IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 295 of 2001 Judgment reserved on : 03.05.2011 Date of decision: 24.05.2011 State of Himachal Pradesh …Appellant. Versus Smt. Bhago Devi ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. For the respondent : Mr. Varun Chandel, Advocate vice Mr. Rajiv Jiwan, Advocate Kuldip Singh , Judge The reversal of judgment, decree dated 1.7.1992 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 57-1 of 1990/89 by the learned District Judge, Bilaspur on 22.6.1999 in Civil Appeal No. 75 of 1992 has been assailed by the defendant in the second appeal. 2. The facts, in brief, are that Nainu Ram predecessor-in- interest of the respondent had filed suit for declaration that he was owner in possession of land comprised in Khasra Nos. 212, 226 min, 253 min, Kita 3, measuring 6.10 bighas Village Pakher, Pargana Baseh, Tehsil Ghumarwin, District Bilaspur by way of adverse possession since 11.3.1957. The appellant had no right, title and interest over the suit 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 land. The appellant through Patwari Halqua threatened to dispossess the predecessor-in-interest of the respondent forcibly and to change the entry recorded in possession of Nainu Ram over the suit land. The notice under Section 80 CPC was given to appellant and thereafter the suit was filed in which consequential relief of permanent prohibitory injunction was also prayed. In alternative, suit for possession. 3. The suit was contested by appellant by filing written statement in which preliminary objections of maintainability, jurisdiction, valuation, cause of action were taken. On merits, it was pleaded that appellant was the owner and Nainu Ram had acquired no title over the suit land by way of adverse possession. The suit land was Kharetar and possession if any of the plaintiff was permissive. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the plaintiff is entitled to a decree for permanent injunction? OPP 3. Whether the suit is not maintainable? OPD 4. Whether this court has no jurisdiction to try and decide the suit? OPD 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief. 3 The issues No.1 to 5 were answered in negative and issue No.6 in affirmative. The suit was dismissed on 1.7.1992. In appeal, the learned District Judge on 22.6.1999 reversed the judgment, decree dated 1.7.1992 and decreed the suit. It was declared that Nainu Ram had become owner of the land measuring 6-10 bighas comprised in Khasra Nos. 212 and 226 Village Pakher, Tehsil Ghumarwin by way of adverse possession. The appellant was restrained from causing interference in the possession of Nainu Ram over the suit land, hence second appeal. 5. The second appeal has been admitted on the following substantial question of law:- “Whether the respondent-plaintiff could be held to be in adverse possession of the suit land merely on the basis of long, open and peaceful possession without proof that such possession was hostile?” 6. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the learned District Judge has erred in reversing the well reasoned judgment of the trial court. The adverse possession alleged by predecessor-in-interest of the respondent over the suit land has been mis-construed and mis-interpreted keeping in view legal requirement of pleadings and proof of adverse possession. 7. The learned counsel for the respondent has supported the impugned judgment, decree. He has submitted that the learned District Judge after due appreciation of material on record has recorded a finding of adverse possession in favour of Nainu Ram predecessor-in-interest of the respondent. The finding recorded by the learned District Judge on the 4 point of adverse possession requires no interference. No substantial question of law is involved in the appeal. 8. The suit has been filed regarding the land measuring 6-10 bighas comprised in Khasra Nos. 212, 226 min, 253 min, Khewat No. 47 min, Khatauni No. 48. The description of the suit land has been given in Misal Haquiat for the year 1987-88 Ex.P-2. The new khasra Nos. 212, 226 min, 253 min are equivalent to old Khasra Nos. 213, 220/2 min, 292/267/250 min respectively. Ex.P-5 is the first jamabandi 1956-57 on record showing Khasra Nos. 213, 220/2 min, 262/250 min in unauthorized possession of Nainu Ram owned by the appellant. The same entry has been repeated in jamabandi 1960-61 Ex.P-6, jamabandi 1964-65 Ex.P-7, jamabandi 1969-70 Ex.P-8, jamabandi 1974-75 Ex.P-9, jamabandi 1979- 80 Ex.P-10 and jamabandi 1984-85 Ex.P-3. 