IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 217/1999 Reserved on:21.6.2010 Decided on:9.8. 2010 ________________________________________________ State of Himachal Pradesh …Appellant. Versus Bhandari Ram. …Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. P.M. Negi, Deputy Advocate General. For the Respondent : Mr. Rajiv Jiwan, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 1.12.1998 passed by the learned District Judge, Bilaspur in Civil Appeal No. 24 of 1990. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of Senior Sub Judge, Bilaspur for declaration to the effect that he is owner in possession of the suit land comprised in Khasra No. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 348/11/1 measuring 19-19 bighas situated in village Jamthal, Pargana and Tehsil Sadar, District Bilaspur by way of adverse possession and appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) be restrained from interfering in the suit land in any manner with alternative prayer that if he was dispossessed during the pendency of the suit, the possession of the suit land be restored to him. According to him, he forcibly entered the suit land in the month of October, 1956 and during his inspection, Patwari Halqua came on the spot and asked him to vacate the possession of the suit land. He did not vacate the possession and remained in open, hostile and uninterrupted possession and also constructed a house over of suit land. According to him, he was never dispossessed by anybody since October, 1956 and his possession was open, peaceful to the knowledge of the defendant-State. It was also averred that he has constructed a pucca house on the suit land. However, his grievance was that the Assistant Collector 1st Grade has passed order on 26.5.1988 ordering his dispossession. The suit was contested by the defendant. The defendant has taken preliminary objection on the grounds of locus standi, estoppel, jurisdiction, notice and maintainability. According to the defendant, the plaintiff was encroacher and warrant of ejectment has been issued by the Assistant Collect 1st Grade on 26.5.1988. The plaintiff filed replication to the written statement filed by the defendant. The trial court framed issues on 18.9.1989. The trial court decreed the suit vide judgment dated 23.1.1990. Defendant feeling aggrieved by the judgment and decree dated 23.1.1990 preferred an appeal before the District Judge. The 3 learned District Judge dismissed the appeal on 1.12.1998. Hence, this Regular Second Appeal by the defendant. Appeal was admitted on the following substantial questions of law: 1. “Whether the Civil Court has no jurisdiction to entertain the suit in view of the bar created by section 171 of the H.P. Land Revenue Act? 2. Whether the Courts below have misinterpreted the documentary evidence on record which are Ex.D-1 to D- 6? 3. Whether the possession of the plaintiff was permissive only in view of the evidence on record?” 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that Civil Court had no jurisdiction to decide the suit in view of section 171 of the Himachal Pradesh Land Revenue Act. He further contended that both the courts below have misread Ex.D-1 to D-6. He lastly contended that the plaintiff has failed to prove the ingredients of adverse possession. 4. Mr. Rajiv Jiwan has supported the judgments and decrees passed by both the courts below. 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. The Court will firstly advert to the oral as well as documentary evidence led by both the parties. The plaintiff has appeared as PW-1. According to him, he has taken the possession of the land measuring 19 bighas 19 biswas bearing in Khasra No. 348/11/1 in the month of October, 1956. He further deposed that his possession is open and uninterrupted. He has raised fencing and at the time when he occupied the land, Patwari visited the spot in the 4 month of October, 1956 for the purpose of Girdawari. Patwari asked him to vacate the land. He told the Patwari that he has been separated by his family and he has no other land except the suit land and he did not vacate the same. He further stated that 14 bighas of land was cultivable and he has also constructed a house on this land. He further deposed that the State has instituted eviction proceedings against him and on that basis, the State wanted to evict him. In his cross-examination, he has admitted that he has occupied the land, 2-4 days before the Diwali and it took him 10 days to raise the fencing. He has further admitted that he has made the land cultivable in the year 1965 and he had engaged 6 labourers for this purpose. The labourers were engaged for 6 months. They used to take Rs. 10/- as daily wage with food. He further admitted that he has constructed the house in the year 1965. It took him 3 months to complete the construction of the house. He did not remember his date of birth. He categorically admitted that he joined the Indian Army in the year 1963 and served for 15 years. 7. PW-2 is Rup Lal. He has prepared tatima Ex.PW-2/A reflecting that the plaintiff was in possession of the entire suit land measuring 19 bighas 19 biswas. He went to the spot pursuant to the orders of Deputy Commissioner on 30.9.1988 and thereafter he prepared the tatima Ex.PW-2/A according to the spot position. He also deposed that he found the possession of the plaintiff on the suit land. According to him, some portion of the suit land was cultivable and the remaining was Ghasani and the plaintiff has also constructed a house on this land. 5 8. PW-3 is Rulia Ram. He has supported the version of PW-1. According to him, he has seen the possession of the plaintiff for more than 33 years. 