1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 221 of 2000 Reserved on : 25th May, 2010 Date of Decision: 15th June, 2010 Baldev Singh and others Appellants Versus Sunka Ram and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr. Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the respondents: Mr.G.D.Verma, Senior Advocate, with Mr.B.C.Verma, Advocate. Sanjay Karol, J. (Oral) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 was admitted on the following substantial questions of law:- “1. Whether both the courts below have wrongly held the suit filed by the plaintiff-appellants to be barred by limitation, ignoring from consideration that the suit as filed by the plaintiff-appellants was based on title? Was not the suit covered by Article 65 of the Limitation Act? 2. When the defendant-respondents in the present suit as well as in the previously instituted suit asserted their Whether the reporters of Local Papers are allowed to see the Judgment? 2 possession over the suit property as non-occupany tenants, could both the courts below accept the alternative plea set up by the defendant-respondents to have acquired title to the suit property by adverse possession from the year 1962? Are not such findings based on improper pleadings, against the documentary and oral evidence?” 2. This case has got a chequered history of litigation since the year 1975. This is the second round of litigation between the parties. In this appeal, the plaintiffs have assailed the concurrent findings of fact recorded by the Courts below. Plaintiffs’ Civil Suit No.121 of 1981 for injunction and in the alternate for possession stands dismissed in terms of judgment and decree dated 27.2.1991 passed by Sub Judge, Ist Class, Hamirpur, District Hamirpur, H.P. The decree stands affirmed in Civil Appeal No. 35 of 1991 passed by the District Judge, Hamirpur, H.P. on 11.2.2000. 3. The appellants are the plaintiffs and the defendants are the respondents. The Courts below found the defendants to be in possession of the suit property since the year 1962 and as such, perfected their title by way of adverse possession. Consequently, plaintiffs’ suit for recovery of possession of the suit land stands dismissed. 4. Shri Julfi Ram, Shri Finjha Ram, Shri Sunka Ram and Smt. Durgi, (present defendants) filed a suit against Shri Bishesher Singh and Baldev Singh, (present plaintiffs) before the Sub Judge, Ist Class, Hamirpur, District Hamirpur, H.P. In the said suit, present defendants prayed for a relief of injunction (against the present plaintiffs) from interfering in any manner on the suit land. The suit was filed on the basis of defendants’ right as a non- occupany tenants over the suit land. This is evident from plaint Ext.DW-4/A. 3 This suit numbered as Case No.153 of 1975 was decreed in terms of judgment and decree dated 22.6.1991 (Ext.D-1). The operative portion of the judgment is reproduced as under:- “9. In the light of above discussion, it stands proved that the plaintiffs are not at all tenants over the land in suit although they are in possession thereof. It is, therefore held that the plaintiffs are in possession of the land in suit but not as tenants. This issue is accordingly decided partly in favour of the plaintiffs. 10. As has been held by me in Issue No.1 above, the plaintiffs were never inducted as tenants over the land in suit but have been found to be in possession of the land in suit without any title and therefore their status is nothing but that of tress-passers. Now question arise whether a tress-passer can be granted the discretionary relief of permanent injunction against the defendants who are the true owners of the land in suit. During the course of arguments, ld. Counsel for the plaintiffs cited AIR 1980 November Kerala P 224 and page 225 in 1980 December part ‘Karthiyaya Amma v. Gobindan’ in which the Hon’ble High Court has held that a person in possession of immovable property can sustain a suit for injunction against the rightful owner pregenting him from disturbing his possession and that a person in possession can be evicted only in due process of law and even the rightful owner cannot eject him with force. No contra authorities were cited by the Ld. Counsel for the defendants. Therefore, in the light of the said authority the suit of the plaintiffs for the grant of permanent prohibitory injunction against the defendants as prayed for in head note ‘A’ of the plaint is hereby decreed. In the peculiar circumstances of the case, I leave the parties to bear their own costs. A decree sheet be drawn up accordingly.” 4 5. Consequently on 1.8.1981 the present plaintiffs filed a suit for possession of the suit land. As per amended written statement filed by the present defendants, the suit was resisted on the grounds that (i) it is not correct that the parties to the suit are not related with each other as landlord and tenant, and the defendants have challenged the decision of the court to this effect/extent before the court of District Judge, (ii) the defendants have been possessing the suit land as tenants since their ancestors, (iii) the defendants have been giving crop share to the plaintiffs and now the defendants are owners/landlords of the suit land on the basis of H.P. Tenancy and Land Reforms Act and (iv) If this argument is not accepted that the defendants are not tenants on the suit land, then still the defendants are landlords/owners of the suit land by way of adverse possession as the defendants are in the possession of the said land since October, 1962. 6. On the pleadings of the parties, the following issues were struck:- 1. Whether the plaintiffs are entitled for the decree of permanent prohibitory injunction, as prayed for? OPP 2. Whether the suit is not within time? OPD. 3. Whether the suit is barred by the principles of res judicata? OPD. 4. Whether the suit in form ‘A’ is not maintainable? OPD. 5. Whether the plaintiffs are estopped from filing the suit by their own acts and conduct? OPD. 6. Whether no cause of action has arisen for plaintiffs to file the suit? OPD. 7. Whether the defendants are entitled for special costs, if so, tow hat extent? OPD 8. Whether the defendants have become owner of suit land by way of adverse possession? OPD. 5 7. Based on the evidence led by the parties, the trial Court held that Shri Bahadur predecessor-in-interest of the defendants was a tenant. This fact was evident from the revenue record Ext.P-9. After the death of Shri Bahadur, defendants continued to be in possession of the suit property since the year 1962, which fact was proved by Shri Mahant Ram (DW-2), Bhagat Ram (DW-3), Shri Longu Ram (DW-5) and Shri Ram Ditta (DW-6). Since the suit was filed beyond the period of limitation, i.e. 12 years, the suit was not within time. In any event the defendants had perfected their title by way of adverse possession. Hence plaintiffs’ suit was dismissed. These findings stand upheld by the lower appellate Court. 