civil court jurisdiction is barred. Their Lordship made the following observations: “4. I have heard the learned counsel for the parties and I am of the view that the finding of the learned Senior Sub Judge on issue No.(4) is not correct. Mst. Chalti sought remedy for ejectment of the respondent before the revenue Courts and exhausted the same up to the stage of appeal before the Commissioner. She, however, could not succeed as the respondent denied her title as also relationship of landlord and tenant between her and himself. She was, therefore, forced to seek remedy for declaration of her title and possession in the civil court. Neither in the previous suits filed by her nor in the instant suit the respondent ever accepted his character as tenant under her. He instead denied the fact that Mst.Chalti was RSA No.4576 of 2010 5 the daughter of Lehri deceased and in fact pleaded ownership of the suit land by way of adverse possession as also in his capacity as a collateral and sole heir of Lehri. In this situation, it was not at all just and proper to relegate the plaintiffs once again to seek remedy for ejectment of the respondent, in his character as tenant, before the revenue authorities. I am fortified in this view by a Division Bench judgment of this Court in Sada Ram Vs. Gajjan, 1970 PLR 223, wherein it was held- “That the denial of the relationship of landlord and tenant by the tenant in his written statement to a suit for ejectment determines a tenancy forthwith, thus giving the right to the landlord to the possession of the leased property, when the lease is not for a fixed period but from year to year or at will as in the present cases. A year to year tenancy or a tenancy at will gets determined by such a denial or renunciation of title.” 5. The Division Bench judgment in Sada Ram's case (supra) was followed by P.C.Pandit, J. in Smt.Suhag Rani Vs.Shri Sukhdev etc., 1971 Current Law Journal 391. The learned Senior Sub Judge has placed reliance on the judgment of B.R.Tuli J. In Daulat Ram and Nepal Singh V. Payare Lal and Bhagwan Sahai, 1975 PLJ 12. In Daulat Ram's case (supra), however, the Division Bench judgment in Sada Ram's case (supra) was not RSA No.4576 of 2010 6 noticed. Following the dictum of the Division Bench in Sada Ram's case (supra), I hold that after declaration of title of Mst. Chalti and the appellants who are her legal heirs to the suit land the decree for possession as granted by the learned trial court ought to have been upheld. The Civil Court had jurisdiction to grant the decree in the given circumstances. The finding on issue No.(4) returned by the learned trial court has been wrongly reversed by the learned Senior Sub Judge.” Since the defendants themselves have denied relationship of landlord and tenant, therefore, now they are estopped to say that civil court has no jurisdiction to try the suit. Now coming to the plea of defendant No.1 regarding adverse possession, the same also appears to be not well founded for the reasons that the appellant has not set up any particular date from which he is in possession and what was the nature of his possession and whether the fact of adverse possession was known to other party and his possession was unobstructed, continuous, hostile, open and undisturbed. Similar observations were made by the Apex Court in case Saroop Singh Vs. Banto & Ors. 2005 (4) RCR (Civil) 599, wherein it was observed as under: “30. Yet again In Karnataka Board of Wakf V. Government of India and Ors. 2004 (2) RCR (Civil) 702 RSA No.4576 of 2010 7 (SC): (2004) 10 SCC 779, it was observed. “.......Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” Again the law of adverse possession was summed up in case Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors. 2008 (2) RCR (Rent) 337, wherein their Lordships held as under:- “12. In Secretary of State for India v. Debendra Lal Khan AIR 1934 PC 23, it was observed that the ordinary RSA No.4576 of 2010 8 classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. 13. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, while following the ratio of Debendra Lal Khan's case (supra), observed as under: "But it is well settled that in order to establish adverse possession of non-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non- possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be one the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co- heirs there must be evidence of open assertion of RSA No.4576 of 2010 9 hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster." The court further observed thus: "The burden of making out ouster is on the person claiming to displace the lawful title of a co- heir by his adverse possession." 14. In S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Hidayatullah, J. speaking for the court observed as under:- "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. There is no evidence here when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." 15. The facts of R. Chandevarappa & Others v. State of Karnataka & Others (1995) 6 SCC 309 are similar to the RSA No.4576 of 2010 10 case at hand. In this case, this court observed as under:- "The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant." RSA No.4576 of 2010 11 18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:- "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: RSA No.4576 of 2010 12 (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376) 30. `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite RSA No.4576 of 2010 13 animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)" Even according to the defendant No.1, he is not in possession of the property. He has sublet the property to defendant Nos. 2 and 3 but the defendant Nos. 2 and 3 have never contested the suit. They have not appeared in the witness box to support the case of defendant No.1. No document of tenancy under defendant No.1 has been proved on record. Defendant Nos. 2 and 3 did not file appeal or regular second appeal. Even otherwise, the defendant/appellant has failed to prove as to on which date he came into possession and from which date he declared himself in hostile possession against the true owner. He has also failed to establish every ingredient for claiming adverse possession. Therefore, this plea raised by the appellant is turned down. The judgments passed by the courts below are well founded and well reasoned and have been passed while discussing and appreciating the evidence on record. No element of perversity or illegality has been seen which may invite interference by this court at this regular second appeal. No substantial question of law arises for determination of this court. No grounds to interfere. Dismissed. (A.N.Jindal) 13.12.2011 Judge rp