IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.89/1997 Reserved on.7.12.2007 Decided on: 11.1.2008 Rattani. …Appellant. Versus Pohlo and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the appellants : Mr. Rakesh jaswal, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate. Rajiv Sharma, J. A challenge has been laid by way of this second appeal to the judgment and decree passed by the learned District Judge, Bilaspur dated 26.9.1996 rendered in appeal No. 280 of 1986. The brief facts necessary for the adjudication of this second appeal as gathered from the judgments of the trial court and appellate court are that the appellant (hereinafter referred to as the plaintiff for convenience sake) filed a suit alleging that she was in adverse possession of the suit land along with proforma defendants No. 6 and 7. According to her Smt. Jiwni had gifted away land measuring 21.12 bighas to her father by a registered gift deed dated 25.2.1958 and since then her father is said to be in occupation of the suit land along with the land gifted to him. The suit was resisted by the contesting defendants. The trial court framed the following issues: 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 1. Whether the plaintiff and proforma defendants are owners of the suit land by virtue of adverse possession? OPP 2. Whether the plaintiff and proforma defendants are in possession of the land of Jiwni, as alleged? OPP 3. Whether the suit is barred by res judicata? OPD 4. Whether the suit not maintainable in the present form? OPD 5. Whether the suit is time barred? OPD 6. Whether the suit is collusive? OPD 7. Whether the suit is nor properly valued for the purpose of Court fee and jurisdiction? OPD 8. Relief. The findings recorded by the learned trail court on the aforesaid issues are as under: Issue No.1. No. Issue No.2 No. Issue No.3 Yes. Issue No.4. Yes. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.7 The suit is dismissed as per operative portion of the judgment. The learned Sub Judge vide judgment dated 31.3.1986 dismissed the suit. The plaintiffs filed an appeal in the court of learned District Judge, Bilaspur. The learned District Judge, Bilaspur framed the following points for determination: 1 Whether the findings of the learned trial court are sustainable in the eye of law? 2 Final order. The learned District Judge, Bilaspur had recorded the following finings on the aforesaid points: 3 1 Yes. 2 Appeal is dismissed as per the operative part of the judgment. The learned District Judge dismissed the appeal filed by the appellant on 26.9.1996. This second appeal has been preferred against the judgment and decree dated 26.9.1996 passed by the learned District Judge, Bilaspur. The second appeal was admitted on the following substantial questions of law: 1. What in the facts and circumstances of the case the findings arrived at vide impugned judgment and decree are based on surmises, misreading the evidence and relying the evidence inadmissible in law? Mr. Rakesh Jaswal, Advocate appearing on behalf of appellant had strenuously argued that the judgments passed by both the courts below are not sustainable. Mr. Shrawan Dogra, Advocate appearing on behalf of the respondents had supported the judgments passed by the learned trial as well as appellate courts. I have heard the learned counsel for the parties and have perused the record. The names of respondents No.5 to 14 were deleted vide order dated 17.11.2000. Before the oral evidence is taken into consideration, it will be appropriate to consider the documentary evidence placed on record by way of revenue entries. Ex.P-A is the copy of Misal Haquiat pertaining to the year 1966-67. As per Ex.P-A, Jiwani is recorded in possession as non-occupancy tenant under Diwana, Banshi and Dhanu, defendants on the suit land. In Ex.P-B, Jamabandi for the years 1977-78 Pohlo and Diwana are entered as owners in cultivating possession. EX.P-C is the copy of Misal Haquiat and Ex.P-D is the copy of the jamabandi. These 4 two documents are not relevant since they pertain to some other suit land. In her cross-examination, the plaintiff her-self has stated that the land in question was gifted to her father by Jiwani 30 years back. The gift deed was not proved. The plaintiff has appeared as PW-1 and has admitted in her cross- examination that she was married in village Tihri which is in District Hamirpur 18 years back. PW-2 has admitted in his cross-examination that he was serving in the Army for the last 21 years and his version cannot be believed that he has seen the plaintiff cultivating the suit land. PW-3 is closely related to PW-2. He does not know who are the owners of the adjoining land to the suit land. They have not stated that the plaintiff was getting the land cultivated after the death of the father through her father- in-law. There was a prolong litigation between the contesting defendants and proforma defendants. The plaintiff has failed to prove her possession over the suit land. So the question of adverse possession does not arise. The plaintiff has failed to prove the basic ingredients of the adverse possession, namely, (a) on what date she came into possession, (b) what was the nature of her possession, (c) whether the factum of possession was known to the other party, (d) how long her possession has continued, (e) her possession was open and undisturbed, (f) animus possidendi at the commencement of the possession, and (g) the open-ness and adverse nature of possession. A person pleading adverse possession has no equities in his/her favour. The Hon’ble Supreme Court in P.T. Munichikkanna Reddy and others versus Revamma and others, 2007 (6) Scale 95 has considered the entire case law on the point of adverse possession. Their Lordships have held as under: “CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to 5 the adverse possessor or 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).] 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 can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. To understand the true nature of adverse possession, Fairweather v St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: 6 "In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple. If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's' term or his rights against or has obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less 7 enforceable against him in respect of the land than they would have been against the owners he has dispossessed." Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard. Therefore, 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 established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, 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. It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard. . NEW CONSIDERATION IN ADVERSE POSSESSION LAW In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a 8 person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol." This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. 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 limitation act and it also assists the court to unearth as the intention to dispossess. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`-vis intention to possess. This distinction can be marked very distinctively in the present circumstances. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and 9 degree which is required for adverse possession to materialize. The High Court observed: "It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession." In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse." The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for 10 landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention." On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." 11 Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and 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 right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: "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 12 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/her favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession” It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. 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 paper owner. In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown 13 was the advertisement issued in 1989. The suit filed almost immediately thereafter." The test is, as has been held in the case of R. v. Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385; [1999] 3 WLR 160: Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it. . ." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence. The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including "… land …. on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years." It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed: "the words 'as of right' import the absence of any of the three characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements." Later in the case of