IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.27 of 2001. Judgment reserved on 10.8.2011 Date of decision: 29.8.2011 _________________________________________________ Surinder Kumar ….Appellant. Versus Smt. Vidya Devi ….Respondent.. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the appellant : Mr. Rajnish Maniktala, Advocate. For respondents : Mr. Raman Sethi, Advocate. Surinder Singh, Judge. The present Regular Second Appeal filed by the appellant under Section 100 of the Code of Civil Procedure was admitted on the following substantial questions of law: (i) Whether the mere possession is indicative of claiming ownership in the denial of title? (ii) Whether the possession simplicitor can mature in the adverse possession? 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 2. Briefly, the facts giving rise to the present appeal can be stated thus. The appellant hereinafter to be referred to as ‘the plaintiff’ filed civil suit No. 316 of 1994 against the respondent hereinafter to be called as ‘the defendant’, for seeking relief of declaration on the ground that the entries in the revenue record showing the defendant in possession of the suit-land are against factual position, thus wrong and illegal, consequently prayed for injunction, in the alternative sought possession, if during the pendency of the suit, the suit land is encroached upon by the defendant. 3. The case of the plaintiff is that she has a house at Palampur, though she was residing at Delhi and also goes aboard. In the month of July, 1994 she visited Palampur to renovate her house adjacent the suit land, she came to know about the wrong entries in the column of possession in the revenue record, which are nonest of her rights and sought the above relief. 4. The defendant resisted and contested the suit and contended in his written statement that the suit - 3 - land has been in his cultivating possession to the knowledge of the plaintiff for the last more than 30 years. Thus he perfected the title by way of adverse possession. The case of the defendant was also that the plaintiff had settled at Delhi where she was residing and prayed for the dismissal of the suit. The defendant also took up the preliminary objections of estoppel, maintainability of the suit, cause of action and also questioned the locus-standi of the plaintiff to file the suit. 5. In replication, plaintiff denied the preliminary objections raised by the defendant and re-affirmed the even paras of the plaint on merits. 6. On the pleadings of the parties, following issues were framed by the learned trial Court: 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the revenue entries showing the defendant in the possession of the suit land, are wrong and illegal and not binding on the plaintiff, as alleged? OPP 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction against the defendant? OPP - 4 - 4. Whether in the alternative, the plaintiff is entitled to the relief of possession of the suit land? OPP 5. Whether the defendant has become the owner of the suit land by way of adverse possession, as alleged? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiff is estopped by her act and conduct from filing the suit? OPD 8. Whether the plaintiff has no locus standi? OPD 9. Whether the plaintiff has no cause of action? OPD 10. Whether the suit is bad for not valuing properly, as alleged? OPD 11. Relief. 7. After the complete trial of the suit, the learned trial Court held the plaintiff as owner of the suit land, but not in possession. The entries in favour of the defendant were held to be wrong and illegal, consequently issue No.1 was partly decided in favour of the plaintiff and on all the issues except issue No.4 findings were returned in negative, as such, the suit was decreed for possession. 8. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the - 5 - learned trial Court, the defendant filed appeal before the learned first appellate Court assailing the findings on issues No.4 and 5 being contrary to the record. The learned first appellate Court reappraised the evidence on record, examined the nature and possession of the defendant and while relying upon the statement of the defendant alone coupled with the entries in the revenue record held that the possession of the defendant was adequate and in continuity in publicity and extent, from which inference of defendant being in adverse possession was drawn and came to the conclusion that the defendant is in adverse possession of the suit land, as such the impugned judgment and decree passed by the learned trial Court was reversed and the suit of the plaintiff was dismissed. Thus the present Regular Second Appeal by the plaintiff, which was admitted on the above substantial questions of law. 9. Heard learned Counsel for the parties and went through the record. 10. Adverse possession must be adequate, in continuity, in publicity and extent and a plea is required at least to show when possession becomes - 6 - adverse so that the starting point of limitation against the party affected can be found. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, the Apex Court held that a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Certainly long possession is not necessarily adverse possession and the prayer clause is also not a substitute for a plea. In the instant case, pleadings of the defendant lack this aspect of the case. 11. In P.T. Munichikkanna Reddy and others v. Revamma and others (2007) 6 SCC 59, the Apex Court observed that the Courts around the world are taking unkind continuity to the adverse possession which are also kept in mind and further considered various facets of law of adverse possession and laid down various propositions, including the following: “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 - 7 - typical adverse possession lie in it being open, continuous and hostile…. 8….. to assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provisions thereby jurisprudentially ‘willful negligent ’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 possession 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.” 12. Further the Supreme Court in Annakili v. A. Vedanayagam, (2007) 7 SCC 482, observed in para 24 as under: “24. "Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must - 8 - have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title." 13. The above principle was reiterated by the Supreme Court in Mandal Revenue Officer v. Goundla Venkaiah and another, (2010) 2 SCC 461. 14. The net result which is deducible from the above judgments is that the possession of the person claiming adverse possession should be nec-vi nec clam nec-precario, i.e., open, in continuity, peaceful and hostile. The burden to prove whereof always lies upon the claimant. It is equally settled that howsoever long possession may be, it cannot be adverse unless it passes the tests of adequacy, continuity, exclusiveness and publicity. Presumption and probabilities cannot be substituted for evidence. The adverse possession should also be shown to be brought to the knowledge of the real owner and it can never be confused with the abandonment. - 9 - 15. In the instant case, the defendant alleged his possession, in his written for the last about more than 30 years, but as DW1 stated that he was in possession for the last 50-60 years. Pertinently, he no where stated that he had acquired the title thereto by remaining in hostile possession for a statutory period of more than 12 years to the knowledge of the plaintiff. 16. Learned Counsel for the defendant contended that the hostility of the defendant with respect to the hostile possession is writ large as he was reflected in the column of possession of the Jamabandi for the year 1987-88 Ext.P2 qua the suit land. But this entry is a stray entry without any status, which appears to have been smuggled into revenue record as not having been made in accordance with the HP Land Revenue Act nor there was any order of the Court to induct him in possession. Further, this entry is contrary to the earlier entries reflected in Exts.P3 and P4. PW1 categorically stated that she came to know for the first time about the wrong entries when she visited her property in the month of July, 1994 and the defendant was found cutting grass from the suit - 10 - land. On being asked it was he who told that the entry was made in his favour. The revenue Officer has no authority and jurisdiction to make a change in the record-of-rights save and except to the extent permissible under the law that too after due notice to the affected party, failing which no presumption is attached to such an entry. 17. Therefore, in the light of the above discussion, the defendant has miserably failed to prove that he had perfected the title by adverse possession and as per settled law referred above, the mere possession cannot mature into adverse possession nor it is indicative of the ownership in the denial of title. Therefore, the findings of the learned first appellate Court that the plaintiff could be presumed to have the knowledge of the possession of the defendant are wrong and illegal. 18. For the above stated reasons, the impugned judgment and decree of reversal passed by the first appellate Court in Civil Appeal No.86-P/XIII/1997, decided on 7.11.2000, are not in-conformity to the principles of law as laid down by the Apex Court supra, hence set aside. Consequently, the judgment - 11 - and decree passed by the learned trial Court in Civil Suit No.316 of 1994, decided on 31.7.1997 are hereby restored. In result, this Regular Second Appeal is allowed, the suit of the plaintiff for possession with respect to the suit land stands decreed. The substantial questions of law are accordingly answered. Parties are left to bear their own costs. August 29, 2011 (Surinder Singh), (rc) Judge.