IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No. 359 of 2000. RSA. No. 154 of 2000. Date of Decision: April 19, 2010. _________________________________________________________ Pyare Lal and others. …..Appellants. Versus Nargu Ram and others. …Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?No. For the appellant: Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For the respondent. Mr. Bhupinder Gupta, Sr. Advocate with Mr. Praneet Gupta, Advocate. __________________________________________ Dev Darshan Sud,J(Oral): Both these appeals are being disposed of as they relate to the same parcel of land and by an order dated 19.3.2008 both the appeals were consolidated for hearing. RSA NO. 359 of 2000 2. Plaintiff Nargu Ram instituted a suit for declaration to the effect that he has become owner by way of adverse possession of the suit land and that the defendants are intending Whether reporters of the Local papers are allowed to see the judgment? Yes.. 2 to interfere in the peaceful possession of the plaintiff, in these circumstances, a decree for permanent prohibitory injunction and declaration was prayed for to the effect that the plaintiff had become owners of the suit land by way of adverse possession. 3. On the settled issues and more especially issue Nos. 1 and 2 which dealt with the question of adverse possession and whether the defendants were interfering in the suit land, the trial Court held against the plaintiff. The Court holds that there was no evidence on record to show that the plaintiff had become owner by way of adverse possession as the necessary ingredients had not been proved. The allegation was that the apple plants at the age of 25 years and the ‘Chuli’ trees of 58 years of age were planted by him. Learned Court relying upon the decision of the Supreme Court in AIR 1997 S.C. 281 and AIR 1997 SC 2930 as also the demarcation report Ext. RA, tatima Ext. RB and Ext. PW6/A dismissed the suit of the plaintiff. The learned District Judge holds that the plaintiff has perfected his title by adverse possession in respect of the land measuring 0-01-40 hectares as per tatima Ext. PW-6/A. Both the plaintiff and the defendants are now in appeal. 4. A number of questions have been raised for determination of this Court. Before adverting to this question, in this appeal (RSA No 359 of 2000), five questions were admitted for consideration. I need not delve on all of them and only two 3 may be considered, namely, whether tatima Ext. PW6/A has been proved in accordance with law because the original was not produced and whether adverse possession has been proved on record. 5. Taking both these questions for consideration, I find that the learned District Judge was completely wrong in coming to the conclusion that adverse possession had been established by evidence. Without proving the ingredients of adverse possession, merely saying that some fruits trees had been planted on the piece of land, is not sufficient. The learned District Judge holds that the defendant has admitted in his pleadings with respect to the age of the fruit trees and, therefore, by implication adverse possession stands established. The essential ingredients of adverse possession is 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) inconsonance with the letter and spirit of law to show as to how and when the plaintiff came in possession of this land. Only pleading on record is of continuous and hostile possession over the suit land of the plaintiff. This is not sufficient in law to establish adverse possession. Moreover Ext.PW6/A has not been proved in accordance with law as the original has not been produced and a specific objection was taken that the original was not produced. Ext. RB does not advance the case of the plaintiff any further. In Karnataka Board of Wakf 4 Vs. Government of India and others (2004) 10 SCC 779, the Supreme Court succinctly summed up the law on adverse possession holding: “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 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 5 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." 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 6 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." 6. 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. 7 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. 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).” 7. In these circumstances, I hold that the plaintiff has not been able to establish his possession much less adverse possession on the land in dispute. The land has also not been identified as the tatima (Ext. PW6/A) have not been proved in accordance with law. Merely saying that the fruit trees have been 8 planted on a part of Khasra without identification is insufficient to sustain the plea of adverse possession. 8. In these circumstances, I hold that the learned appellate Court was in error in decreeing the suit of the plaintiff. This appeal is accordingly allowed. The suit of the plaintiff is dismissed. RSA. No. 154 of 2000 9. The facts in this appeal need not detain this court any further as it is for the same parcel of land. On the first issue framed in this suit as to whether the plaintiff Nargu Ram is the owner of the land, the trial Court holds in his favour. 10. Having held that the plaintiff is not the owner of the suit land which point has been determined by me in RSA No. 359 of 2000, this appeal is accordingly disposed of. The parties seem to be litigating with respect to the same portion of land over and above again multiplicity of proceedings cannot be permitted. The appeal is disposed of which shall be abide by the decision in RSA. No. 359 of 2000 titled Pyare Lal and others Vs. Nargu Ram. (Dev Darshan Sud), Judge. April 19, 2010(R) 9