1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 33 of 2009 Date of Decision: 7th September, 2009 Sukhdev Singh Appellant Versus Sunder and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Rajiv Jiwan, Advocate. For respondent No.1: Mr. Neeraj Gupta, Advocate. For respondent No.3. Mr.Vivek Thakur, Addl. Advocate General. Sanjay Karol, J. (Oral) CMP (M) No.32 of 2009 For the reasons stated in the application, which is supported by an affidavit, the delay of 126 days in filing the appeal has been sufficiently explained and is accordingly condoned. RSA No.33 of 2009 Plaintiff’s Civil Suit No.2/1 of 2003, titled as Sukhdev Singh vs. Sunder and others, was dismissed by the Court of Civil Judge (Jr. Division), Bilaspur, District Bilaspur, in terms of judgment and decree dated 27.10.2006. The plaintiff’s Civil Appeal No.104 of 2006, titled as Sukhdev Singh vs. Sunder and others, arising out of the same also stands dismissed by the District Judge, Bilaspur (H.P), in terms of judgment and decree dated 31.5.2008. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Both the Courts below have concurrently held that the plaintiff failed to prove that he had become owner by way of adverse possession of the suit land. Consequently, plaintiff’s suit for declaration that he is owner in possession of the suit land comprised in Khasra No.260/211, measuring 6-16 Bighas, situate in Village Nehar, Pargana and Tehsil Sadar, District Bilaspur, H.P. (hereinafter referred to as the suit land) by way of adverse possession stands dismissed. The suit land admittedly stands allotted to private respondent No.1 Shri Sunder in terms of order dated 4.11.1974 by virtue of a grant made by Sub Divisional officer (Civil), Civil Division, Sadar, District Bilaspur, H.P. The plaintiff is claimed to have raised the house, kitchen and cow-shed over the suit land. Based on the revenue record as placed on record by the parties, the trial Court came to the conclusion that from the jamabandies and tatimas (revenue record) (Ext.DA to Ext.DL), it could not be disputed that the suit land stands recorded to be in the ownership and possession of the private respondent at least from the year 1980 upto 2001. The testimony of plaintiff’s witnesses was disbelieved by the Courts below and in the teeth of unrebutted documentary evidence the defendant was held to be owner in possession of the suit land. The first Appellate Court has recorded the following finding of fact:- “I have given a very careful thought and consideration to the evidence oral as well as documentary with great circumspection and studied care. In seeking proof of the factum of the plaintiff having acquired by way of prescription, in as much as, his purported possession, of the suit land being with an hostile animus, for a statutory period of time having, as such ripened into absolute 3 ownership qua the suit land comprised in Khasra No.260/211 which came to be allotted to the defendants/respondents under Ext.DA, after report Ext.DC, having been obtained by the allotting authorities and in pursuance to which Ext.DD was prepared by the Revenue staff has depended upon the testimony of oral witnesses whose testimony has been scanned and perused by me. Their testimony is liable to be discarded, not, only being interested, but, also on the score that they being, not, apprised of the boundaries of Khasra No.260/211 and the boundary of Khasra No.274/261/1 which is the adjoining Khasra No., as, apparent from Ext.PW-1/A which is an application made by the plaintiff before the Land Acquisition Collector. The said witnesses being not equipped even with the revenue measurement devices nor the data with which they could carry out an accurate measurement of the adjoining Khasra numbers, hence, determine the boundaries of adjoining Khasra Nos., therefore, their testimony that the plaintiff/appellant has raised a cow-shed and house over Khasra No.260/211 and in that way had been in possession adversely to the right of defendant No.1/respondent No.1, who, had been allotted the suit land under Ext.DA in the year 1974 cannot be imputed any credence. As such, the learned trial Court did not err in not attributing any probative evidenciary value to the testimony of the oral witnesses and concomitantly in dis-believing them, while, non-suiting the plaintiff/appellant. I have scanned the documentary evidence on record. Ext. DA is the letter of allotment of the suit land to the defendant No.1/respondent No.1. Ext.DD, is, the Tatima reflecting the portion of specific Khasra No. bearing No.260/211, in, favour of the defendant No.1/respondent No.1, so also the Khasra Girdawaries Ext.D-2 and the Jamabandies Ext.D-1, Ext.DF, Ext.DG, all unanimously divulge not only the factum of the 4 defendant/respondent having been recorded as owner in possession of the suit land, but, they unequivocally record the fact of their being no entry recorded in the ‘Khana Kisam’ of the aforesaid Jamabandies or Khasra Girdawari marking the fact of any house or any cow-shed or any house as asserted by plaintiff/appellant to have been constructed on Khasra No.260/211. The said documentary piece of evidence enjoys a presumption of truth and when the presumption is sought to be dislodged by the plaintiff/appellant by the oral evidence as discussed herein above, which is weak for reasons hereinabove and is liable to be discarded, the presumption of truth in my view given by law, to, entries in revenue record where theirs having been remained unrebutted, has, acquired conclusive probative value.” It could not be shown as to how the same were either perverse, erroneous, illegal or not borne out from the record. The trial Court has also observed that the plaintiff has not been able to plead or establish his title by way of adverse possession. The Apex Court in P.T.Munichikkanna Reddy and others Vs. Revamma and others, (2007) 6 SCC 59, has held as under:- “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………” “…..Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. Adverse possession has been termed as a 5 negative and consequential right effected only because somebody else’s positive right to access the court is barred by operation of law. As against rights of the owner of the property on paper, 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. “…once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession…” “…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 is established. Successful application in this regard distances the title of the land from the owner of the property on paper. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the owner of the property on paper, 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….” “….Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the 6 owner of the property on paper. This test forms the basis of decision in the instant case…” “…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 the Limitation Act and it also assists the court to unearth the intention to dispossess. …” “The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the 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 the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper….” “….Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession….” 7 Importantly in the present case none of the essential ingredients as are required to be pleaded or established have been pleaded or proved. For the foregoing reasons, I find no merit in the appeal. No question of law much less any substantial question of law arise for consideration in the appeal and the same is accordingly dismissed. CMP No.62 of 2008 In view of the dismissal of the appeal, the present application is also dismissed. 7th September, 2009 (Sanjay Karol), (C) Judge.