IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 195 of 2001 Judgment Reserved on 26.5.2011 Date of Decision 13thJune ,2011 ________________________________________________________ Shukar Deen and another ….Appellants Versus Umar Deen ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Appellants: Mr. K.S. Kanwar, Advocate. For the Respondent: Mr. Sanjeev Kuthiala, Advocate. _____________________________________________________________ Dev Darshan Sud, J This is the defendants’ appeal against the judgment and decree of the two Courts below, granting decree to the respondent/plaintiff for possession of land comprised in Khasra No. 97/1, 100/1 and 100/2 measuring 0-1, 0-4, 0-1 biswas total 6 biswas in all and a decree for permanent prohibitory injunction restraining the appellants-defendants from causing any interference in the suit land comprised in Khasra No. 97/2, 99 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 and 100/3 measuring 12-11 bighas situated in Bhero, Tehsil Nahan, District Sirmaur. 2. The plaintiff-respondent instituted the suit out of which this appeal arises praying for decree for declaration, possession and relief of permanent prohibitory injunction against the defendants, on the basis of ownership. The defendnats resisted the suit on the ground that they are in possession of the suit land for the last more than 12 years continuously, openly and adversely since 26.1.1970. It was pleaded that this land is in their Abadi since 1970. The plaintiff has allowed these defendants to construct on the suit land and in these circumstances, they cannot turn around and claim possession for complaining against acts which they condoned. 3. On the settled issues, more especially, issue No. 3 dealing with adverse possession, tried together with two other issues relating to declaration and injunction claimed by the plaintiff, the learned trial Court, on the evidence on record, holds that the defendants have been unable to establish their hostile/adverse possession on the suit land. The statement of DW1 Shukar Deen (the appellant herein) was rejected, as being against the factual context. 4. The defendants appealed. The learned Appellate Court re-appreciated the evidence and holds that though the defendants are recorded in possession of land comprised Khasra No. 97/1 (1 biswas), 100/1 (4 biswas) and 100/2 (1 Biswa) totalling 6 biswas in all, but adverse possession has not been established by them and the appeal was dismissed. 3 5. The defendant is now in the second appeal before this Court. This appeal was admitted by this Court on substantial question of law No.1, which reads: 1. Whether the learned District Judge in the facts and circumstances of the case has erred in law in not drawing adverse inference against the plaintiff for not appearing in the witness box to rebut the case of the defendants of the adverse possession of six biswas of land w.e.f. 26.1.1970? 6. Before adverting to this question, on the same date in CMP No. 293 of 2011 this Court had passed an injunction order staying the dispossession of the appellants herein on their furnishing security for a sum of ` 25,000/- and to be bound by the ultimate decree to be passed by this Court. Since this condition was not complied with, CMP No. 197 of 2002 was filed by the respondent herein seeking modification of this order dated 25.6.2001. By its order dated 10.4.2002, this Court directed: “10.4.2002 ……….CMP No. 197 of 2002 Reply not filed, despite opportunity. Heard. In view of the admitted position that the requisite security required to be furnished as a condition for the stay of te execution, has not been furnished within the stipulated period or even thereafter, therefore, because of the lapse, the stay order as granted vide order dated 25.6.2001, stands automatically vacated. Mere pendency of this appeal, therefore, shall not be treated as stay of the execution proceedings.The application is disposed of accordingly……..” 7. Adverting to the substantial question of law, what I find from the record is that even assuming and accepting that 4 the plaintiff has not been appeared as a witness, the case of the defendant is not established at all as his own witness DW2 Kaka Ram had demolished the entire case. His statement, if read in its entirety, can in no circumstances be held to establish adverse possession. The principles/law of adverse possession is now well crystalised. The essential ingredients of adverse possession are nec vi nec clam and nec precairo. This has to be established not only by specific pleadings but also by evidence. There is no pleading(s) in consonance with the letter and spirit of law to show as to how and when the defendants came in possession of this land. Only pleading on record is of continuous and hostile possession over the suit land of the defendants. This is not sufficient in law to establish adverse possession. 8. At this juncture, the evidence of DW2 Kaka Ram may be considered. He says that he knows both the plaintiff and the defendants. He says that he does not know the khasra numbers of land, but Umardeen (plaintiff) had constructed some “Chhapad” (hut) on this land in which he is staying even today. He says that Shukar Deen has also constructed three huts there, but he does not know who is in possession. He does not know who has built and most importantly, he says that in these huts also, Umardeen is residing. The law on the adverse possession has been considered in detail by the Supreme Court in Karnataka Board of Wakf vs.Government of India and others (2004)10 SCC 779 whereby it has been held: “11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when 5 another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). 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 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 favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128). 12. A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." 6 The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." 9. This principle was reiterated in T. Anjanappa and others vs. Somalingappa and another, (2006) 7 SCC 570 holding: “12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 7 13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. “24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors. (1995 (4) SCC 496).” So far as the question of adverse inference is concerned, I find from the evidence that son of the plaintiff Shri Aslam has appeared, as attorney of his father, as PW3 as the father was unable to attend Court because of advanced age. But this question cannot be considered in vaccuo, more especially when the defendants fail to establish their case both on pleadings and facts. The question is, therefore, answered against the appellants. Appeal stands dismissed. No order as to costs. June 13th, 2011 (Dev Darshan Sud), ms Judge 8