IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 61 of 2001. Reserved on : 15.9.2011. Decided on: 26.9.2011. __________________________________________________ Shri Roshan Lal … Appellant. Versus Shri Kamaljit Singh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta and Mr. Janesh Gupta, Advocates. For the Respondent : Mr. R.L. Sood, Sr. Advocate with Mr. Sanjeev Kumar, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The appellant, who was defendant in the learned trial Court, is in appeal against the judgment dated 1.11.2000 passed by the learned Additional District Judge, Solan, H.P. in Civil Appeal No. 22-S/13 of 2000, titled Shri Kamaljit Singh versus Shri Roshan Lal, whereby the judgment dated 18.5.2000 passed by the learned Senior Sub Judge, Solan, H.P. in Civil Suit No. 518/1 of 1994, titled Kamaljit Singh versus Roshan Lal, dismissing the suit filed by the respondent herein as plaintiff for grant of a decree of declaration with consequential relief of possession and perpetual prohibitory injunction, has been reversed and the suit filed by the plaintiff has been decreed for the relief of possession. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. For the sake of convenience, the parties to the present appeal shall hereinafter be referred to by their status in the learned trial Court, that is, defendant and plaintiff, respectively. 3. Brief facts of the case may be stated thus. According to the plaintiff, he is owner in possession of the land comprised in Khata/Khatauni No. 418/712, Khasra No. 521, measuring 104 square meter, situate in Mauza Saproon, Tehsil and District Solan, H.P. as per copy of Jamabandi for the year 1989-1990 (suit land). The defendant who has nothing to do with the suit land nor has any right, title or interest in the same, taking undue advantage of the absence of the plaintiff and his predecessor-in-interest in the recent settlement conducted during the year 1982-1983 had got the revenue entry in respect of the suit land changed in his favour in the column of possession. Such entry is not only wrong, illegal and superfluous but against the factual position on the spot. The defendant has never been in possession of the suit land. However, on the basis of the aforesaid entry, he started interference in the lawful ownership and peaceful possession of the plaintiff over the suit land. It was further pleaded that though it was not admitted that the defendant is in possession of the suit land, yet in case the court came to the conclusion to the contrary, in that event, a decree for possession was also prayed for. A prayer for grant of a decree for perpetual prohibitory injunction restraining the defendant from causing any interference in the peaceful possession of the plaintiff over the suit land, causing any damage to the same and changing its nature in any manner, whatsoever, was also made. The plaintiff came to know about the aforesaid wrong entry in the revenue record in the last week of April, 1994. Thereafter, he requested the 3 defendant many times to get the same corrected. The defendant had been promising and assuring to do the needful. However, lateron on 25.10.1994, he with an intent to grab the suit land refused to do so. 4. The suit was contested by the defendant on preliminary objections regarding limitation, estoppel and valuation besides setting up plea of adverse possession. On merits, it was pleaded that the defendant has been coming in continuous, open, notorious and hostile possession of the suit land in assertion of his right for the last more than 12 years and has thus, acquired title to the same by way of adverse possession. The suit was hopelessly barred by time and without any merit. The revenue entries depicting the plaintiff as owner of the suit land are wrong, illegal and not binding upon the defendant. The possession of the defendant over the suit land has been rightly recorded during settlement operations carried out in the year 1979-1980 and not in the year 1982-1983 as alleged by the plaintiff. The plaintiff was well aware of possession of the defendant over the suit land. The suit of the plaintiff deserved dismissal being vexatious and superfluous. It was denied that either the plaintiff made any request for correction of the revenue entry or the defendant ever promised to do so. 5. On the above pleadings, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is owner in possession of the suit land and entries in favour of the defendant are wrong, illegal and liable to be corrected and plaintiff is entitled to the relief as claimed? OPP. 2. Whether the suit is barred by time? OPD. 4 3. Whether the plaintiff is estopped from filing the suit, as alleged. OPD. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether defendant has become owner by adverse possession? OPD. 6. Relief. 6. After the parties led evidence and were heard by the learned trial Court, the suit was dismissed by holding issue Nos. 1 & 4 in negative and the remaining issues in affirmative. 7. Being aggrieved the plaintiff carried the matter to the learned First Appellate Court which allowed the appeal and decreed the suit for the relief of possession. 