8. I have heard the Mr.Bhupender Gupta, learned Senior Counsel for the appellants and Mr. G.D.Verma, learned Senior Counsel for the respondents, and also perused the record. 9. It is a settled position of law that concurrent findings of fact can be interfered with if they are perverse and have led to travesty of justice. [Bondar Singh and others vs. Nihal Singh and others, (2003) 4 SCC 161]. The guiding principles for determining substantial questions of law have been laid down by the Apex court from time to time. The Apex Court in P.Chandrasekharan and others vs. S.Kanakarajan and others, (2007) 5 SCC 669, has held as under:- “The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence….” “Even in a case where evidence is misread, the High Court would have power to interfere….” 6 10. In Moses Wilson & ors. vs. Kastubra and others, AIR 2008 SC 379, the Court has held as under: “…It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 11. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & ors, (AIR 1999 SC 2213), the Court has held as under:- “In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence” 12. The material on record has to be considered keeping in view the aforesaid principles of law laid down by the Apex Court. 13. Now there is no dispute that as per the revenue record plaintiffs and their predecessor-in-interest were recorded owners of the suit land. There is also no dispute that Shri Bahadur continued to be reflected as a tenant in the revenue record till the time of his death in the year 1962. This is evident from revenue record Ext.D-4, Ext.D-5, Ext.D-6 and Ext.D-7. 7 14. Be that as it may be, admittedly the defendant is in possession of the suit land. Therefore, the question for consideration would be as to whether his possession is adverse and hostile to that of the plaintiff and as to whether the defendant has perfected his title on account of the same. 15. The law on adverse possession is well settled. 16. In P.T. Munichikkanna Reddy and others vs. Revamma and others, 2007(6) SCC 59, the Apex Court 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 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 8 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 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 9 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….” “16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: (SCC p. 594, para 5) "5.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 10 found it as a fact that the possession of the appellant was not adverse. (emphasis supplied)” “17. 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 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.” (emphasis supplied)” “18. 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 11 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." (emphasis supplied)” 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.)" “22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed 12 by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: (SCC p. 785, para 11) "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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession" (Emphasis supplied) 17. To the same effect are decisions rendered in Mohan Lal (deceased)through his LRs Kachru and others (supra) and Virendra Nath through P.A. holder R.R.Gupta (supra). 18. In Karnataka Board of Wakf (supra), it has been held as under:- “A plaintiff, filing a title suit, should be very clear about the origin of title over the property. He must specifically plead it. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” (Emphasis supplied) 13 19. In Vasantiben Prahladji Nayak and others (supra), it has been held as under:- “To establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendant’s possession became adverse.” (Emphasis supplied) 20. In Roop Singh (dead) through L.Rs. (supra), it has been held as under:- “6. …Mere possession for a long time does not result in converting permissive possession into adverse possession [Re: Thakur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 : 1994 AIR SCW 4082: AIR 1995 SC 73)]” “9. …It is also to be stated that plea of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as owner after getting in possession of the land. [Re: Mohan Lal v. Mriza Abdul Gaffar, (1996) 1 SCC 639 : (1996 AIR SCW 306 : AIR 1996 SC 910)]” 14 21. This Court in Rajinder Kumar and another vs. Bhag Singh, 1996 (1) S.L.J. 215, has held that the defendant’s entry in the settlement record in possession without any status will not carry any legal weight whatsoever, moreso, to prove the plea of adverse being more than 12 years. 22. In Tilak Raj vs. Bhagat Ram and another, 1997 (1) S.J.J. 84, this Court has also held that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. 23. Keeping in view the aforesaid principles of law laid down by the Apex Court, the evidence led by the parties needs to be appreciated in the facts and circumstances of the present case. 24. Now in the instant case, the defendants’ suit stood adjudicated on merits wherein it was specifically held that they were not tenants but trespassers over the suit land. These findings of fact attained finality is not in dispute. The trial Court as also the lower Appellate Court thus erred in seriously coming to the conclusion that plaintiffs’ suit was barred by limitation. Judgment (Ext.D-1) was passed on 22.6.1981 and plaintiffs instituted the instant suit on 1.8.1981. 25. The suit in any event was even otherwise not barred as the suit could have been filed within 12 years from the date when the possession of the defendants become adverse to the plaintiffs, which is specifically not pleaded or pressed in the instant case. 26. From the statements of DW-2, DW-3, DW-5 and DW-6 at best it can be proved that the defendants are in uninterrupted and continuous possession of the suit premises. This, however, by itself would not mean that 15 the defendants claim of adverse possession on the suit land would automatically stands established. 27. Inspite of findings of fact recorded in the earlier proceedings initiated by them the defendants have