Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 83 of 2010. Decided on: July 6, 2010. Kishori Lal. …… Appellant. Versus Hansa Devi. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant : Mr. G.L. Palsara, Advocate. For the respondent : Mr. M.S. Guleria, Advocate. Surinder Singh, J (oral). Heard and gone through the records of the Courts below. 2. Appellant filed a suit with respect to the land comprised in Khasra No.424, measuring 0-01-17 bighas, situated in Muja Malhanu, Tehsil Sadar, District Mandi, H.P. He disputed the entries in the revenue record in name of Smt. Manorma and Chandrawati. He alleged his ownership and possession of the suit property and further in the same breath contended that previously the aforesaid Khasra number belonging to the State of - 2 - Himachal Pradesh, where upon Smt. Kanshi was a tenant and acquired the proprietory rights. She became its owner in the year 1976 and the appellant forcibly occupied the aforesaid land in the month of November, 1976. His possession being open, continuous, peaceful and hostile to the knowledge of the true owner, thus he perfected the title by way of adverse possession. It was also alleged that the respondent was causing interference in the suit property, thus sought declaration that he has become the owner of the suit land by way of adverse possession with consequential relief of prohibitory injunction. 3. Respondent, while denying his case, contended that the revenue entries are correct. It was averred that Manorma and Chandrawati were previous owners of the land in suit. They sold it to the respondent by executing a sale deed dated 17.6.2002. Resultantly, she became its owner. The possession was with her, therefore, appellant was not entitled for any relief. 4. Significantly, the appellant failed to link the land in suit with the ownership of Smt. Kanshi of which she allegedly acquired the proprietory rights. Secondly, it was his positive case that said Kanshi was ousted in the month - 3 - of November, 1976 from the suit Khasra and thereafter, he came into its possession, openly, peacefully, continuously and hostile to the knowledge of the true owner. He did not adduce any evidence that Smt. Manorma and Chandrawati have been shown wrongly as owners in possession of the land in dispute. In his cross-examination, stated that he took over the possession forcibly from Smt. Kashi in the month of October, 1976 and materially deviated from his pleadings. 5. Thus the Courts below have correctly noticed that the appellant has taken two conflicting stands on oath about the dispossession. Further that the entries in the jamabandi in favour of Manorma and Chandrawati carries presumption of truth, which could not be rebutted by the appellant, rather the occular evidence of the defendant has lent support to it and this fact has also been so reflected in Khasra Girdwari Ex.DW1/D, which is a public record prepared in discharge of official duties. 6. In nut-shell, the adverse possession as asserted by the appellant stands not proved, the onus of which heavily laid upon him. 7. ‘Adverse possession’ in one sense is based on the theory or presumption that the owner has abandoned - 4 - 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. [ P.T Munichikkanna Reddy and Others versus Revamma and Others [ (2007) 6 Supreme Court Cases 59] ]. Further, the Apex Court also observed that the 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. 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 - 5 - 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 statue under claim of right or colour of title. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitation. Limitation statutes as statutes of repose have utility and convenience as their purpose. The Apex Court also observed that nevertheless, there has been change on this front as well, as the right of property is now considered to be only a constitutional or statutory right but also a human right. 8. Therefore, in my considered view against the above background, the person asserting his adverse possession has to plead and prove as to when he perfected his adverse possession. 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 (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner - 6 - of the property on paper, which is required to be proved as a fact. 9. In the instant case, neither the appellant was able to prove that Smt. Kanshi was the owner, as alleged and further that the entries in the revenue record were incorrect and on the top of it, he has miserably failed to prove that his possession was open, peaceful, continuous and hostile to the knowledge of the true owner. In other words, the possession is required to be nec vi nec claim nec precario. 10. There are concurrent findings of facts against the appellant and no question of law much less the substantial questions of law arises, as such, the appeal is dismissed in liminie. CMP No.142 of 2010. In view of the dismissal of the appeal, this application has also been dismissed. Interim Order dated 16.3.2010 is vacated. (Surinder Singh ) Judge July 6, 2010. (Pds)