RSA No.593 of 1985 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.593 of 1985 Date of decision:22.03.2011. Basant Kaur (dead) through her LRs and others ...Appellants Versus Bhag Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Amit Chopra, Advocate, for the appellants. Mr. S.S.Kamoj, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree of the Courts below by which his suit for declaration and permanent injunction has been dismissed. In brief, the case set up by the plaintiff is that he is owner in possession of land measuring 04 Kanals 18 Marlas, comprised in Khewat No.578, Khatauni No.871, Rectangle No.365, Killa No.3/3 measuring 01 Kanal 05 Marlas and Killa No.4/1 measuring 03 Kanals 13 Marlas, situated within the revenue estate of Muktsar, which has been purchased by him from Gajjan Singh and Baggu Singh on 13.05.1965 and since then he is in its possession but name of one Attar Singh Chela Bhai Gulab Singh is recorded in the revenue record despite the fact that said Attar Singh had died 20 years ago. The suit was filed because the defendants threatened to disturb his possession. The suit was contested by the defendants on the ground that the plaintiff is neither owner nor in possession of the suit land rather they are in continuous possession of the suit land for the last more than 40 years as initially it was in possession of Attar Singh Chela Gulab Singh of Dera Bhai Mastan Singh without payment of any RSA No.593 of 1985 -2- ***** rent on account of Dharamarth and after his death Santa Singh, Bhag Singh Chela Mahant Dalip Singh were in possession of the suit land. On the pleadings of the parties, following issues were framed by the learned Trial Court: - “1. Whether the plaintiffs is owner in possession of the suit land and thus entitled to declaration prayed for?OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to the injunction prayed for?OPP. 3. Whether the defendant has become owner by adverse possession?OPD. 4. Relief.” Although the suit of the plaintiff has been dismissed by both the Courts below, yet the learned First Appellate Court has recorded the following findings: - “1. The contention of the learned counsel has force in it only to the extent that Attar Singh died more than 20 years ago so in his personal capacity he cannot be said to be in possession of the suit land. To that extent, the entries in the jamabandi cannot be said to be correct. However, the learned counsel for the respondents submitted that though Attar Singh chela Bhai Gulab Singh is entered to be in possession of the suit land, but his possession in his life time was on behalf of Dera Bhai Mastan Singh and that is why he is entered in the jamabandi as chela Bhai Gulab Singh Bila Lagaan Bawaja Dharam Arth.” “2. If Attar Singh died more than 20 years ago, then the other functionaries of Dera Bhai Mastan Singh continued in possession of the RSA No.593 of 1985 -3- ***** suit land though in jamabandis the name of the Dera is not mentioned.” “3. That after the death of Attar Singh, Mohtmims Kishan Singh and Santa Singh remained in cultivating possession of the suit land and after the death of Santa Singh, Bhag Singh chela entered in possession of the suit land. They have not been recorded in the revenue record as occupants.” “4. If the property was dedicated or gifted to Dera Bhai Mastan Singh as Dharamarth then that gift was complete by delivery of possession and no registered document was required.” “5. “No evidence was produced by the respondents and even Mukhtiar Singh who was examined as DW.1 deposed that Harnam Singh appellant cultivated the suit land for the last 18 years and then two more witnesses of the defendants, who were present were given up having been won over.” “6. Undoubtedly, the defendant did not step into the witness box as the evidence was closed under Order 17 Rule 3 C.P.C. But no adverse inference can be drawn against he respondents on this count as application dated 17.12.1982 was moved by them for permission to produce khasra girdawaris and to examine the defendant but that application was dismissed by the learned lower Court on 22.01.1983.” “7. From long possession, there arises a presumption of adverse possession in favour of the respondents.” RSA No.593 of 1985 -4- ***** “8. Attar Singh remained in possession of the suit property even at the time when it was purchased by the present appellant in the year 1965 and if Attar Singh died earlier then his legal representatives i.e. the Mohtmims of the Dera remained in continuous possession thereof.” The aforesaid findings have been recorded despite the fact that the defendants did not enter the witness box and the only witness examined by them as DW1 had deposed that the appellant is in cultivating possession of the suit land for the last 18 years, but still the learned Courts below have dismissed the suit of the plaintiff on the ground that the defendants have become the owners of the suit property by virtue of adverse possession because there was an entry in the revenue record as Gair Marusi Bila Lagaan Bawajah Dharamarth. Learned counsel for the appellants has submitted that the substantial question of law involved in this appeal is as to “whether the defendants can be declared to be owners in possession of the land in dispute only on account of long possession without proving their possession to be open, continuous and hostile against the true owner and the entry in the revenue record relied upon by the defendants as Bila Lagaan Bawajah Dharamarth could prove adverse possession”? The plaintiff has set up his title on the basis of a registered sale deed dated 13.05.1965, whereas the defendants have set up their title on the basis of their possession which is alleged to have matured into ownership on the ground of adverse possession. There is no evidence on record from which it could be found that after the death of Attar Singh, the entries are there in favour of Kishan Singh and Santa Singh or anyone else from Dera Bhai Mastan Singh. The learned Courts below had presumed it and on the basis thereof it has been observed that since they are in long possession, therefore, it has matured into ownership. Learned counsel for the appellants has submitted that firstly the possession, howsoever it may be long, until and unless it is open, RSA No.593 of 1985 -5- ***** continuous and hostile to the knowledge of the true owner, it does not mature into ownership in terms of Article 65 of the