IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 82 of 1998. Date of decision December 16, 2008. Shri Jai Pal @ Dumnu and others ….Appellants. Versus Shri Sant Ram & others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Ashwani Sharma, Advocate. For the respondents Mr. Virender Singh, Advocate. Dev Darshan Sud, J. (Oral). This is the plaintiffs ‘ second appeal against the judgment and decree of the learned Additional District Judge, Mandi reversing the judgment and decree of the learned trial Court granting the plaintiff-s /appellants herein a decree of declaration that they are owners in possession of the suit land and consequential relief of permanent prohibitory injunction. The case pleaded by the plaintiffs was that they are in exclusive possession of the suit land for the last 30/40 years and have become owners by way of adverse possession. It is undisputed that the respondents herein are the co owners but the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - plaintiffs appellants pleaded that they have perfected their title by efflux of time on the basis of exclusive possession. The learned trial Court on the two important issues, namely as to whether the appellants had become owners by way of adverse possession and as a consequence the defendants – respondents who were admittedly co-owners had lost their ownership rights in the land, held in favour of the plaintiffs. The learned District Judge has reversed these findings and dismissed the suit. This appeal was admitted on 17.12.1998, but no question of law was indicated on which the appeal was admitted. At the time of hearing of the appeal, the counsel for the parties were not at variance that only questions 1 and 2 could be considered by this Court, which are: 1. What are the ingredients to prove the ouster of a co-sharer from the land in order to establish the adverse possession by other co-sharer…? 2. What is the effect of the testimony of defendants’ witnesses stating the ouster of defendants from the suit land and more so, when the ouster of the defendants was established and proved on record by the oral as well as the documentary evidence of the plaintiffs in this case…? Taking up both these questions together, I was not inclined to hear the appeal on - 3 - these questions as they are clearly questions of fact which have been determined by the Courts below, however, since the appeal has been admitted on 17.12.1998, instead of dismissing the appeal I considered it in the interest of justice to determine these questions. Having gone through the evidence and the record, I do not find that the ingredients of adverse possession have been proved. The pleadings of the plaintiffs in para 2 of the plaint is: “2. That the plaintiffs are in continuous, peaceful and adverse possession of the suit land as described in para No. 1 above of the plaint and therefore even if it is found that the defendants might have got any alleged rights of ownership the same has been extinguished by virtue of adverse possession and therefore, the plaintiffs are exclusive owners in possession of the suit land.” To say the least, these do not constitute particulars as to how adverse possession is established. It is by now well settled that adverse possession requires animus possidendi and evidence to establish as to whether the animus is based on real, false or pretended title. Possession, no matter how long, cannot mature into adverse possession. The learned District Judge for arriving at the conclusion that the ingredients of adverse possession, namely nec vi nec clam nec precario had not been established on - 4 - the record, considered the oral evidence of the plaintiffs and found it to be insufficient to hold that there was any ouster of possession of the defendants- respondents with the sole animus of possessing the land to the exclusion of the defendants openly and in clear denial of their title. He considered the revenue record and the fact that proprietary rights had been conferred on the respondent-defendants under law for which purpose Mark ‘X’ being a notice from the Land Reforms Officer issued to the respondents calling upon them to file their objections etc. was taken into account. The law on the point of adverse possession is well settled. In S.M.Karim v. Bibi Sakina, AIR 1964 SC 1254, the principles governing adverse possession were laid down as: “(5)…..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.” The learned District Judge rightly relied upon the decision of the Supreme Court in Karbalai Begum v. Mohammad Sayeed, AIR 1981 SC 77 to hold that mere non participation in the rents and profits does not constitute adverse possession against other co owner(s). The law is also equally well settled by now - 5 - that proving ouster of a co owner requires a very high degree of proof as the possession of one co sharer is considered to be that of all. The evidence on record, oral or documentary, does not establish these facts. These questions are answered accordingly against the appellants. This appeal is dismissed. There shall be no order as to costs. Pending application(s) shall stand dismissed and interim order(s) vacated. December 16, 2008 (PC). (Dev Darshan Sud), J.