IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.210 of 1998. Judgment Reserved on: 18.05.2009. Date of decision: 01.06.2009. Krishan Chand & Others ….Appellants Versus Jeet Ram & Another ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellants: Mr.Rajnish K.Lal, Advocate. For the Respondents: Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This is the defendants’ appeal against the concurrent findings of the two Courts below decreeing the suit of the plaintiffs-respondents granting a decree for permanent prohibitory injunction restraining the appellants-defendants from interfering with the possession of the plaintiffs on land measuring 25 Bighas 11 Biswas in Khasra No.503, entered in Khewat No.65 min, Khatauni No.126 as per Jamabandi for the year 1974-75, situated in Mauja Tood, Pargana Kaimli- Kalan, Tehsil and District Shimla, (hereinafter referred to as the “suit land”). 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 The plaintiffs instituted the suit in a representative capacity pleading that they and the other residents of the village are recorded as owners in possession of the suit land. In July, 1980, the plaintiffs were surprised to learn that the Assistant Collector 2nd Grade, Shimla, had attested mutation No.348 Ex.DX- 1 to DX-3 on 21.6.1980 in favour of the defendants by deleting the names of the plaintiffs and others by recording that proprietary rights had been conferred on the defendants. The specific allegation made against the defendants was that Kishan Chand appellant was employed as peon in the Tehsil Office, Shimla and he, in connivance with the Revenue Staff, had got his name entered in possession of about 3 Bighas of land and thereafter the entries in the Khasra Girdavari were changed recording him as non-occupancy tenant although there was no rent being paid by him etc. The plaintiff pleaded that these entries were recorded without authority as there was nothing on the record to show that the procedure prescribed by Himachal Pradesh Land Revenue Act, 1953 (Act No.6 of 1954) had been followed authorizing such change/alteration. The defendants resisted the suit by pleading that they were in possession as tenants of the suit land and are now owners by operation of law i.e. The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No.8 of 1974). A specific plea was raised that they had acquired the right of tenancy and ownership by adverse possession being in continuous, open and hostile possession for the last more than 40 years and that the revenue 3 record only reflected the true and factual position. The allegations of manipulation were denied as false. The learned trial Court settled 15 issues. The burden of proof of issues No.1 and 2 i.e. the ownership and possession of the plaintiffs and their entitlement to the injunction was on the plaintiffs and these issues were held in their favour. Issue No.14-A, as to whether the plaintiffs are entitled to the relief of possession, was also held in their favour. The onus of the other 12 issues was on the defendants which have been held against them. Two issues, namely, issue Nos.11 and 13, as to whether the predecessor-in-interest of the defendants was inducted as tenant on the suit land and whether they have acquired tenancy rights by way of adverse possession were decided against them. The suit of the plaintiffs was accordingly decreed as prayed for. The defendants-appellants herein, reiterated their defence before the learned appellate Court which negatived the contentions raised after a reappraisal of the evidence and pleadings. The defendants are now in second appeal before this Court. This appeal was admitted on substantial questions of law No.1, 3, 4 and 5 which are:- “1. Whether the suit of the plaintiff was within limitation and the defendants-appellants had matured 4 their title through adverse possession? 3. Whether the oral and documentary evidence have not been considered in its proper prospective especially the statements of DW-2, Smt.Aruna Kapoor, DW-3, Sh.Krishan Chand, DW-4, H.C. Shiv Singh, documents Ex.P-3 Jamabandi for the year 1969- 70, P-4 Khasra Girdawari, P-5 Khasra Girdawari 1970-75, DW-2/A statements, Ex.DW-4/1 to DW-4/4? 4. Whether on the basis of Ex.DX-1 to Ex.DX-3, mutationNo.348, the defendants’ title stood established thereby debarring the suit seeking relief of injunction? 5. Whether the civil court had jurisdiction in view of Chunia Devi’s case 1991(1) S.L.C. 223? Before taking up these questions, question No.4 may be considered as the first question to be decided. Question No.4: Learned counsel has urged that proprietary rights were conferred on the appellants herein in accordance with law and has emphasized that Ex.DX-1 to DX-3 which are the basis and foundation for claiming ownership under Section 104 of the 5 H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the `Act’). In Besru vs. Shibu, 1999(1) Shim.L.C. 343, this Court has held:- “10. Admittedly, in the present case no attempt was made by the Assistant Collector 2nd Grade to serve the plaintiff in accordance with law. As such, the mutation is void ab initio being violative of the principles of natural justice. It can be held so far another reason that it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only Assistant