8. It is how the defendant is before this Court in the present regular second appeal. The appeal has been admitted on substantial questions of law Nos. 1, 3 & 4 as formulated in the grounds of appeal which are as under:- 1. When during the course of settlement operations the possession of the defendant- appellant was recorded as possessory over the disputed land, was not the presumption of truth attached to the such entries in the revenue records under the Evidence Act as well as H.P. Land Revenue Act, could such entries be ignored by the Lower Appellate Court by holding that the examination of the settlement authorities was essential to prove the notice to the plaintiff-respondent for such entries? 3. Whether the findings of the Lower Appellate Court are illegal, erroneous and perverse for holding that the defendant-appellant did not plead or prove the ingredients of adverse possession, are not such findings the result of 5 misreading the pleadings and misappreciating the oral and documentary evidence? 4. Whether the possession of the defendant- appellant and overt act of reclaiming the land making it cultivable, stood duly proved from the revenue records, according to the statutory period on the date of institution of the suit? Was it not sufficient to assert the hostile possession which was continued for more than 40 to 45 years? Are not the findings of the Lower Appellate Court wrong, illegal and erroneous in holding that there was lack of pleadings and proof regarding the plea of adverse possession raised by the defendant- appellant? 9. I have heard the learned counsel for the parties and gone through the record. 10. Since the suit of the plaintiff is based on title and the defendant has set up plea of adverse possession, it shall be governed by Article 65 of the Limitation Act. Thus, before the substantial questions of law for determination are taken up for discussion and decision, it shall be appropriate to notice the law on the subject which is by now fairly settled by a catena of decisions rendered by the Hon’ble Supreme court as also this Court. 11. The broad parameters required to be established by a person, who claims adverse possession, have been annunciated by the Hon’ble Apex Court in Karnataka Board of Wakf v. Government of India and others, (2004) 10 Supreme Court Cases 779, wherein it has been held as under vide para 11 of the judgment:- 6 “In the eye of 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 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. (See : S M Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka). 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma).” 7 12. The Hon’ble Supreme Court while reiterating the above ingredients has further held in T.Anjanappa and others v. Somalingappa and another, (2006) 7 Supreme Court Cases 570 “that mere possession howsoever long does not necessarily mean that it is adverse to the true owner”, vide para 20 of the judgment, which is as under:- “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 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.” 13. In another authoritative and exhaustive pronouncement of law reported as P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 Supreme Court Cases 59, the Hon’ble Supreme Court has further emphasized that (1) starting point of adverse possession is of equal importance; (2) even an unduly long and undisturbed possession does not prove the intention of the person claiming title by adverse possession; (3) the initial burden lies on the land owner to prove his title and 8 possession, the onus then shifts to other side to prove title by adverse possession and (4) since right to property is a human right, adverse possession should be considered in that context against the background that Courts around the world are taking an unkind view to the concept of adverse possession, should be kept in mind. (Emphasis supplied). 14. It has further been held by the Hon’ble Supreme Court in Annakili v. Vedanayagam & Ors., AIR 2008 Supreme Court 346, vide para 22 of the report, as under:- “Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.” 15. The law laid down by this Court in Hari Datt and others v. Sapuran Dass, 1987 Sim. L.C. 179 and Devi Chand v. Raj Dulari, 1992 (2) Sim. L.C. 248, is also to the similar effect. 9 16. The substantial questions of law for determination in this case are required to be answered in the light of the above legal principles and I proceed to undertake the exercise. Substantial Questions of Law No. 1, 3 & 4: 17. Since all these questions are inter-connected requiring common appreciation of facts and law, the same are taken up together for discussion and decision. 