IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 136 of 2007 Reserved on : 31st March, 2008 Date of Decision: 25th April, 2008. Amar Singh Appellant Versus Jai Singh Respondent 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 respondent: Mr.Bhupender Gupta, Sr. Advocate, with Mr.Janesh Gupta, Advocate. Sanjay Karol, J. With the consent of the learned senior counsel for the parties, the appeal is heard finally, at admission stage, on the following substantial questions of law:- “1. Whether the plea of adverse possession having not been raised specially in accordance with the provisions of law, therefore, the defendant cannot be held to be owner of the suit land. 2. Whether the claim of the defendant being mutually destructive in as much as that the plea of purchase of the suit land was raised by him by claiming that his father had purchased the land in suit from the father of the plaintiff, therefore, he having failed to prove the purchase of the suit Whether the reporters of Local Papers are allowed to see the Judgment? 2 land, therefore, on the basis of title the plaintiff is entitled to the decree for possession. 3. Whether the learned District Judge having failed to record reasons to interfere with the findings as recorded by him is not accordance with law and the same is liable to be set aside.? One Seengh Ram, was the recorded owner of land comprised in Khasra No.449 measuring 1 Bigha 18 Biswas, situated at Chak Mool Matiyana, District Shimla, H.P. (hereinafter referred to suit land). Amar Singh son of Shri Seengh Ram, filed Civil suit No. 193/1 of 1995/93, seeking possession of the suit land by way of redemption and accounts under Section 6 of H.P. Debt Reduction Act, 1976 (hereinafter referred to as the Act) on the ground that in the year 1965 Seengh Ram had mortgaged the suit land for a sum of Rs.500/- when possession was handed over to the defendant and since the defendant had been enjoying the fruits and deriving benefits more than double the mortgaged amount from the land, he was entitled to redeem the land without any payment. Defendant Jai Singh resisted the suit taking a defence that his father, (predecessor-in-interest), had purchased the suit land from Seengh Ram and thus he was possessing the same as owner thereof. In the alternative, the defence of adverse possession was also pleaded by the defendant. The said suit was dismissed in terms of judgment and decree dated 30.12.1997 passed by learned Sub Judge, Ist Class, Theog, which was, however, reversed in an appeal being Civil Appeal No. 34- 3 S/13 of 98/2001, by the District Judge in terms of his judgment and decree dated 13.11.2000. However, on a particular issue the same was reversed by this Court in RSA No.640/2001 on 29.3.2001 and the matter was remanded back to the District Judge for consideration afresh, who in terms of its judgment and decree dated 11.9.2001 decreed the suit. Jai Singh’s, plea of sale and adverse possession was disbelieved, therefore, he assailed the same before this Court and in terms of judgment and decree dated 9.8.2001 passed in RSA No. 570 of 2001 this Court held that Amar Singh had failed to show that the land stood mortgaged to defendant’s predecessor-in-interest and consequently held that the suit was not maintainable under the provisions of the ‘Act’ and, therefore, the Court would have no jurisdiction to grant an alternate relief of possession. Consequently, the judgment and decree passed by District Judge was set aside and the plaintiff’s suit was dismissed. However, while dismissing the same this Court made the following observations:- “Be it stated that the dismissal of the suit of the plaintiff shall not preclude him from claiming possession of the land in dispute by taking recourse to such action as may be available to him under the law.” Shri Amar Singh, plaintiff, consequently filed Civil Suit No. 177-1 of 2002 (subject matter of the present proceedings) claiming possession of the suit land as owner deriving his title from the revenue entries as per the revenue record pertaining to the year 1986-87. Shri Jai Singh, defendant, in his written statement dated 22.3.2003, while admitting the prior litigation inter se between the parties, specifically pleaded that the land in question was sold to his father about 4 45 years ago for a sum of Rs.600/- when the possession was also delivered, conferring absolute ownership on the suit land. As successor- in-interest, he stepped into the shoes of his father, therefore, the possession of the defendant is nec-vi-nec calm, nec precarie for the last 45 years. That plaintiff’s father was the owner of the suit land, however, was not disputed. In the replication, the plaintiff disputed the defendant’s plea of sale and reiterated that the possession was handed over to the defendant’s father only as a usufruct mortgagee for a sum of Rs.500/-. The trial Court framed the following issues:- “1. Whether the defendant is in wrongful possession of the suit land, if so its effect? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiff is estopped to file the present suit due to his act, conduct and acquiescence? OPD. 4. Whether the suit of the plaintiff is barred by limitation? OPD. 5. Whether the suit is barred by principle of resjudicata?OPD. 6. Whether the suit land was sold to the father of the defendant for the sum of Rs.600/-? OPD. 7. If sale is not proved, whether the defendant has become owner by way of adverse possession? OPD. 8. Relief.” Based on the material on record, the plaintiff’s suit was decreed in terms of judgment and decree dated 19.8.2004 passed by Civil Judge (Jr. Division), Theog, District Shimla, H.P. All the issues were decided in favour of the plaintiff. The trial Court held that the defendant had failed to prove the factum of sale of the suit land by the predecessor-in-interest of the plaintiff in favour of his 5 predecessor-in-interest for a sum of Rs.600/-. On both the pleas i.e. sale and adverse