Collector of the Ist Grade was the competent Land Reforms Officer to hold inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27th/29th September, 1995 whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of Ist Grade for purposes of Chapter X of the Act under which Section 104, pertaining to acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector Ist Grade were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far the present case is 6 concerned, from the perusal of mutation, it is clear that it was attested by the Assistant Collector 2nd Grade who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8)(a) of Section 104 of the Act.” By Notification No.1-8/68-Rev.1 issued by the competent Authority under Section 86 of the Act, it is only the Assistant Collector Ist Grade, who is empowered to take-up proceedings of conferment of proprietary rights. Notification reads:- “No.1-8/68-Rev.1- In exercise of the powers vested in him under sub-section (1) of section 86 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No.8 of 1974) and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, is pleased to confer on all the Tehsildars in Himachal Pradesh, all the powers exercisable by an Assistant Collector of First Grade, for the purposes of Chapter IX of the aforesaid Act, within their respective jurisdiction, with immediate effect.” 7 It is undisputed that the provision of conferment of proprietary rights by tenants is contained in Chapter-IX of the Act as aforesaid. These proceedings are, therefore, void ab initio, having been conducted by an officer who is not empowered to exercise power to grant proprietary rights or to perform any other ancialling act. The very basis set up by the defendants for claiming ownership is, therefore, without any basis. This question would have concluded the entire controversy, however, since the appeal has been admitted on other questions, I am taking them up for consideration. Question No.5: This question is answered against the appellants. The jurisdiction of the Civil Court is not ousted as pleaded. The decisions in Pritam Singh vs. Krishan Kumar, 1997(1) Sim.L.C. 255, Birbal vs. Udhami 1992(1) Sim.L.C. and Shankar vs. Rukmani, 2003(1) Sim.L.C. 300 are clear and unequivocal that where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue officials and the jurisdiction of the Civil Court is not barred. In Rukmani’s case supra this Court held:- “After analyzing the judgment in Chuhniya Devi v. Jindu Ram’s case (supra), we have no 8 doubt that the jurisdiction of the Civil Court is barred under the Act if the dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction.” In the present case the very basis and foundation of conferment of proprietary rights has been questioned. The case pleaded by the plaintiffs is one of suppression of facts, exercise of powers by an officer not competent to do so and the very basis of tenancy has been challenged. This question is, therefore, answered against the appellants. Questions No.1 and 2: Both these questions are taken up together for consideration. Learned counsel has submitted with ability that the possession of the plaintiffs is established by the record produced in the case. He has drawn my attention to the statements of DW- 2, Smt.Aruna Kapoor, who had recorded the evidence of the parties in Criminal Proceedings, DW-3, Shri Kishan Chand and 9 DW-4, HC Shri Shiv Singh. According to him, these statements established the uninterrupted possession of the appellants openly, without any hindrance and as of right. Learned counsel urges that the ingredients of adverse possession i.e. nec vi, nec clam, nec precario have been established. He places reliance upon Ex.P-3, Jamabandi for the year 1969-70, Ex.P-4, Khasra Girdawari, Ex.P-5 Khasra Girdawari for the year 1970-75 and statements Ex.DW-4/1 to Ex.DW-4/4, statements in criminal proceedings Ex.DW-2/A and Ex.DW-4/1 to Ex.DW-4/4. In support of his contention he referred to the judgments of the Supreme Court in P.T.Munichikkanna Reddy and Others vs. Revamma and Others, (2007)6 SCC 59 and Des Raj & Others vs. Bhagat Ram (Dead) by LRs. and Others, (2007)9 SCC 641 in extensor to urge that the title of the plaintiffs–respondents was extinguished. In P.T. Munichikkanna Reddy’s case, the Supreme Court elaborating on the concept of adverse possession held:- “CHARACTERIZING ADVERSE POSSESSION – 5. 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. [see Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City 10 of Little Rock 227 Ark. 1085 : 303 S. W. 2d 569 (1957); Monnot v. Murphy 207 N. Y. 240, 100 N. E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A. L. R. 1(1929 ).] 6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, 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 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 statute under claim of right or colour of title.(See American Jurisprudence, Vol. 3, 2d, p.81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of limitation statutes, that the intention to dispossess can not be given a complete go by. Simple application of limitation shall not be enough by 11 itself for the success of an adverse possession claim. 