Limitation Act, 1963 [for short “the Act”] which provides that a suit for possession cannot be decided after the expiry of 12 years if the possession of the defendant had become adverse to the plaintiff. Learned counsel for the appellants has relied upon a decision of the Supreme Court in the case of Roop Singh (dead) through LRs Vs. Ram Singh (dead) through LRs, (2000) 3 Supreme Court Cases 708 in which it was held that permissive possession for a long period do not convert into adverse possession until and unless it is proved by cogent and convincing evidence that hostile animus and possession was in the knowledge of the real owner. In the case of Thakur Kishan Singh (Dead) Vs. Arvind Kumar, (1994) 6 Supreme Court Cases 591, it was held that when initial possession is under a licence or is permissive, burden lies on the person claiming adverse possession to establish by cogent evidence that the possession became adverse. In the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and others, AIR 2009 Supreme Court 103, it was held by the Supreme Court that a 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. It was also held that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. There is, therefore, an urgent need of fresh look regarding the law on adverse possession. The Supreme Court recommended to RSA No.593 of 1985 -6- ***** the Union of India to seriously consider and make suitable changes in the law of adverse possession. In the case of Annakili Vs. Vedanayagam and others, AIR 2008 Supreme Court 346 it was held by the Supreme Court that in order to prove adverse possession not only animus possidendi is required to be shown but it must be shown to exist at the commencement of possession and mere long possession for a period of more than 12 years without anything more would not ripen into title of adverse possession. In the case of P.T. Munichikkanna Reddy and others Vs. Revamma and others, 2007(2) RCR (Civil) 847 it was held by the Supreme Court that a person in possession of land for over 50 years but not knowing who was owner of land does not become owner by virtue of adverse possession as the adverse possession must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner and the test of nec vi, nec clam, nec precario, i.e. “not by force, not stealth, nor the license of the owner” has been an established notion of law. Thus, from the law laid down by the Supreme Court, the person claiming adverse possession has to plead disclaimer of title from a particular date with hostility and knowledge of the true owner alongwith his acquiescence for a continuous uninterrupted period prescribed under Article 65 of the Act, but the permissive possession from the beginning does not become adverse merely with the passage of long time in the absence of requisite animus. Learned counsel for the appellants has submitted that the entry in the jamabandi even in favour of Attar Singh was Gair Marusi Bila Lagaan Bawajah Dharamarth, i.e. possession for religious purpose without payment of rent, and the said entry would not be sufficient to hold that the possession has become adverse. In this regard, he has relied upon a decision in the case of Joginder Pal alias Voginder Pal Vs. Angad Singh and others, 1983 PLJ 14, in which it was held that non-payment of rent would not be sufficient for holding possession of the plaintiff as adverse. Moreover, it is submitted that it is not the case of the defendants that they have entered into the land in dispute forcibly at the time when it was RSA No.593 of 1985 -7- ***** in possession of their vendors, rather the entry is that they are in possession because of Dharamarth, meaning thereby that their possession was permissive and in that regard, the learned First Appellate Court has recorded a contrary finding by holding that the property was gifted or dedicated to the defendants. If it is gifted or dedicated, then the defendants cannot be held to be in unauthorized possession from the beginning to the knowledge of the owner and as such the finding recorded by the learned Courts below while dismissing the suit that the defendants have become owners of the suit land by virtue of adverse possession is patently illegal. In reply, learned counsel for the respondents has basically relied upon the findings recorded by the learned Courts below much-less the learned First Appellate Court and has submitted that after the death of Attar Singh, the land remained in possession of Dera Bhai Mastan Singh and due to long possession to the knowledge of the owners, they have become the owners by virtue of adverse possession. It is now well settled that in order to prove adverse possession, the defendants have to prove that their possession was unauthorized from the very beginning and they must plead disclaimer of title from a particular date, their hostile assertion and acquiescence of the true owner for over a period of 12 years as provided under Article 65 of the Act, but a permissive possession at the inception does not become adverse merely by passing of long time in the absence of requisite animus. In my opinion, the possession of the defendants was permissive because they were given possession of land in dispute, as per the entry Gair Marusi Bila Laggan Bawajah Dharamarth, i.e. for the religious purposes without payment of any rent. Thus, their original entry in the land in dispute was not forcible but with the permission of the owner which cannot be converted into adverse possession in view of the various judgments of the Supreme Court which have been discussed hereinabove. Hence, the question of law framed in the beginning of the judgment is found to be a substantial in terms of Section 100 of the Code of Civil Procedure, 1908 which calls for an interference by this Court and consequently, the present appeal is allowed, judgment and decree of the Courts RSA No.593 of 1985 -8- ***** below are hereby set aside by answering the substantial question of law in favour of the plaintiff and against the defendants by holding that the defendants were in permissive possession without payment of rent for discharging religious functions and their possession has never been hostile to the knowledge of the owner and had not ripened into ownership by way of adverse possession. In the facts and circumstances of the case, the parties to the appeal are directed to bear their own costs. March 22, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE