IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 287/2011 Reserved on: 13.7.2011 Decided on: 19.7. 2011 ___________________________________________________ Abhia @ Abhi Ram and others. …Appellants. Versus State of H.P. and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Virender Singh Chauhan, Advocate. For the Respondents : Mr. R.P. Singh, Asstt. A.G. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 5.3.2011 rendered by the learned Additional District Judge, Solan in Civil Appeal No.61-S/13 of 2009. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellants- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit for declaration to the effect that they were owners in possession of the suit 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 land, detailed in the plaint, and the revenue entries qua the suit land in the name of State in the column of ownership were wrong, illegal and void and not binding upon them and the they have also sought a decree for perpetual injunction restraining the defendants from causing any inference in the suit land in any manner whatsoever. In the alter alternative, they have claimed ownership by way of adverse possession as they had been coming in continuous possession of the suit land as owners on payment of land revenue since 1958-59 and the possession was never given up and the same had been continuous and ripened into the right of ownership. According to them, the cause of action arose in their favour when the Halqua Patwari of village Bisha threatened to interfere in the suit land on the basis of wrong revenue entries. 3. The suit was contested by the defendants by filing written statement. According to them, the Civil Court has no jurisdiction under section 171 of the Himachal Pradesh Land Revenue Act. On merits, defendants denied that the plaintiffs are owners in possession of the suit land. According to them, the entries in the revenue record showing the ownership of the State of Himachal Pradesh were correct. The 3 plaintiffs have not chosen to file replication to the written statement filed by the defendants. The trial court framed the issues on 3.8.2005. The trial court decreed the suit on 30.7.2009. Defendants preferred an appeal before the learned Additional District Judge, Solan. He allowed the same on 5.3.2011. Hence, the present Regular Second Appeal. 4. Mr. Virender Singh Chauhan on the basis of the substantial questions of law framed alongwith the memorandum of appeal has vehemently argued that the learned Additional District Judge has mis-appreciated the oral as well as documentary evidence led by the parties. According to him, Ex.PW-1/B to Ex.PW-1/K and Ex.DW-4/A to Ex.DW-4/F have not been correctly appreciated. According to him, as per these entries, plaintiffs were in possession as tenants and they have become owners by virtue of section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. According to him, the suit land could not be declared forest land as per Ex.DW-2/B. He has also argued that in the alternative, the plaintiffs have become owners by way of adverse possession. 5. Mr. R.P. Singh, learned Assistant Advocate General has supported the judgment and decree dated 4 5.3.2011 passed by the Additional District Judge, Solan. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Plaintiff No.1, Abhi Ram, has appeared as PW-1. He has led his evidence by way of affidavit Ex.PW-1/A. He has tendered copy of jamabandi for the year 1954-55 (Ex.PW-1/B), copies of mutation Ex.PW- 1/C and Ex. PW-1/D, copy of jamabandi for the year 1958-59 (Ex.PW-1/E), copy of jamabandi for the year 1962-63 (Ex.PW-1/F), copy of jamabandi for the year 1967-68 (Ex.PW-1/G), copy of Fard Badar Ex.PW-1/H, copy of jamabandi for the year 1981-82 (Ex.PW-1/J), copy of jamabandi for the year 1995-96 (Ex.PW-1/K), copy of power of attorney Ex.PW-1/L, copy of notice Ex. PW-1/M, copy of postal receipt Ex.PW-1/P. He has denied the suggestion that the State Government was in possession of the suit land. He has also denied the suggestion with regard to correctness of the revenue entries pertaining to the suit land. 8. PW-2 Krishan Singh has also led his evidence by way of affidavit Ex.PW-2/A. He has supported the version of PW-1. According to him, the plaintiffs were in possession of the suit land as Gair 5 Maurusi tenants but the revenue entries to this effect have not been corrected as per law. He has also deposed that the mutation of the suit land as “Jungle Dom Bisha” is incorrect. 9. Defendants have produced six witnesses. DW-1 Kewal Ram, Block Forest Officer has led his evidence by way of affidavit Ex.DW-1/A. According to the contents of affidavit, State of Himachal Pradesh was the owner in possession of the suit land and the same was in possession of the Forest Department. He has asserted that the entries made to this effect qua State Government were correct. According to him, as per notification No. 40 dated 4.1.1953, the suit land was declared as demarcated protected forest. The boundaries were also fixed on the spot as per the boundary register. The Forest Department was carrying various activities in the suit land such as plantation, protection, improvement of forest etc. Trees like Ban, Cheel and Deodar were planted on the suit land. According to him, towards upper side of the suit land, there was wild vegetation and towards lower side, village Bisha was situated. He has stated that he has not seen the revenue record pertaining to suit land for the period earlier to the year 1950. He did not know whether the 6 suit land was assessed to land revenue. He has denied the suggestion that there was no forest in the name of D-62. 10. DW-2 Sanjeev Kumar, Range Officer has led his evidence by way of affidavit Ex.DW-2/A. He has placed on record copy of notification dated 4.1.1953 Ex.DW-2/B. He has denied the suggestion that the suit land was assessed to land revenue. He did not know whether the State Government has initiated the proceedings against the plaintiffs or not. He has also testified that the State Government has acquired the suit land vide settlement in the year 1938. 11. DW-3 Sant Ram has translated mutation Nos. 772, 773 and 784 (Ex.DW-3/A to Ex.DW-3/C) in Hindi language. 12. DW-4 Devinder Kumar, Patwari, Patwar Circle, Bisha, Tehsil Kandaghat has proved the copies of jamabandi for the years 1958-59, 1981-82, 1986-87, 1991-92, 1996-97 and 2001-02 as Ex.DW-4/A to Ex.DW-4/F, respectively. 