RSA No.3704 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3704 of 2009(O&M) Date of Decision:25.08.2010 Babu Singh and others ......Appellants Versus State of Punjab and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.S.N.Chopra, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J. The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that initially Babu Singh son of Mohinder Singh, Gursewak Singh, Darshan Singh sons of Karnail Singh-appellants, Gurjit Singh son of Karnail Singh and Gurnam Singh son of Mohinder Singh-proforma respondent Nos.3 and 4-plaintiffs(hereinafter to be referred as “the plaintiffs”) filed the suit for a decree for permanent injunction restraining the State of Punjab and its concerned Collector-respondent Nos.1 and 2-defendants(for brevity “the defendants”) from interfering in their peaceful possession over the property in dispute. 2. Concisely, the case set up by the plaintiffs, in brief, insofar as relevant, was that they are in open and continuous possession of the disputed property to the knowledge of the defendants, without any kind of payment, for the last more than hundred years, from the time of their father and fore-fathers. The plaintiffs claimed that although they have become owner of the suit land owned by the State of Punjab, by way of adverse possession, still the defendants intend to oust them, without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree for permanent injunction against the RSA No.3704 of 2009 2 defendants, in the manner depicted here-in-above. 3. The defendants contested the suit and filed the written statement, inter alia, pleading certain preliminary objections of, maintainability of the suit, locus standi, cause of action of the plaintiffs, non-joinder and mis-joinder of the necessary parties. According to the defendants, the State Govt. is owner and in possession and the plaintiffs have got no right, title or interest in the suit land. Succinctly, the State of Punjab-defendant claimed its ownership over the suit land. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit with costs. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case. “1. Whether the plaintiffs are in possession of the property in dispute?OPP 2. Whether the plaintiffs are entitled to the injunction as prayed for?OPP 3. Whether the suit is bad for want of notice u/s 80 CPC?OPD 4. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD 5. Relief.” 5. The parties to the lis, in order to substantiate their respective pleaded stands, brought on record oral as well as the documentary evidence in this context. 6. Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial Court dismissed the suit of the plaintiffs with costs by virtue of impugned judgment and decree dated 01.04.2003. 7. Aggrieved by the impugned judgment and decree of the trial Court, the appellant-plaintiff Nos.1 to 3 filed the appeal, which was dismissed as well by the first appellate Court vide impugned judgment and decree dated 24.10.2008. 8. The appellant-plaintiff Nos.1 to 3 still did not feel satisfied with the RSA No.3704 of 2009 3 impugned judgments and decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter. 9. Having heard the learned counsel for the appellants at quite some length, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 10. Ex facie, the contention of the learned counsel that as the plaintiffs are in open and hostile possession of the suit land, since the time of their father and fore-fathers, therefore, they became its owner by way of adverse possession, is not only devoid of merit but misplaced as well. 11. As is evident from the record that the plaintiffs have filed a simple suit for a decree of permanent injunction and not for a decree of declaration to the effect that they became the owner of the property in dispute of the State of Punjab by way of adverse possession. They did not claim any specific issue in this regard. As per revenue record, their possession has been described as gair marusi. In the absence of crucial pleadings regarding adverse possession and evidence to prove that the plaintiffs have been in continuous and uninterrupted possession, it cannot possibly be saith that they have perfected their title by way of adverse possession. 12. Sequelly, the matter did not rest there. The law of adverse possession is well-settled. The parties claiming ownership by way of adverse possession, have to settle specifically in the pleadings and to prove by cogent evidence that their possession is validly adequate in continuity, in publicity and in extent to show their clear possession to the deep knowledge of the competitors. The plaintiffs cannot render their possession adverse to the other merely by any secret hostile animus on their own part in derogation of the title of the defendants. 13. An identical question arose before the Hon'ble Apex Court in case P.T.Munichikkanna Reddy and others Versus Revamma and others, (2007) 6 SCC 59. Having considered the legal aspect, it was ruled as under:- RSA No.3704 of 2009 4 “5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085: 303 S.W. 2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929)]. 6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess cannot be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim.” 14. Similarly, in case Annakili Versus A.Vedenayagam, 14(2007) 14 SCC 308, the Hon'ble Supreme Court has reiterated as here-in-after:- “24. 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 RSA No.3704 of 2009 5 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 the 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 does not ripen into a title.” 