IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 161 of 1996 Reserved on : 1st April, 2008 Date of Decision: 1st May, 2008 Bala Ram and another Appellants Versus Dharam Pal and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting1? Yes For the appellant: Mr. G. D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. For the respondents: Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. Sanjay Karol, J. Plaintiff Shri Jhalu Ram, predecessor-in-interest of the present respondents, filed a Civil suit against the present appellants- defendants praying for a decree of permanent prohibitory injunction pleading ownership and possession of the land comprised in Khasra Nos. 617 and 618, measuring 2.14 bighas, situated at Mauza Trai, Pargana Karoli, Tehsil and District Shimla (hereinafter referred to as the ‘suit land’). The plaintiff being a poor Harijan and an illiterate person was being pressurized by the defendants being influential persons, to surrender the Whether the reporters of Local Papers are allowed to see the Judgment? 2 possession of the suit land. During the pendency of the suit, the plaint was amended seeking possession of the suit land. The defendants resisted the suit on the ground that the possession of the suit land was handed over to them about 18 years ago and pursuant to their application dated 20.5.1988 seeking correction of revenue entries, when the Field Kanungo visited the spot on 9.9.1988, the plaintiff admitted their possession. Revenue entries reflecting the ownership and title of the plaintiff was disputed by the defendants. Based on the pleadings of the parties, the trial Court framed the following issues:- “1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed? OPP 2. Whether the revenue entries in favour of the plaintiff are wrong and illegal as alleged? OPD 3. Whether the suit is not maintainable? OPD. 4. Whether the defendants are in hostile possession of the suit land for the last 18 years as alleged, if so, its effect? OPD 5. Whether the plaintiff is entitled to possession in respect of the suit land? OPP 6. Relief. The plaintiff’s suit registered as Case No.5/1 of 1989 titled as Jhalu Ram vs. Bala Ram and another, was decreed on 13.9.1999 by the Sub Judge Ist Class, Court No.3, Shimla, and a decree of possession of the suit land was passed in his favour. Aggrieved by the same, the defendants filed Civil Appeal No. 86-S/13 of 1991, titled as Bala Ram and 3 another vs. Jhalu Ram, before the District Judge, which also stood dismissed, on merits, in terms of judgment and decree dated 2.9.1995. The trial Court, based on the revenue record as also the deposition of the parties witnesses held; (i) the plaintiff to be owner but, found the defendants to be in possession of the suit land. (ii) The plaintiff a non-occupancy tenant had become owner by virtue of the provisions of H. P. Tenancy and Land Reforms Act (hereinafter referred to as ‘the Revenue Act’), which was evident from the Revenue Record. (iii) The defendants had not perfected their title by way of adverse possession as it could not be established that their possession on the suit land was open, hostile, uninterrupted and continuous to the knowledge of the plaintiff. (iv) The defendants plea that the possession of the land was handed over to them pursuant to an oral family arrangement entered into between the parties was also not accepted for want of any evidence. The first Appellate Court, after framing the point for determination examined the material and upheld the findings of the Court below. Thus, the present appeal. Learned senior counsel for the appellants has argued that since the widows were respondents as co-sharers in the revenue record, there could have been no automatic vestment of any right in favour of the plaintiff who possessed the land as non-occupancy tenant. That the plaintiff had become owner of the land is not borne out from the record as no order of conferment of title was placed on record. Plaintiff being out of possession, in any event no automatic vestment could have taken place. The revenue entries do not confer any title and, therefore, in the absence 4 of any pleading or proof to establish the plaintiff’s ownership the finding of fact recorded by the Court below needs to be reversed. Per contra, learned Senior Counsel for the respondent has supported the judgment for the reasons set out in the same and has also referred to and relied upon the judgment of this Court in State of Maharashtra v. Ramdas Shrinivas Nayak and another (ILR 1983 (HP Series) SC-7), to submit that the defendants are bound by the admission and the provisions of the H.P. Tenancy and Land Reforms Act to contend that mere dispossession of the plaintiff would not defeat his statutory right and title and also would not tantamount to relinquishment of his right and title. The appeal was admitted on the following substantial questions of law: “1. Whether the respondent being out of possession of the suit land has not acquired ownership rights under provisions of HP Tenancy and Land Reforms Act?. 2. Whether there has been mis-reading and mis- appreciation of pleadings and evidence on record. 3. Whether respondent lost his title to the suit land on account of relinquishment of his rights and possession over the suit land? 4. Whether the respondent in the absence of title to the suit property cannot claim possession? 5. Whether the controversy as involved has neither been considered nor determined?.” I have heard the learned counsel for the parties and gone through the record. The contention of the appellants needs to be rejected keeping in view the ratio of law laid down by the Apex Court in Ramdas 5 Shrinivas Nayak (supra) and the following observation recorded by the Court below in the impugned judgment.:- “The learned counsel for the appellants has admitted that the plaintiff was the tenant under his father and he was granted proprietary rights under the H.P. Tenancy and Land Reforms Act.” Yet I have examined the record minutely. The plaintiff’s suit is based on the revenue record showing him to be the owner. With regard to the date of possession, the defendants have made contradictory averments in the written statement. In para-2 of the preliminary objections, they have so stated that the plaintiff handed over the possession 5 years prior to the making of the statement