possession, the Court found that the pleadings and evidence to be vague, unspecific and not corroborated by any documentary evidence. In Civil Appeal No.70-S/13 of 2005/04, filed by Jai Singh, the District Judge accepted his plea and held that the defendant was in adverse possession of the suit land since 1965 and remained in possession thereof for a period of more than 12 years prior to the initiation of litigation between the parties. The judgment and decree dated 19.8.2004 were set aside and the plaintiff’s suit was dismissed in terms of judgment and decree dated 12.1.2007 which is now are subject matter of the present appeal. Learned senior counsel appearing for the appellant has argued that (1) the findings of fact recorded by the Court below with regard to adverse possession are not borne out from the pleadings, evidence and other material on record; (2) no suggestion whatsoever with regard to plea of adverse possession has been put to the plaintiff, and (3) the defendant’s plea of ownership by way of sale and adverse possession are mutually destructive. He has referred to and relied upon decisions reported in Mohan Lal (deceased) through his LRs Kachru and others vs. Mirza Abdul Gaffar and another, (1996) 1 SCC 639, Virendra Nath through P.A. Holder R.R.Gupta vs. Mohd. Jamil and others, (2004) 6 SCC 140, Karnataka Board of Wakf vs. Government of India and others, (2004) 10 SCC 779, Roop Singh (dead) through L.Rs. vs. Ram Singh (dead) through L.Rs., AIR 2000 SC 1485, Vasantiben Prahladji Nayak and others vs. Somnath Muljibhai Nayak and others, (2004) 3 SCC 376. 6 Per contra, learned senior counsel appearing for the respondent has supported the judgment for the reasons set out therein and has also argued that the defendant’s possession on the suit land having been admitted by the plaintiff since the year 1965 would only show that the defendant had perfected his title by way of adverse possession. He has referred to and relied upon the decisions reported in Shankru and others vs. Suharu Devi and others, 200(1) Shim. L.C. 502) Smt. Kimtu vs. Smt. Rama Dogra and others, 1997(2) Civil Court Cases 514 (H.P.), Angara Bhoiani and others v. Kanheri Misra and another, AIR 1981 Orissa 93, Laxmibai vs. Thoreppa, AIR 1982 Karnataka 248 and Raju and another vs. Muthuammal and others, AIR 2004 Mad. 134to press the point that where a person enters into the possession of the property under an invalid transaction of transfer by way of sale etc. and if he continues in possession for more than twelve years, then, even if the illegal transfer by itself may not convey the title, but, the adverse possession would commence from the date of entering into the possession under the said transaction. He has also argued that in the present case no substantial question of law arises for consideration by this Court. I have heard the learned counsel for the parties and perused the record. The guiding principles for determining substantial questions of law have been laid down by the Apex court from time to time. The Apex Court in P.Chandrasekharan and others vs. S.Kanakarajan and others, (2007) 5 SCC 669, has held as under:- “The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal 7 principles have not been applied in appreciating the evidence….” “Even in a case where evidence is misread, the High Court would have power to interfere….” In Moses Wilson & ors. vs. Kastubra and others, AIR 2008 SC 379, the Court has held as under: “…It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & ors, (AIR 1999 SC 2213), the Court has held as under:- “In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence” The material on record has to be considered keeping in view the aforesaid principles of law laid down by the Apex Court. 8 After giving the background of the previous litigation with regard to his title in the plaint, the plaintiff has specifically pleaded as under:- “7. That in view of the submissions made above, it is quite clear that the plaintiff is owner of the land, which was earlier entered against Khata No.44, Khatauni No. 67, measuring 1 Bigha 18 Biswas, as per the Jamabandi for the year 1986-87. The defendant has no right, title and interest of any kind over any portion of the suit land. His occupation of this land is, for the reasons as explained above, without any basis and, therefore, the plaintiff is entitled to decree for possession of this land.” In the written statement dated 22.3.2003, the defendant has pleaded as under:- “2. In reply of the contents of para 2 of the plaint, it is correct that the defendant in the written statement filed, denied the contents of creation of the mortgage in 1965 and it was pleaded that the land in suit is sold to the father of the defendant for a sum of Rs.600/- as the father of the defendant managed to help to get back the same land as Shri Singh had alienated the suit land situated in Batara and Mool Matiana. The sum of Rs.600/- were given by him to those persons and Sh. Singh Ram in consideration of the same amount sold the suit land to the father of the defendant about 45 years back absolutely by delivering the possession of the same and constituting him the absolute owner of the suit land. After the death the father of the defendant, the deft. Stepped into the shoes of the deft. As the owner of the suit land. So the father till his death possessed the suit land as owner and after his death the deft. As owner. The possession of the father together with 9 the defendant is nec-vi-nec calm, nec precarie for the last 45 years even aforesaid alienation is proved invalid. …..” “7. ….. In fact the suit land is sold by Singh Ram the father of the plaintiff to the father of the defendant near about 55 years back for a sum of Rs.600/- as set out in the written statement filed in earlier suit and entire facts disclosed in para 2 of the written statement filed in earlier suit which be read as part of this para of the written statement and reply of this para of