IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 540 of 2001. Judgment reserved on 2nd May, 2008 Date of Decision: 6th May, 2008. Jagdish Chand and another …..Appellants. Versus State of H.P. and another …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the appellants: Mr. Y.P.S. Dhaulta, , Advocate. For the Respondents: Ms. Ruma Kaushik, Additional Advocate General. Dev Darshan Sud, Judge. This appeal has been preferred by the plaintiffs against the judgment of the learned Additional District Judge, Mandi, reversing the judgment and decree passed by the learned Senior Sub Judge, Mandi decreeing the suit of the plaintiffs holding them to be the owner of the suit land as described in the plaint. The appeal was admitted by this court on the following question of law:- “Whether the first appellate court has misread and misappreciated the oral and documentary evidence on 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - record to set aside the well reasoned judgment of the trial court and to dismiss the suit of the appellant- plaintiff? The predecessor-in-interest of Ram Rakha, plaintiffs- appellant herein approached the court on the pleadings that the suit land was in possession of Shri Bhagat Ram who was his real brother, who had no heir to succeed him except the plaintiff and that on his death he had succeeded to his estate. S/Sh. Jagdish Chand and Tarsem Lal –appellants are the nephews of Ram Rakha and claim inheritance of his estate. It is pleaded that Shri Bhagat Ram had entered into possession of the suit land somewhere in the year 1954 and constructed a “tapri” (temporary hutment) on the land and after his death, the land along with the “tapir” came in the possession of Sh. Ram Rakha and after him to the two plaintiffs. The defendants resisted the suit on a number of grounds including the ground that even if it is found as a fact that defendants had the knowledge of the purported hostile possession of Shri Bhagat Ram, such possession came to an end on his death and the plaintiffs cannot tack their possession for purposes of claiming title. The learned trial court, on examination of the evidence Ext. P-A Jamabandi for the year 1987-88, which records Shri Bhagat Ram as an encroacher, Ext. P-B Missal Haquiat Bandobast Jadeed and the evidence of PW-2 Shri Sunder Lal, PW-3 Shri Chaman Lal and PW-4 Shri Kanshi Ram came to the - 3 - conclusion that the plaintiff(s) had been able to establish his hostile possession on the suit land. The appeal having been preferred by the State, the findings of the learned trial court were set aside. The learned appellate court held that in view of the decision in Parwatabai vs. Sonabai and others AIR 1997 SC 381, the evidence on the record did not justify the conclusion that the plaintiffs were in adverse possession of the land. The learned District Judge, considered the evidence of PW-1 to PW-4 in detail and held that the statements were merely oral version and not supported by any documentary evidence on record to prove especially revenue record which would have been conclusive. The plaintiffs have made no attempt to bring any revenue record to establish his plea of adverse possession. The learned court observed that mere possession cannot be held to be adverse possession within the meaning of Article 65 of the Limitation Act unless the ingredients in law were established on the record. Learned counsel for the respondents has placed reliance on the judgment of Hon’ble Supreme Court in State of Rajasthan vs. Harphool Singh (2000) 5 SCC 652 holding:- “12 So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involve destruction of right\title of the State to immovable property and conferring upon a third party encroacher title where, he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, adverted to the - 4 - ordinary classical requirement - that it should be nec vi nec clam nec precario -that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secretary of State for India in Council v. Debendra Lal Khan (1933) 61 I. A. 78 (PC), strongly relied for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil and Others v. Balwant Alias Balasaheb Babusaheb Patil (dead) by LRs etc. JT 1995 (1) SC 370 AIR 1995 SC 895, it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who assert such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts. 13. The High Court without even a cursory scrutiny of the legality and propriety of the finding in order to ascertain at least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of 'adverse possession' stood substantiated, mechanically seem to have accorded its approval to the claim of title made by the plaintiff merely on the basis that both the - 5 - Courts below have found the plaintiff to be owner of the property. Indisputably the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile and continuous possession with the required animus as laid down by Courts should be proved for a continuous period of 30 years. Admittedly, the plaintiff claims to have put up the construction in 1955 and absolutely there is no concrete and independent material to prove the same,. except an oral assertion. The story of his father having been there even earlier to 1955 was not projected either before the A. D. M. when the plaintiff submitted his defence, or in the plaint when the suit was filed but for the first time introduced only at the stage of trial when examined as Public witness 1. When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiff's allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiff's father nor was there any specific finding supported by any evidence, in this regard. The father of the plaintiff was also an employee of the Telephone Department. It is not as though, if their story of such long possession is true, there would be no correspondence or record to show that his father or the plaintiff were there - 6 - before 1981. The relevance of the electricity bill to the property in question itself has been questioned and no effort has been taken by the plaintiff to correlate the electricity and water bill to the property claimed by examining any official witnesses connected with those records. White that be the factual position, it is beyond comprehension as to how anyone expected to reasonably and judiciously adjudicate a claim of title by objective process of reasoning could have come to the conclusion that the legal requirement of 30 years of continuous, hostile and open possession with the required animus stood satisfied and proved on such perfunctory and slender material on record in the case. The first appellate court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate court and the second appellate court also withdraws itself into recluse apparently taking umbrage under Section 100, Criminal Procedure Code. , the inevitable casualty is justice and approval of such rank injustice would be only result in gross miscarriage of justice.” I cannot take a view different from that which has been held by the appellate court which rightly concluded that revenue record prior to 1987-88 (Ext. P-A) has not been produced and proved on the record or any attempt made for its production. Possession howsoever long cannot be treated adverse unless the - 7 - necessary ingredients to establish are pleaded and proved. Surely, if the possession of Shri Bhagat Ram was entered as “Nazaij” (unlawful) in Ext. P-A Jamabandi for the year 1987-88, this entry was being carried on from the previous record or it was incorporated in this document for the first time. The plaintiff has made no attempt to establish the fact as to whether prior to Ext. P-A such an entry has been made or not. Ext. P-B which is Missal Haquiat Bandobast Jadeed does not give any date. In these circumstances, it cannot be said that the learned District Judge had misread the pleadings or has not appreciated the evidence in right perspective. This question is therefore, answered in favour of the appellant. It is held that there is no infirmity in the judgment of the learned District Judge, the appeal therefore, is dismissed. Learned counsel for the appellants submits that the plaintiffs-appellant belongs to the lower strata of the society and that uninterrupted possession having been established for a long period, it would be in the interest of justice in case grant of this land is made in favour of the plaintiffs-appellants on such terms and conditions as deemed just and appropriate by the State. In this appeal, no such direction can be issued save and except that in case the appellants approach the respondent-State by a detailed representation, such representation shall be considered sympathetically by the respondents-State uninfluenced by this judgment, which would be decided in accordance with law. Representation, if any, shall be made within ten weeks from today - 8 - and be disposed of within the period of eight weeks from the date when it is received by the respondent-State. There shall be no order as to costs. 6th May, 2008. (Dev Darshan Sud), (cm) Judge.