9. The statement of PW-1 Nainu Ram was recorded on 19.3.1992. He stated that there were five fields measuring 2 bighas in the suit land. He had continuous, open and peaceful possession. He had constructed a house on the suit land on which roof was laid by Chet Ram. He had been owner in possession for the last 13 years. In the beginning of the examination-in-chief, he stated that he came in possession of the suit land 42 years ago. In cross-examination, he stated that for the last about 5-7 years girdwari of the suit land had been recorded in his name. He came to know that the land was owned by Government only when Patwari started troubling him and threatened to evict him about 3-4 years ago. PW-2 Chet Ram has stated that Nainu Ram had been owner of the suit land for the last about 12 years. He had worked on the house of Nainu Ram 42 years ago. 5 10. The predecessor-in-interest of the respondent had claimed possession of the suit land since 11.3.1957. Nainu Ram had given contradictory statements regarding his possession over the suit land. He had stated that he came in possession of the suit land 42 years ago. The statement of Nainu Ram was recorded on 19.3.1992, therefore, possession of Nainu Ram as per his statement on the suit land was from the year 1950. The pleaded case of Nainu Ram was that he came in possession of the suit land on 11.3.1957. He also stated that he became owner in possession of the suit land for the last 13 years which comes to the year 1979 keeping in view the date on which his statement was recorded. The year 1979 in any way does not fit to be the year on which alleged possession of Nainu Ram matured into full ownership inasmuch as according to Nainu Ram, his adverse possession started on 11.3.1957 and, therefore, it cannot be adverse against the State before 30 years. Thus seen from any angle, the claim of adverse possession of Nainu Ram was shaky. 11. The predecessor-in-interest of respondent had placed nothing on record how his possession on the suit land was recorded for the first time. There is no order of the competent authority on record to show that name of Nainu Ram was ordered to be recorded in the revenue record showing his possession on the suit land. Once the first entry of Nainu Ram over the suit land has not been explained, then no presumption of truth is attached to the jamabandi 1956-57 Ex.P-5 wherein first time the name of Nainu Ram was entered. The subsequent jamabandis are based upon the entries recorded in Ex.P-5. Therefore, presumption of truth is not attached to subsequent jamabandis. 6 12. The entries in jamabandis 1956-57 onwards are not correct inasmuch as Nainu Ram had taken the stand that two bighas of land was under cultivation having five fields and he also constructed a house on the suit land. The jamabandis right from 1956-57 onwards show that the suit land is Kharetar, meaning thereby no part of the suit land was under cultivation. No house is shown on any part of the suit land in the jamabandis. Thus, the jamabandis are not showing the correct position on the spot. 13. PW-1 Nainu Ram in his statement had stated that he came to know only in the year 1988-89 that the suit land was Government land when Patwari threatened him to dispossess from the suit land. In other words, Nainu Ram before 1988-89 was not even aware that the suit land was owned by the appellant. Therefore, there is no question of hostile possession of Nainu Ram on the suit land against the appellant. 14. In State of Rajasthan vs. Harphool Singh (2000) 5 SCC 652, it has been held that question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. 15. In Deva Vs. Sajjan Kumar AIR 2003 SC 3907, it has been held that the animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment on plaintiff’s survey number. Mere long 7 possession of defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to latter’s knowledge cannot result in acquisition of title by the defendant to the encroached suit land 16. In R. Hanumaiah vs. Secretary to Government of Karnataka (2010) 5 SCC 203, it has been held that suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals, differ significantly to some aspects. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. The Courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner and, therefore, necessarily with the knowledge of the owner and continued during the entire period necessary to create a bar under the law of limitation. 8 17. In the present case, at the most, Nainu Ram has stated that he came in possession of the suit land. There was no hostile animus when he has stated that he was not aware that the land in question belongs to Government and he came to know about this fact only in the year 1988-89. The learned District Judge has totally mis-construed and mis-interpreted the pleadings and the evidence in reversing the well reasoned judgment, decree of the trial court. The learned District Judge has given the declaration of adverse possession of land measuring 6-10 bighas comprised in Khasra No. 212 and 226. In fact the suit land is comprised in Khasra Nos. 212, 226 min, 253 min, Kitas 3 measuring 6-10 bighas. This indicates that the learned District Judge has not properly considered the evidence with respect to suit land. The impugned judgment, decree are not sustainable. The substantial question of law referred to above, is decided in favour of the appellant and against the respondent. 18. The result of the above discussion, the appeal is allowed. The judgment, decree dated 22.6.1999 passed by the learned District Judge, Bilaspur in Civil Appeal No. 75 of 1992 are set-aside and judgment, decree dated 1.7.1992 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 57-1 of 1990/89 are restored. No costs. ( Kuldip Singh ), Judge. May 24, 2011 (GR)