9. PW-4 is Narainu. He has deposed that he has seen the possession of the plaintiff over the suit land for the last 33 years. However, in his cross-examination, he has admitted that the plaintiff has constructed the house 5-6 years back. 10. Defendant has not produced any witness, however, it has tendered in evidence Ex.D-1 to D-7. Ex. D-1 to D-7 are copies of jamabandi for the year 1954-55 to 1986-87. In these entries the land has been shown to be in possession of the State Government. The trial court has not taken into consideration Ex.D-1 to D-7. The trial court has come to a conclusion that the plaintiff has led overwhelming oral evidence that he was in possession of the entire suit land alongwith house and this fact itself was sufficient to rebut the presumption of truth attached to revenue entries, Ex.D-1 to D-7. It was expected from the trial court to discuss Ex.D-1 to D-7. The learned first appellate court has also committed illegality by not considering jamabandis Ex.D-1 to D-7 on the pretext that the area/measurement of the land shown in the jamabandis varied. 11. The plaintiff joined the Indian Army in the year 1963 and he has worked for 15 years. According to him, he came in possession of the suit land in the year 1956. The Court can take judicial notice of the fact that the recruitment age in the Army is 18 to 21 years. He joined the Indian Army in the year 1963. Meaning thereby that the plaintiff was only between the age group of 11 to 14 in the year 1956. 6 Minor could not take possession of the Government land and the story cannot be believed that he was separated by the family members when he was minor. A suggestion was thrown to him during his cross- examination about his date of birth. Neither he could give his date of birth nor the months of birth of his children. 12. The ejectment proceedings were also initiated against the plaintiff under section 163 of the Himachal Pradesh Revenue Act, which culminated into order dated 26.5.1988. It is in these circumstances, the plaintiff has filed the present suit claiming adverse possession since 1956. Warrant of ejectment was issued against the plaintiff on 29.6.1988 and he has filed the suit on 31.1.1989. The plaintiff has not challenged the orders passed by Assistant Collector 1st Grade, Sadar, Bilaspur by filing an appeal. Order passed by Assistant Collector 1st Grade admittedly is appealable. The defendant has taken a specific preliminary objection that the civil court had no jurisdiction to entertain, try and decide the suit. The defendant has also reiterated this plea in grounds of appeal by specifically stated therein that in view of section 171 of the Himachal Pradesh Land Revenue Act, civil court had no jurisdiction to entertain, try and decide the suit. The question of jurisdiction was required to be gone into by the civil court, as raised. The trial court has made a cursory observation that this ground was not pressed. The Court is of the considered opinion that the question of jurisdiction was required to be gone into, as pleaded. The first appellate court has not at all adverted to this ground while dismissing the appeal preferred by the defendant. The trial court could not declare the order passed by the Assistant 7 Collector 1st Grade on 26.5.1988 illegal in view of the observations made hereinabove. The civil court could not go into the validity of this order in view of section 171 of the Himachal Pradesh Land Revenue Act. 13. Their Lordships of the Hon’ble Supreme Court in T. Anjanappa and others versus Somalingappa and another, (2006) 7 SCC 570 have explained the entire concept of adverse possession as under: “12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession. 8 "Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at 902). 15. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. 15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the 9 rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537). 18. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner. 20. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition 10 of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 14. Their Lordships of the Hon’ble Supreme Court in P.T. Munichikkanna Reddy and others versus Revamma and others, (2007) 6 SCC 59 have held that to assess a claim of adverse possession, two pronged enquiry is required: 1. “Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” 15. Thereafter their Lordships of the Hon’ble Supreme Court have discussed the new consideration in adverse possession law as under: 10. In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference: 11 "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol." 11. This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention 12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess. 13. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`- vis intention to possess. This distinction can be marked very distinctively in the present circumstances. 14. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession 12 in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. 15. The High Court observed: "It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession." 16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse." 17. The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: 13 "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention." 18. On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 _ 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi').". If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite 14 animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." 19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. 20. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles. 21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context