15. Likewise, an identical question recently arose before the Hon'ble Apex Court in case Mandal Revenue Officer Versus Goundla Venkaiah and another, (2010) 2 Supreme Court Cases 461. After considering the relevant provisions, it was held as under:- “47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.” 16. Meaning thereby, 'Animus possidendi' is one of the most significant ingredient of adverse possession. Unless and until, the person possessing the land has a requisite animus, the period for prescription does not commence and the encroacher, unauthorised occupants and the land grabbers cannot legally claim ownership on the basis of their mere possession by way of adverse possession. RSA No.3704 of 2009 6 Therefore, not only that, the plaintiffs were required, clearly to plead and prove by cogent and unequivocal evidence that their possession was hostile to the real owner and amounted to denial of their title to the property claimed, they were further specifically required to plead and prove the classical and essential ingredients of acquisition of title by adverse possession that their possession was open, peaceful, continuous, hostile and in denial of the true owner's title as well, which is deeply lacking in the instant case. The plaintiffs have miserably failed to specifically plead and prove that how, by whom, when, in what manner and capacity, they came into possession and became the owner of the disputed property by way of adverse possession. Otherwise, the mere possession for how so long and whatsoever period, will not entitle them to claim their ownership by way of adverse possession, in this relevant connection. 17. There is another aspect of the matter, which can be viewed from a angle. It is not a matter of dispute that neither there is any statutory provisions under the Transfer of Property Act, nor any other statute, or relevant positive legal provisions, conferring any proprietary rights or ownership of the property on any person by virtue of adverse possession as such. It pre-supposes and based on the speculative intent of a person on account of default of true owner being not in possession of the property. That means, the right of adverse possession is a piratical right, mainly, based on (i) speculative and negative theory of default, (ii) wishful presumption that the owner has abandoned the property to the adverse possessor and (iii) that the true owner has not claimed the possession from the opposite side within a period of limitation, prescribed under Articles 64 and 65 of the Limitation Act, as the case may be and nothing else. It lacks any statutory recognition in this behalf. Considering the concept of adverse possession, the Hon'ble Apex Court in case Hemaji Waghaji Jat Versus Bhikhabhai Khengarbhai Harijan, 2008(4) RCR (Civil) 401, has observed that “the law of adverse possession which ousts an owner on the basis of inaction within limitation RSA No.3704 of 2009 7 is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner”. 18. Such, thus, being the legal position and in the absence of any statutory/recognition/provisions, authorising the plaintiffs to claim ownership by way of adverse possession, to me, the plea of adverse possession cannot possibly be used as a sword (weapon of attack) by the plaintiffs. It can only be pleaded as a shield of defence by the defendants to protect their possession. Meaning thereby, the plaintiffs cannot claim their ownership in the property in dispute by way of adverse possession, in the plaint, though the parties in possession, may plead it as a defence in the written statement only for a limited purpose to protect their possession after expiry of the statutory period of limitation in this relevant connection and not otherwise. Reliance in this regard can well be placed on a judgment of this Court in case titled as Bhim Singh and others Versus Zile Singh and others, 2006(3) RCR(Civil) 97. 19. Therefore, the contrary arguments of the learned counsel for the appellant-plaintiffs 'stricto sensu' liable to be and are hereby repelled under the present set of circumstances, as the law laid down in the aforesaid judgments is “mutatis mutandis” applicable to the factual matrix and evidence on record in the present case and is the complete answer to the problem in hand. In this manner, to me, the Courts below have rightly negatived the claim of adverse possession of the plaintiffs in this relevant behalf. 20. No other meaningful arguments have been raised by the learned counsel for the appellant-plaintiffs, so as to assail the judgments and decrees of the RSA No.3704 of 2009 8 Courts below. All the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below, in this relevant direction. 21. Above all, the trial Court as well as the first appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below recorded the well-articulated and well-reasoned concurrent findings of fact that the plaintiffs have miserably failed to prove their adverse hostile and open possession to enable them to claim their title by way of adverse possession and the State of Punjab- defendant is still the owner of the disputed property. Such pure concurrent findings of facts based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this respect. 22. Neither any question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has been urged or pressed by the learned counsel for the appellants. Therefore, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case. 23. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed with costs. August 25, 2010 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No RSA No.3704 of 2009 9