18. The suit was filed on 15.11.1994. The defendant filed written statement on 12.3.1996, wherein it was pleaded that he “has been coming in continuous, open, notorious and hostile possession in assertion of his right for the last more than 12 years”. Thus, according to the defendant, his possession over the suit land dates back prior to March, 1984. However, the starting point of possession and when the same became hostile to the title of the plaintiff was not specified. The nature of possession was also not disclosed. In Jamabandis, Ext. P1 (1955-56) and Ext. P2 (1963-64), Khasra No. 252 of which the suit land is a part, is recorded in the self cultivating possession of the then owner thereof, namely, Shri Heera Nand. Thereafter, in Jamabandi, Ext. P3 (1974-75), Khasra No. 445/252, which corresponds to the suit land, is recorded in ownership and possession of Smt. Krishan Kaur, mother of the plaintiff. 19. The possession of the defendant and his mother, Smt. Kaulan over the suit land as “Kabijaan” was reflected for the first time in Parcha Khatauni Ext. D1. However, a perusal of this document would go to show that it is nowhere reflected therein as to which period the same pertains except that it was attested and issued on 30.9.1999. Even otherwise Parcha Khatauni is not record 10 of rights in the strict sense of the term and as such no presumption of truth is attached to the same. The entry with regard to possession of the defendant and his mother, Smt. Kaulan as “Kabijaan” was carried forward in Misal Haquiat 1982-83 (Ext. PW1/B and Ext. D2 and Jamabandi 1984-85 Ext. D3). Thereafter, possession of the defendant alone was recorded in Jamabandi 1989-90 (Ext. PW1/A and Ext. D4), 1994-95 (Ext. D5). 20. It can be safely gathered from the above revenue record that the entry reflecting possession of the defendant and his mother, Smt. Kaulan over the suit land as “Kabijaan” was reflected in the record of rights in Misal Haquiat 1982-83 (Ext. PW1/B and Ext. D2). It being so and the suit having been filed on 15.11.1994, the intervening period being of less than 12 years, it cannot be said by any stretch of imagination that the plaintiff had perfected title to the suit land by adverse possession. 21. There is variance between the pleadings set up by the defendant and the evidence led by him to prove the same. In written statement, it was pleaded that his possession over the suit land dates back more than 12 years from filing of the written statement on 12.3.1996, that is, somewhere prior to March, 1984. However, while appearing as DW-1 on 6.4.1999, he has stated that the disputed land is situate alongside Indira Bhawan. It is coming in his possession as owner from the time of his ancestors. The adjoining Khasra Nos. 519 and 520 are also owned by him. The land of Khasra Nos. 519 and 520 alongwith the suit land has been inherited by him from his ancestors. It is further stated by him that his father had extracted stones from the suit land and the adjoining land comprised in Khasra Nos. 519 and 520 about 40-45 years ago 11 which period relates back to 1954-1959. None including the plaintiff or his predecessors had raised any objection at that time. According to the defendant, he had planted plum trees in the suit land about 30 years back when also none had raised any objection. Even this part of the testimony of the defendant is believed, the natural corollary would be that he had planted plum trees in the suit land somewhere in the year 1969 which is in stark contradiction to the pleadings set up by him in the written statement, wherein his case was that he is in possession of the suit land for the last more than 12 years corresponding to somewhere prior to March, 1984. 22. Vide order dated 6.4.2011 passed by this Court in this appeal in CMP No. 871 of 2010, the plaintiff was permitted to adduce additional evidence to which no evidence in rebuttal has been led on behalf of the defendant. The case of the plaintiff, as already noticed, is that he being owner in possession of the adjoining land bearing Khasra Nos. 519 and 520 is also in possession of the suit land in assertion of his right as owner and has perfected title to the same by adverse possession. However, a bare perusal of sale deed dated 19.12.1990, Ext. X-1 and the consequent mutation dated 14.2.1991, Ext. X-4 would go to show that the plaintiff had already sold the land of Khasra Nos. 519 and 520 to one Shri Nand Lal Parihar way back in the year 1990, that is, much before he was making statement in the learned trial Court as DW-1 on 6.4.1999. This aspect of the matter is also in derogation to the claim of the defendant that either he is in possession of the suit land and the adjoining land bearing Khasra Nos. 519 and 520 in assertion of his right to the same as owner and alternatively he has perfected title to the suit land by adverse possession. 12 23. All the substantial questions of law are answered accordingly. 24. The above discussion brings me to hold that in view of the settled legal position emerging out of the case law referred to hereinabove in this judgment, the defendant has miserably failed to plead and prove that he is in possession of the suit land adversely to the plaintiff and has perfected title to the same by adverse possession. It being so, the impugned judgment decreeing the suit of the plaintiff for the relief of possession cannot be faulted. The appeal is accordingly dismissed. (V.K. Sharma) Judge. September 26, 2011. (cr)