7. To understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co 1963 AC 510, [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: (Fairweather case 1963 AC 510, (1962) WLR 1020, (1962)2 ALL ER 288, ALL ER pp.291 G-292 C) … … … … … … … … … … “ 8. Therefore, 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 12 urgency and intention in the upkeep of the property. 11. This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention 13. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-a-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 the variety and degree which is required for adverse possession to materialize. 22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Ors.(2004)10 SCC in the following terms: (SCC p.785 para 779). “Physical fact of exclusive possession and the animus possidendi to hold as owner in 13 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”. 34. … … … … … The ingredients of adverse possession have succinctly been stated by this Court in S. M. Karim v. Mst. Bibi Sakina (AIR 64 SC 1245) in the following terms: (AIR p.1256, para 5). “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so 14 that the starting point of limitation against the party affected can be found. [See also M. Durai v. Muthu (2007)3 SCC 114]. 35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto (2005)8 SCC 330, stating: (SCC p.340, paras 29-30). “29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004)3 SCC 376). 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, (2004)1 SCC 271)(SCC para 21.)” 15 36. In Mohammadbhai Kasambhai Sheikh and Ors. v. Abdulla Kasambhai Sheikh (2004) 13 SCC 385, this Court held: (SCC p.386, para 4) “But as has been held in Mahomedally Tyebally v. Safiabai, (1939-40)67 IA 406, AIR 1940 PC 215 the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim.” 16 37. The question has been considered at some length recently in T. Anjanappa and Ors. v. Somalingappa and Anr. (2006) 7 SCC 570, wherein it was opined:(SCC p.577, para 21). “21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable.” [see also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors. 2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar and Ors.(2006) 11 SCC 600]” Learned counsel has emphasized in detail that the evidence on record, more especially of the witnesses as noticed above, coupled with the statement of the defendants and the 17 revenue record, clearly establishes the animus possidendi and the intention to oust the plaintiff from possession. He submits that this possession was adequate in time, open, and peaceful to the knowledge of the plaintiff and without any hindrance and therefore the defendants were entitled to ownership rights, I cannot persuade myself to hold that the ingredients of adverse possession are established. From the evidence on record and after detailed consideration of these documents, the learned Courts below have negatived the contentions of the defendants. Even otherwise from the pleadings I find that the pleadings are not precise and the only allegations made for establishing adverse possession are in paragraph-5 of the written statement which reads:- “5. Paras 4 to 7 of the plaint as stated are absolutely wrong and are emphatically denied. It is denied that the defendants were not in possession of the property as tenants. In facts the defendants have been in possession of the property since the time of their father of the entire land. Previously they were in possession of the property as tenants and now as owners. The defendants had, in any event, acquired the right of tenancy or in any event, ownership, by adverse possession being in continuous, open and hostile possession as tenants or in the alternative as owners for the last 40 years. It is denied that the entries were fraudulently obtained or factually wrong. It is further denied that the order of the Asstt. Collector Similar Land Reforms Officer are void 18 and without jurisdiction. It is further denied that the defendants have threatened to interfere with the possession of the property. So the question of extending threats to the plaintiffs does not arise. The plaintiffs have made false and incorrect statements and are not entitled to the relief claimed.” These are no pleadings in the eyes of law to establish adverse possession. The case can be looked at from another perspective. DW-3 Kishan Chand, who appeared in the witness box, has categorically admitted in evidence that he has no proof with him to show the relationship between landlord and tenant that is to say he could not produce any document or receipt to show that he was either paying rent or that any tenancy was created. In this view of the admission, I do not find any merit in the submissions made by the learned counsel appearing for the appellants. Both these questions are, therefore, decided against the appellants. I hold that there is no evidence to show that the possessory rights of the appellants or their predecessor-in- interest over the suit land was by way of tenancy or that their possession has actually matured into adverse possession, as pleaded which pleadings in any event are contradictory because possession of tenancy is not adverse but consensual. These questions are answered against the plaintiff. This appeal is accordingly dismissed. There shall be no order as to costs. June 1, 2009. (Dev Darshan Sud) (aks) Judge.