dated 9.9.1988 before the Field Kanungo. On merits, it has been so stated that the possession was handed over about 18 years ago. The written statement is dated 4.4.1989. The defendants had filed the application for correction of revenue entries only on 20.5.1988. The defendants also pleaded ownership as having perfected their title on the ground of adverse possession, open to the plaintiff‘s knowledge. In replication, these facts were denied by the plaintiff. Even with regard to the exact date, time and period of possession, the defendants witnesses S/Shri Dutta Ram (DW-1) and Chet Ram (DW-2) have further contradicted themselves. In fact no material particulars to substantiate the plea of adverse possession have either been pleaded or proved. On 26.8.1991 DW-2 clearly deposed that the suit land had been with the defendants only for the last 8 years and in Court the defendants have admitted to be in cultivating possession only 6 from the year 1985 . Shri Pritam Singh (DW-3) has yet given another version of the defendants being in possession for the last 17 years, without being specific with regard to the date, month and year. The revenue entries, being consistent from the year 1973- 74 upto 1987-88 (Ext.P-1 to Ext.P-8) prove the plaintiff to be non- occupancy tenant and subsequently owner by virtue thereof under the “Revenue Act”. The plaintiff had become owner immediately with the enforcement of the Revenue Act in the year 1975 and even as per the defendants own case the plaintiff handed over the possession 5 years prior to 9.9.1988, therefore, there can be no question of relinquishment of title, abandonment of suit land by the plaintiff or the defendants having perfected their title on the plea of adverse possession. The suit was filed in 1989 itself. It cannot be held that the defendants are in adverse possession of the suit land and have perfected their title over the same. It is true that the order of vestment has not been placed on record but however, it is to be noticed that the order of conferment of proprietary rights as reflected in the revenue record, based on the Revenue Act was never assailed by the defendants at any time under the Revenue Act. The conferment of the title is prior to the dispossession of the owner who at some point in time was a tenant in the premises. In any event, the provisions of Section 31 of the ‘Revenue Act’ bar relinquishment of any right by a tenant. Therefore, the defendants’ plea that the plaintiff had relinquished his rights in favour of the defendants is untenable. In any case, the defendants’ stand is mutually destructive and self contradictory. They have pleaded ownership by inheritance, by relinquishment of rights 7 by the plaintiff in their favour; and by way of adverse possession. It is not open for the defendants to now challenge the settled position about the plaintiff’s ownership on the ground that widows being co-sharers no automatic vestment could have taken place. Apart from the fact that the plea is being raised for the first time here during the course of the hearing, the widows have neither challenged the same nor are parties to the litigation. The plea of adverse possession entails the presumption that the owner abandoned the property and the owner has acquiesced to the hostile acts and claims of the possessor. It has to be open, continuous and hostile. Once a party proves its title, the onus of proof to prove the claim of title by adverse possession is on the other party. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession and mere length of time would not amount to adverse possession. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 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 defendants’ possession became adverse. (Karnataka Board of Wakf vs. Government of India and others (2004) 10 SCC 779, Vasantiben Prahladji Nayak and others vs. Somnath Muljibhai Nayak and others (2004(3) SCC 376, P.T. Munichikkanna Reddy and others vs. Revamma and others (2007(6) SCC 59 & Thakur Kishan Singh (dead) v. Arvind Kumar (1994(6) SCC 591). 8 Learned counsel for the appellants has referred to a decision reported in Swami Krishnanand Govindanand v. M. D. Oswal Hosiery (Regd.); (2002(3) SCC 39) to contend that the statement made by the counsel is not binding. The Tribunal under the provisions of Delhi Rent Control Act, 1958 was statutorily required to record its satisfaction necessitating the eviction, which was not done and the counsel’s statement conceding the claim was not accepted for this reason, which is not the case in hand. The plaintiff has been able to prove and establish his title and, therefore, the suit was decreed. The ratio of law laid down in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee and others (2004(7) SCC 708) as referred to and relied upon by the learned counsel for the appellants is, therefore, not applicable. Learned counsel has further referred to a decision reported in Balwant Singh and another v. Daulat Singh (dead) by LRs and others (AIR 1997 SC 2719) and Devchand Kalyan Tandel v. State of Gujarat (AIR 1996 SC 2786) to contend that the entries in the revenue record do not convey or extinguish title. The ratio of law laid down in Jai Narain v. Sarup Singh & Others (1974 PLJ 205) is not applicable for the simple reason the plaintiff dispossessed as owner and not tenant. The suit is thus maintainable and within limitation. In State of H.P v. Keshav Ram (AIR 1997 SCC 2181), the Court was dealing with the matter where the plaintiff sought declaration on the basis of the order passed by the Collector correcting the revenue 9 entries which is not so in the present case as there was an automatic vestment of the title in favour of the plaintiff by virtue of the Revenue Act. In Balwant Singh (supra), the court has in fact held that the entries must be taken to be correct unless the contrary is established. Mutation entry do not convey or extinguish any title but the defendants have taken contradictory and mutually destructive stand. Defendants plea of having perfected title on the basis of adverse possession presupposes plaintiff’s title by virtue of the Revenue Act. There is nothing to establish the plea of relinquishment. The questions of law are answered accordingly. For all the aforesaid reasons, the appeal is dismissed with costs. May 1, 2008. (Sanjay Karol) (rana) Judge.