the plaint. The possession of the defendant as well as that of the father of the deft. Is since that time over the suit land. In case the transaction of sale is not proved or held as invalid in that event the defendant claims owner in possession of the suit land by adverse possession. The possession of the father and defendant together is nec- vi-nec, calm, nec precarie for the last 55 years now. The revenue entries are incorrect.” (Emphasis supplied) From the aforesaid it is clear that specific details and particulars with regard to exact date of sale and/or adverse possession of the suit land have not been furnished by the defendant. Even with regard to year of sale, there is contradiction in the written statement. In para 2 it is averred that the land was sold 45 years ago and in para 7, it is averred that the land was sold 55 years ago. Amar Singh, plaintiff, examined himself as PW-1 and deposed that his father was owner in possession of the suit land, which was mortgaged in the year 1965 for a sum of Rs.500/-. After the death of his father and mother Smt. Gami, he became the absolute owner of the suit land and the defendant’s possession on the same is permissive. The suit land was never sold by his father and the defendant’s possession is not 10 adverse to him. In spite of extensive cross-examination he has been consistent, cogent and clear in his testimony. In examination-in-chief, Jai Singh defendant has simply stated that the suit land was purchased by his father for a sum of Rs.600/- approximately 53 years ago. He has deposed that his possession is continuous, uninterrupted and he has always claimed himself to be the owner. However, in his cross-examination he has admitted that the land in question was being cultivated prior to his having attaining the age of identification. He could not substantiate the plea taken in the written statement that the land was redeemed from one Kalia and sold to his predecessor-in-interest. He is not even aware as to on which date the land was purchased. When confronted with his statement made in an earlier litigation, he denied having made such a statement. However, the plaintiff has proved on record his statement recorded in an earlier litigation inter se between the parties wherein he has categorically stated that “It is correct that the disputed land was never sold to my father”. The sworn testimony of the other defendant’s witnesses is also vague and unspecific with regard to date from which the possession of the defendant had become hostile. From Ext.P-1, copy of Jamabandi (revenue record) for the year 1998-99, placed on record by the plaintiff, it is clear that plaintiff is the recorded owner and the defendant is shown to be in possession of the suit land. From the evidence on record it is clear that the defendant has failed to prove the sale transaction alleged to have taken place between the predecessors-in-interest of the parties. There is no oral and 11 documentary evidence except for the self-serving statement of defendant to establish the sale transaction. Even the first Appellate Court has not found favour with the defendant’s plea of sale in the impugned judgment. The plaintiff’s suit was dismissed on the acceptance of the defendant’s plea of adverse possession alone. The defendant has accepted the same and not filed any appeal. Even though it has had no bearing at all, but has been noticed that even in an earlier litigation the defendant’s plea of sale was specifically disbelieved by the District Judge in its judgment and decree dated 11.9.2001 and while reversing the same even this Court specifically held that the Court had no jurisdiction under the Act to pass a decree of alternate relief of possession, therefore, gave liberty to the plaintiff to recover possession of the suit premises in accordance with law. Be that as it may be, admittedly the defendant is in possession of the suit land. Therefore, the question for consideration would be as to whether his possession is adverse and hostile to that of the plaintiff and as to whether the defendant has perfected his title on account of the same. In P.T. Munichikkanna Reddy and others vs. Revamma and others, 2007(6) SCC 59, the Apex Court has held as under:- “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………” “…..Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through 12 efflux of time. Adverse possession has been termed as a negative and consequential right effected only because somebody else’s positive right to access the court is barred by operation of law. As against rights of the owner of the property on paper, 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. “…once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession…” “…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 is established. Successful application in this regard distances the title of the land from the owner of the property on paper. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the owner of the property on paper, 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….” “….Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and 13 genuine desire to dispossess and step into the shoes of the owner of the property on paper. This test forms the basis of decision in the instant case…” “…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 the Limitation Act and it also assists the court to unearth the intention to dispossess. …” “The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the 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 or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper….” 14 “….Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession….” “16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: (SCC p. 594, para 5) "5.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. (emphasis supplied)” “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 15 factual possession of the property for 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