13. DW-5 Kaka Ram, Forest Kanungo has tendered his evidence by way of affidavit Ex.DW-5/A. He has also placed on record of rights pertaining to forest No. 59/58, Bisha, presently numbered D-62 as 7 Ex.DW-5/B and copy of Shajra Kistwar as Ex.DW-5/C. He has admitted that in Ex.DW-5/B, year has not been mentioned. He has also admitted that the land record pertaining to the settlement is recorded in Musabi. He did not know whether the suit land was ever acquired by the State Government. 14. DW-6 Jagdish Rai, Field Kanungo has tendered his evidence by way of affidavit Ex.DW-6/A. According to him, the suit land was mutated in favour of the Forest Department vide mutation Nos. 772, 773 and 784 dated 11.10.1957, 11.12.1957 and 17.8.1957, respectively. He has admitted that the possession of the plaintiffs was recorded as Gair Mourusi tenants and ` 7.33 was assessed as the land revenue of the suit land. 15. What emerges from the evidence led by both the parties is that the State had acquired the suit land vide settlement in the year 1938. The suit land was declared as forest land as per notification No.40 dated 4.1.1953 Ex.DW-2/B. the mutations were attested in favour of the Forest Department vide mutation Nos. 772, 773 and 784 dated 11.10.1957, 11.12.1957 and 17.8.1957, respectively. The plaintiffs have challenged the entries and have filed the present suit only on 28.8.2004. Since the suit land was declared as Forest 8 land, plaintiffs could not be declared as owners as held by the trial court under the Himachal Pradesh Tenancy and Land Reforms Act. There is no tangible evidence brought on record that either the plaintiffs or their predecessor-in-interest have ever paid the rent. It is settled law that tenancy is a bilateral act. The plea taken by the plaintiffs that they have become owner of the suit land by way of adverse possession was mutually destructive. Case of the plaintiffs was that they and their predecessor-in-interest were coming in open, hostile and continuous possession of the suit land but they have also taken up the plea that they were tenants over the suit land. If they were the tenants of the suit land, they have acknowledged the State as owner of the suit property. This plea has rightly been rejected by the first appellate court. The trial court has given no findings at all how the plaintiffs have become owners by way of adverse possession. The adverse possession has to be pleaded and the evidence has to be led about the commencement of the possession and when the possession became adverse and hostile to the true owner. According to Ex.PW-1/D, the suit land has been shown as ‘Jungle Dom Bisa’. According to jamabandi for the year 1958-59 in the column of 9 ownership ‘Jungle Dom Bisa’ has been incorporated and the classification of the land is ‘Ghasni’. These entries have been reiterated in jamabandis Ex.PW-1/F, Ex.PW-1/G and Ex.PW-1/J. According to mutation Ex.DW-3/A1, the land has been entered as forest and rights qua cutting of grass were maintained over the suit land. In Jalsa Aam, the mutation was attested on 17.8.1957. According to Ex.DW-3/B-1, the mutation was attested in Jalsa Aam on 17.8.1957. Ex.DW-3/C was also attested in Jalsa Aam on 17.8.1957. The land was declared as forest land as per notification dated 4.1.1953 Ex.DW-2/B. In Jamabandis Ex.DW-4/B, DW-4/C, DW-4/D and Ex.DW-4/F, the State of Himachal Pradesh has been shown as owner of the suit land. These entries have not been assailed by the plaintiffs. The plaintiffs had not chosen to file replication to the written statement filed by the defendant-State. There is no contemporaneous evidence brought on record by the plaintiffs to prove that they were in possession and cultivating the suit land as tenants. 16. Their Lordships of the Hon’ble Supreme Court in T. Anjanappa and others versus Somalingappa and another, (2006) 7 SCC 570 have 10 explained the entire concept of adverse possession as under: “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. 14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession. "Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether 11 the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at 902). 15. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. 15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is 12 adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537). 18. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner. 20. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 13 17. Their Lordships of the Hon’ble Supreme Court in P.T. Munichikkanna Reddy and others versus Revamma and others, (2007) 6 SCC 59 have held that 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 owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, 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.” 18. Thereafter their Lordships of the Hon’ble Supreme Court have discussed the new consideration in adverse possession law as under: “10. In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was 14 clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol." 11. This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention 12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. 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 limitation act and it also assists the court to unearth as the intention to dispossess. 13. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`- vis intention to possess. This distinction can be marked very distinctively in the present circumstances. 14. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of 15 the variety and degree which is required for adverse possession to materialize. 15. The High Court observed: "It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession." 16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: "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 found it as a fact that the possession of the appellant was not adverse." 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 16 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." 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 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 17 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." 19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and 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