IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 279 of 1999 Date of Decision: 05.11.2009. Sh.Ram Singh (dead) through LRs Bhartri Chand Sharma and another ..Appellants. Versus. Smt.Shiv Dei and others ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Romesh Verma, Advocate. For the Respondent(s): Mr.V.D. Khidtta, Advocate. Deepak Gupta, J This regular second appeal is directed against the judgment of the learned District Judge, Shimla passed in Civil Appeal No.10-S/13 of 1998 decided on 1.6.1999 whereby he allowed the appeal filed by the respondent and set-aside the judgment and decree of the learned Sub Judge Ist Class, Rohru in Civil Suit No.26/1 of 1995 decided on 1.1.1998 decreeing the suit of the plaintiff. Briefly stated the facts of the case are that Ram Singh, predecessor in interest of the present appellant filed a suit against the respondents. It was alleged that the plaintiff is the owner of land measuring 0-10-24 - 2 - hectares bearing khasra No.1236 (old khasra No.797) situate in village Todsa, Tehsil Chirgaon, District Shimla. According to the plaintiff he jointly owned land with his brother Dharam Singh who is proforma defendant No.3. Thereafter the land was partitioned between the brothers and the suit land fell to the share of the plaintiff. The plaintiff further alleged that in June, 1984 when settlement operations were in progress in the area, defendants 1&2, namely, Shiv Dei and Promila Devi tresspassed onto the suit land and forcibly took possession of the same. They also planted some apple plants on the suit land without the consent of the plaintiff. Plaintiff objected to the same and requested the defendants 1&2 to return the land to him but in vain. Finally he filed the suit for possession of the suit land on 21.2.1995. He also claimed compensation of Rs.30,000/- for the value of the deodar trees allegedly felled by defendants 1&2. Defendants 1&2 in their written statement mainly raised the plea of adverse possession claiming their possession over the suit land since the time of their fore fathers. According to them, they have been in possession of land for more than 40 years and that Shiv Dei had planted an orchard on the land about 25 years earlier. - 3 - The learned trial Court decreed the suit and rejected the plea of adverse possession. An appeal was filed by the defendant Shiv Dei. The same was allowed and the learned District Judge held that the plea of adverse possession stood proved. Aggrieved by the said judgment and decree the present appeal has been filed. This appeal was admitted on the following substantial question of law: “Whether mere long possession of defendants on record over the suit land is sufficient to grant relief that the defendant-respondent has become owner by way of adverse possession without pleadings and proving on record as to at what point of time possession of the respondent became hostile and whether such hostile possession was open, continuous, peaceful and for a statutory period of 12 years.” I am of the considered opinion that in fact the question as to whether the defendant had acquired ownership by way of adverse possession is a question of fact and not a question of law. However, I have with the assistance of the parties gone through the entire evidence. The plaintiff did not appear in the witness box. His son appeared as attorney of the plaintiff. According to the son he was in service and was not personally present - 4 - in the year 1984 when the alleged possession was taken by the defendants. He however stated that the defendants forcibly occupied the suit land some time in June, 1984. He also admitted that there was an apple orchard on the land in question. According to him the age of the plants is not 25 years. PW-2 Dharam Singh is the real brother of the plaintiff. According to him, the defendants forcibly occupied the land in the year 1984. However, in cross examination he feigned ignorance about the age of the apple trees. A specific suggestion was put to him that the trees were 25 years old. He did not admit or deny the suggestion but gave an evasive answer that the person who had planted the trees could give the age. He further stated that the plants had been raised by his brother Ram Singh that is the plaintiff. This is totally contrary to the case of the plaintiff himself who has never stated that the apple orchard was planted by him. Even otherwise not much reliance can be placed on the statement of PW-2 since he is the real brother of the plaintiff. PW-3 is one Dila Ram who is Uncle of defendant Shiv Dei. According to him Shiv Dei took possession of the land only about 11 ½ years back. No reliance can be placed - 5 - on the testimony of this witness because in cross examination he has admitted that the relations between him and Shiv Dei are totally strained and their relations are so bad that they have no dealings with each other so much so that they do not eat anything touched by each other nor do thy participate in any function of happiness or sorrow in each others family. The testimony of PW-4 Jogi Ram is not very relevant. According to him a tree was felled about 10-12 years back and then the Forest Guard came to get the land demarcated and the said tree was found to have been felled from the land belonging to Ram Singh. The best evidence would have been the record of the Forest officials which has not been produced. No record of the alleged demarcation has been produced. In all probability his deposition did not relate to the land in question. On the other hand defendant Shiv Dei clearly stated that the land had been in possession of her family for the last more than 40 years. According to her, her grand parents were in possession of the suit land. Thereafter, her parents inherited it and she inherited the land from her father who died more than 30 years back. She further - 6 - made a clear-cut statement that she had planted an apple orchard on the suit land about 25 to 30 years back. No suggestion was put to her in cross examination that age of the apple plants was less than 25 years. DW-2 Sagar Dass and DW-3 Gauri Nand are two co- villagers and they both stated that they have always seen Shiv Dei and her family in possession of the suit land and that the apple orchard was planted about 20-22 years earlier. Both of them state that the plants were bearing fruits for 10-11 years. An apple plant bears fruits only after 7-8 years and therefore this corroborates the statement of the defendant that the apple orchard was more than 20 years old. Statements of these two witnesses inspires confidence. They are both co-villagers and have no enmity with the plaintiff. The law is well settled that mere long possession does not ripen into adverse possession unless it is shown that the person claiming adverse possession has done something which is adverse to the right of the true owner. The Apex Court while referring to the earlier judgments in M. Durai vs. Madhu and others, (2007) 3 SCC 114 held as follows: “9. This aspect of the matter has since been considered by this Court in Saroop Singh v. Banto(2005) 8 SCC 330 wherein it was held thus: (SCC pp. 339-40, paras 28- 30) - 7 - "28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 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 defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak(2004) 3 SCC 376.) 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. Mohammad AH v. Jagadish Kalita(2004)1 SCC 271, SCC para 21.)" 10. Yet again in T. Anjanappa v. Somalingappa(2006) 7 SCC 570 this Court opined as under: (SCC p. 575, para 14) "14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents." It was furthermore held as under: (SCC p. 577, para 20) "20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action." A similar view was taken by the Apex Court in Des Raj and others vs. Bhagat Ram (Dead) by LRs. & others (2007)9 SCC 641 and Annakili vs. A. Vedanayagam & others (2007) 14 SCC 308. - 8 - Reliance placed by Sh.Romesh Verma on the judgment of the Apex court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & others, AIR 2009 SC 103, is totally misplaced. In that case neither any plea of adverse possession had been raised nor any issue in this regard has been framed. It was in these circumstances that the Apex court held that the appellant could not be permitted to take up the plea of adverse possession. In the present case, even if the earlier possession of Shiv Dei or her family when the land was lying barren may not be said to be adverse to the title of the plaintiff, once she planted an apple orchard she was asserting her right on the land and from that date onwards her possession over the land became adverse to that of the true owner. From the evidence on record it is proved that the apple orchard was planted at least 20 years prior to the filing of the suit. Therefore, this adverse possession had ripened into true ownership. Consequently, there is no merit in the appeal which is rejected. November 5, 2009 ( Deepak Gupta ), J. PV